People v. Bergman CA2/2
Opinion
Filed 8/25/26 P. v. Bergman CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B343801
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA078839-02)
v.
KEVIN MICHAEL BERGMAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Richard M. Goul, Judge. Affirmed.
Corey J. Robins, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Irvi and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Kevin Michael Bergman (defendant) appeals from the order denying his petition for vacatur of his murder conviction and resentencing following an evidentiary hearing pursuant to Penal Code1 section 1172.6, subdivision (d). The trial court found the prosecution had met its burden to show beyond a reasonable doubt that defendant was not entitled to resentencing. Defendant contends the order should be reversed because the court’s findings are not supported by substantial evidence. Defendant also contends he was provided with ineffective assistance of counsel during and after the hearing. We find no merit in either of defendant’s contentions and affirm the trial court’s order.
BACKGROUND
I. Trial evidence A. The events leading to the murder On April 22, 2008, approximately one month before the murder of the victim, Dean Modica, defendant accompanied Modica to the home of Cheryl Maxwell.2 344-345.)~ Modica demanded money from Maxwell for “Harley” parts, and Maxwell refused. As Modica and Maxwell argued and Modica attempted to pry a television from the wall, defendant stood nearby with his hand on what appeared to be the “butt of a gun” in his pocket. When a child appeared, defendant urged Modica, “let’s get out of here,” and the two men left.
On May 17 or 18, 2008, a day or two before the murder, Modica’s next-door neighbor, Deborah Heniger, overheard a
1 Unless otherwise designated, all further statutory references are to the Penal Code. 2 We will refer to this as the “Maxwell incident.”
“heated conversation” between defendant and Modica, during which it appeared defendant was assessing the value of Modica’s belongings. Defendant said to Modica, “Look at this. This seems to be pretty valuable” or “You know what that’s worth?” Sounding irritated or upset, Modica replied, “Yeah, yeah, that’s right. So what?”
Also in the days before the murder, defendant asked Jamey Pender for a ride to Modica’s house “to collect some debt or to get something from [Modica].” Talking about Modica, defendant said, “fuck that guy,” “that guy owes me,” “he’s fucking me around,” and “I’m gonna tax that guy,” which Pender understood to mean defendant was saying he would commit robbery. Pender “[g]ot a bad vibe” and refused to give defendant a ride.
B. The day of the murder: “inventory check” and plan to “tax” Modica
On May 19, 2008, defendant was at the home of Peggy Poloai. David Pickett and Joseph Chaaya were also there. Defendant told Pickett he was angry with Modica about an earlier incident—the Maxwell incident—in which they had been involved, and that Modica “owed him something,” and Pickett should “back [defendant] up.” Poloai overheard defendant ask for Pickett’s “help to go and tax [Modica].” According to Poloai, “tax” meant to rob. Poloai knew Modica sold drugs.
Defendant, sounding angry, called his girlfriend, Celeste Cravey, and demanded she come and get him at Poloai’s house. Chaaya, who was at Poloai’s house to pick up his friend Pickett, noticed defendant was “nervous” and heard him say, “This piece of shit, he owed me money. I want to go get my money back.” Pickett got in the car with Cravey and defendant, and Chaaya followed them to Modica’s house in his own car.
Upon arrival at Modica’s house, Pickett and defendant went inside and were shown where Modica kept his drugs, which, “in retrospect,” Pickett recognized was “casing” or “an inventory check” of Modica’s supply, kept in a room attached to the garage. The visit was friendly. Modica gave defendant “a pretty goodsized amount” of marijuana and possibly some pills, and they left without incident.
Cravey drove defendant back to Poloai’s house. Defendant asked for Poloai’s help to sell the marijuana. Poloai was surprised defendant had so much marijuana to sell and said, “Didn’t you just leave my house broke? You know, all of a sudden, you’re right back at my house with all this weed that you want to sell.” Defendant became “hysterical,” and when Poloai asked if he was alright, defendant indicated he was not and said, he “has to go get some bike. He kept going on about some bike.” Poloai encouraged defendant to calm down and he said, “‘I got to go. I got to go get this bike [or Harley],’ and he left.”
After leaving Poloai’s, Cravey drove defendant to the home of Trevor Cooper and Sean Schuck. While inside with Cooper and Schuck, defendant “was upset” and said he wanted to go back to Modica’s house. Cooper said, “Let’s go over there and talk to him about the [Maxwell] incident” and whether Modica “gave [defendant’s] name to the cops.” Cooper agreed the term “taxing” could mean “robbing.”
Defendant told Cravey he was worried Modica had given his name to the police and was going to “snitch” about defendant’s part in the Maxwell incident. At trial, Cravey testified she did not recall using the term “tax,” but she understood defendant’s purpose for returning to Modica’s house was to take “his dope,” and, although she had told police she
drove defendant and the others back to Modica’s house to “steal the motorcycle,” she did not remember making that statement.
C. The attack and escape Ten to 15 minutes after arriving at Cooper’s house, Cravey drove defendant, along with Schuck and Cooper, back to Modica’s house. Upon arrival, they noticed someone out in front of the house. Defendant said, “We can’t stop here,” and told Cravey to drive around for a few minutes. As they came back around the other person was gone and they saw only Modica in front. Defendant and Schuck greeted Modica and the three men went inside. Cravey and Cooper stayed in the car. Defendant told Cooper “to wait a few minutes and then come in” the house.
Several minutes later, Cooper went to the house to see what was happening. According to Cooper, he heard a “commotion,” like a struggle. Cooper stepped through the front doorway and saw defendant and Modica standing up, struggling with each other with Modica’s back against the wall between the kitchen and the living room. He saw Schuck “running around.” From there, Schuck “went over to where [defendant] and [Modica] were” struggling with each other and jumped or lunged over defendant’s back side and made a “swinging motion” with his hand. Cooper could not “say for certain” if he saw a knife in Schuck’s hand.
After Schuck lunged over defendant, Cooper ran out of the house, yelling, “Dude stabbed him,” and told Cravey to honk the horn because he wanted to get out of there. Cravey testified Cooper was in the house “for a couple minutes” before he came out screaming.
As a result of the honking, a neighbor came outside.
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Filed 8/25/26 P. v. Bergman CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B343801
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA078839-02)
v.
KEVIN MICHAEL BERGMAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Richard M. Goul, Judge. Affirmed.
Corey J. Robins, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Irvi and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Kevin Michael Bergman (defendant) appeals from the order denying his petition for vacatur of his murder conviction and resentencing following an evidentiary hearing pursuant to Penal Code1 section 1172.6, subdivision (d). The trial court found the prosecution had met its burden to show beyond a reasonable doubt that defendant was not entitled to resentencing. Defendant contends the order should be reversed because the court’s findings are not supported by substantial evidence. Defendant also contends he was provided with ineffective assistance of counsel during and after the hearing. We find no merit in either of defendant’s contentions and affirm the trial court’s order.
BACKGROUND
I. Trial evidence A. The events leading to the murder On April 22, 2008, approximately one month before the murder of the victim, Dean Modica, defendant accompanied Modica to the home of Cheryl Maxwell.2 344-345.)~ Modica demanded money from Maxwell for “Harley” parts, and Maxwell refused. As Modica and Maxwell argued and Modica attempted to pry a television from the wall, defendant stood nearby with his hand on what appeared to be the “butt of a gun” in his pocket. When a child appeared, defendant urged Modica, “let’s get out of here,” and the two men left.
On May 17 or 18, 2008, a day or two before the murder, Modica’s next-door neighbor, Deborah Heniger, overheard a
1 Unless otherwise designated, all further statutory references are to the Penal Code. 2 We will refer to this as the “Maxwell incident.”
“heated conversation” between defendant and Modica, during which it appeared defendant was assessing the value of Modica’s belongings. Defendant said to Modica, “Look at this. This seems to be pretty valuable” or “You know what that’s worth?” Sounding irritated or upset, Modica replied, “Yeah, yeah, that’s right. So what?”
Also in the days before the murder, defendant asked Jamey Pender for a ride to Modica’s house “to collect some debt or to get something from [Modica].” Talking about Modica, defendant said, “fuck that guy,” “that guy owes me,” “he’s fucking me around,” and “I’m gonna tax that guy,” which Pender understood to mean defendant was saying he would commit robbery. Pender “[g]ot a bad vibe” and refused to give defendant a ride.
B. The day of the murder: “inventory check” and plan to “tax” Modica
On May 19, 2008, defendant was at the home of Peggy Poloai. David Pickett and Joseph Chaaya were also there. Defendant told Pickett he was angry with Modica about an earlier incident—the Maxwell incident—in which they had been involved, and that Modica “owed him something,” and Pickett should “back [defendant] up.” Poloai overheard defendant ask for Pickett’s “help to go and tax [Modica].” According to Poloai, “tax” meant to rob. Poloai knew Modica sold drugs.
Defendant, sounding angry, called his girlfriend, Celeste Cravey, and demanded she come and get him at Poloai’s house. Chaaya, who was at Poloai’s house to pick up his friend Pickett, noticed defendant was “nervous” and heard him say, “This piece of shit, he owed me money. I want to go get my money back.” Pickett got in the car with Cravey and defendant, and Chaaya followed them to Modica’s house in his own car.
Upon arrival at Modica’s house, Pickett and defendant went inside and were shown where Modica kept his drugs, which, “in retrospect,” Pickett recognized was “casing” or “an inventory check” of Modica’s supply, kept in a room attached to the garage. The visit was friendly. Modica gave defendant “a pretty goodsized amount” of marijuana and possibly some pills, and they left without incident.
Cravey drove defendant back to Poloai’s house. Defendant asked for Poloai’s help to sell the marijuana. Poloai was surprised defendant had so much marijuana to sell and said, “Didn’t you just leave my house broke? You know, all of a sudden, you’re right back at my house with all this weed that you want to sell.” Defendant became “hysterical,” and when Poloai asked if he was alright, defendant indicated he was not and said, he “has to go get some bike. He kept going on about some bike.” Poloai encouraged defendant to calm down and he said, “‘I got to go. I got to go get this bike [or Harley],’ and he left.”
After leaving Poloai’s, Cravey drove defendant to the home of Trevor Cooper and Sean Schuck. While inside with Cooper and Schuck, defendant “was upset” and said he wanted to go back to Modica’s house. Cooper said, “Let’s go over there and talk to him about the [Maxwell] incident” and whether Modica “gave [defendant’s] name to the cops.” Cooper agreed the term “taxing” could mean “robbing.”
Defendant told Cravey he was worried Modica had given his name to the police and was going to “snitch” about defendant’s part in the Maxwell incident. At trial, Cravey testified she did not recall using the term “tax,” but she understood defendant’s purpose for returning to Modica’s house was to take “his dope,” and, although she had told police she
drove defendant and the others back to Modica’s house to “steal the motorcycle,” she did not remember making that statement.
C. The attack and escape Ten to 15 minutes after arriving at Cooper’s house, Cravey drove defendant, along with Schuck and Cooper, back to Modica’s house. Upon arrival, they noticed someone out in front of the house. Defendant said, “We can’t stop here,” and told Cravey to drive around for a few minutes. As they came back around the other person was gone and they saw only Modica in front. Defendant and Schuck greeted Modica and the three men went inside. Cravey and Cooper stayed in the car. Defendant told Cooper “to wait a few minutes and then come in” the house.
Several minutes later, Cooper went to the house to see what was happening. According to Cooper, he heard a “commotion,” like a struggle. Cooper stepped through the front doorway and saw defendant and Modica standing up, struggling with each other with Modica’s back against the wall between the kitchen and the living room. He saw Schuck “running around.” From there, Schuck “went over to where [defendant] and [Modica] were” struggling with each other and jumped or lunged over defendant’s back side and made a “swinging motion” with his hand. Cooper could not “say for certain” if he saw a knife in Schuck’s hand.
After Schuck lunged over defendant, Cooper ran out of the house, yelling, “Dude stabbed him,” and told Cravey to honk the horn because he wanted to get out of there. Cravey testified Cooper was in the house “for a couple minutes” before he came out screaming.
As a result of the honking, a neighbor came outside.
According to Cravey, she heard a motorcycle start, and when she
looked, she saw Schuck open the driveway gate and defendant emerge on the motorcycle. She saw both men look back toward the house. Schuck “went back into the backyard, and then came back out again.” Defendant rode the motorcycle onto the street and away. Cravey followed. Cooper told her to stop when he saw Schuck running down the street trying to catch them. Cravey stopped at the corner and Schuck got in her car.
Cooper testified Schuck ran out the front door and “jumped in the car,” and after they “heard the motorcycle start up” and saw defendant “pulling out” of the driveway, they “took off.”3 Cooper told police he saw blood on defendant’s face as he went by on the motorcycle; Cooper later testified he did not remember that specifically, but he did recall seeing blood on defendant. When Cravey reached the freeway, Cooper handed her a pair of brass knuckles to throw out the car window.
In rebuttal, the People introduced Cooper’s June 30, 2008 recorded interview with Detective Patrick O’Dowd. During the interview, Cooper said defendant asked Cooper to go with defendant to Modica’s house because Modica owed defendant money. Defendant asked Cooper to come along to act as “backup” given his reputation for being a “pretty good fighter,” “pretty good with his hands,” and “an all-around tough guy.”4 Cooper told
3 When asked if it was possible Schuck got in the car at some point after Cravey had already pulled away from the house, Cooper said, “It’s possible.” 4 Cooper did not remember telling police that defendant asked Cooper to go with him to collect a debt from Modica or that Cooper had a reputation for- being a “good person to have as backup.”
police that once he and Schuck were back in Cravey’s car, he saw defendant ride by on Modica’s motorcycle with blood on his face.
D. The neighbors and discovery of the body Heniger, Modica’s next-door neighbor, heard what sounded like “things being moved around violently” in the back of Modica’s home. As she walked out her front door, she saw defendant ride away on Modica’s motorcycle. Heniger expressed fear about appearing in court and was reluctant to identify defendant. However, during a photographic six-pack lineup, Heniger identified defendant as “look[ing] like the guy [she] saw backing [Modica’s] Harley down the driveway” and the guy she saw “talking to [Modica] earlier that day and possibly the day before.”
After seeing defendant leave on Modica’s motorcycle, Heniger summoned Carmen Grimes, Modica’s neighbor on the other side, and they went to Modica’s home. The driveway gate, front door, and security door—all ordinarily kept locked—were open, and the dogs were loose. Grimes testified that Heniger secured the dogs, closed the gate, and went to close the front door, but ran back screaming that something was wrong with Modica and there was blood. When Heniger saw Modica, he raised his hand and then it fell. Grimes called 911.
E. The scene When police and paramedics arrived, Modica was unresponsive with “blood all over his face, chest, legs, everywhere.” Modica’s home suggested a “violent” room-to-room struggle had taken place. There was blood in the living room, the kitchen, and into a bedroom. The doorjamb from the kitchen to the bedroom was bloody and damaged, as though something had run into it, and a human hair was found in the broken wood.
Blood found on the refrigerator indicated an injury there, and blood drops covered the kitchen floor. Modica’s body was found in the living room, just outside the doorway to the kitchen. Also in the kitchen was “a nylon pistol/gun holster,” and in the living room there was the “female portion of a snap or a clasp with a snap-on portion of … some type of nylon material,” which appeared to be “the other side of [the] holster.”
There was also blood on the floor in the rear of the house, where a door in the bedroom led to the driveway and a small room in the garage. There was a significant amount of blood on the rear door to the garage. Blood was also found “on some different items out in the garage on the ground,” including shipping boxes that were scattered on the driveway, and a box cutter and pair of scissors were found in the garage.
A bloody unspent nine-millimeter bullet was found on the bedroom floor, but no gun or other ammunition was found. No money, wallet5 or any evidence of drugs was found on the property. Police found a letter to Modica from law enforcement inquiring about the Maxwell incident. Though the keys to the motorcycle were found near Modica’s body, the motorcycle was capable of being started without a key.
Examination of Modica’s body showed multiple scratches on his face, arms, and chest consistent with blunt force injuries and two stab wounds to the upper back—one piercing the right shoulder blade and the other the left shoulder blade—which had pierced the victim’s lungs. There were small superficial cuts and
5 After leaving Modica’s house, Schuck used Modica’s driver’s license and credit card to purchase gas for Cravey and others.
scratches on Modica’s arms and two cuts on his right lower leg that were classified as defensive wounds.
Based on his injuries, Modica could have survived for as little as a few minutes and up to an hour.
F. The motorcycle At defendant’s request, once everyone had left Modica’s home, Cravey drove herself, Schuck, and Cooper to James Fletcher’s house. Once at Fletcher’s house, defendant put Modica’s motorcycle in the garage, got into Cravey’s car, and they then dropped off Schuck and Cooper.
Cravey and defendant went on to another friend’s house.
While there, defendant was making phone calls, looking for a buyer for the motorcycle. Cravey noticed defendant had specks of blood on his hand(s) and face. Defendant seemed to take pride in the blood and would not wash it off. After being there a few hours, Cravey drove defendant back to Fletcher’s house to pick up the motorcycle.
That evening, defendant sold the motorcycle to Tim Doby for $400. The motorcycle was worth approximately $10,000. The next day, when Doby learned that Modica had been murdered and the motorcycle was stolen, he left the motorcycle near a police station.
When examined, the motorcycle had specks of blood on the headlight area, front wheel brake covers, motor, and ignition. It appeared to be “some type of cast-off” or like the motorcycle was “near the vicinity where blood [was] obviously flowing.”
G. The postoffense actions After Cravey took defendant to Fletcher’s to pick up the motorcycle, defendant instructed Cravey to follow him. Initially she complied for a time but eventually decided she “wanted to get
away from him” and stopped following him. Cravey was “scared to death” and checked into a motel near her home. She called her ex-husband and roommate, Timothy Adle, to come take her home. Adle did so, but when they got to Cravey’s home, defendant was there with another man. Defendant “flipped [Cravey] off” and, because Adle was afraid of defendant, he dropped Cravey off and left.
Poloai saw defendant at approximately 9:00 or 10:00 on the night of the murder. Poloai, who by then knew what had happened to Modica, shook her head at defendant. Appearing upset at Poloai, defendant said, “Is it like that?,” to which Poloai said, “Yeah, it’s like that.”
At some point that evening, defendant, Cravey, Cooper, and Cooper’s girlfriend went to the motel room Cravey had rented. Defendant or Cooper suggested Cravey report her car stolen. Though Cravey agreed, she did not do so.
After staying the night with defendant, Cravey left early the next morning and stayed away from defendant for about three weeks. During that time, defendant looked for her and left angry and threatening voicemails and text messages. In one voicemail the morning after the murder, defendant said, “You better watch it. ’Cuz you might just be n-next mother fucker who comes up missin’.” A day or so after the murder, defendant came to Cravey’s front door. Not wanting to see defendant, Adle went out the back door to the alley and encountered Schuck, who held a knife and said, “[defendant] wants to talk to you.” Adle drove off instead.
Cravey’s car, which had been left at the motel, had its tires slashed and was set on fire by Schuck with the help of defendant.
When Cravey asked defendant if he cut her tires, he said, “I didn’t have the knife. I had a gun.”
A recorded phone call between defendant and Cravey, placed two days before the preliminary hearing, was played for the jury. The call revealed defendant’s efforts to influence Cravey’s testimony. After Cravey told defendant she had been subpoenaed to testify, defendant instructed her to speak to his defense investigator about “how to answer certain questions” “so it doesn’t incriminate [him].” Cravey said she would tell the truth.
H. Pickett’s jail call While in county jail, Pickett placed a phone call to Jennifer Rastorfer, which was recorded and played for the jury. Pickett asked Rastorfer to recall when he, defendant and Chaaya “went by to do that one thing.” He told Rastorfer that Schuck, the guy he met after going to Modica’s house, was also in county jail and Pickett learned Schuck was “fightin’ murder.” Pickett explained to Rastorfer that Schuck and defendant went back to Modica’s house “to finish what [defendant] and [Pickett] had started.” Pickett opined if he “hadn’t jumped in the car with [Chaaya], [he] woulda been in this deep.” II. Evidence presented at the section 1172.6 evidentiary hearing At the hearing, the parties stipulated defendant was not the actual killer.
A. Defendant’s hearing testimony Prior to the murder, defendant had known Modica for 10 years. In exchange for payment, defendant agreed to help Modica collect a debt from Maxwell’s husband on the condition no children would be involved. Once at Maxwell’s house, defendant
was present as Modica and Maxwell argued and Modica attempted to take a television off Maxwell’s wall. During the encounter, a child appeared, and defendant made Modica leave.
Defendant testified the first visit to Modica’s house happened the day before the murder.6 Defendant said Pickett7 gave him a ride to Modica’s and “did some kind of transaction” for pills. That visit ended “fine,” with Modica handing defendant “a pound of some [low quality] weed” that “nobody would want” and saying, “Here. You want to make a couple bucks?”
Just before the murder on May 19, defendant called Modica and asked him to come by and talk about the money defendant believed Modica owed him for the Maxwell incident. Defendant wanted to ask for the money “because [Modica] kept giving [him] the runaround,” and defendant wanted to find out “how much longer” Modica would take to pay him. Defendant asked Cravey to drive him to Modica’s and asked Cooper to come along. Defendant did not really know Schuck and did not want Schuck to go with them to Modica’s, but Cooper “insisted.”
When they arrived at Modica’s house, defendant asked Cooper to come inside with him because defendant knew Modica “had firearms,” but Cooper refused. Cooper told defendant to take Schuck with him, and after indicating he simply would go alone, Schuck “came walking up.” When Modica asked who defendant had with him, defendant vouched for Schuck, and they all went inside the house. Modica and defendant sat on the
6 At trial the testimony was this first visit with Pickett was the same day as the murder. 7 Defendant was not sure this friend’s name was “David Pickett.”
couch, and defendant asked Modica for the money he was owed. Defendant noticed Modica became “frustrated” and questioned why he would owe defendant anything. Then defendant noticed Modica became “very agitated” and was looking behind defendant. Defendant turned to see Schuck “walking around” looking at Modica’s house “seeing what he had.”
Modica got up, but defendant pushed him back down on the couch. Modica said, “what the fuck?” and “jumped back up.” Defendant then pushed him “out of [his] face for a second time.” Just then, Schuck “lunged over [defendant’s] back … making a stabbing motion,” though defendant “did not see a knife at that time.” Defendant was not aware that Schuck brought a knife or from where he got a knife.
Defendant “pushed [him]self in between” Modica and Schuck, and Modica kicked “his feet up,” knocking Schuck’s knife to the living room floor. Defendant pulled out his nine-millimeter gun, pointed it at the back of Schuck’s head, and warned, “Stop, stop. That’s enough, that’s enough.” Schuck did not stop. Defendant chambered a bullet, dislodging a live round from the chamber. Defendant did not know where the bullet landed. Schuck “backed up,” and defendant “kicked the knife away,” released the clip from his gun and put the gun and clip in his pockets. Schuck and Modica kept fighting, and Modica chased Schuck yelling at him to “get the fuck out.” Schuck “took off down the hallway and [Modica] went after him.”
Defendant ran to the front door looking for Cooper, but seeing neither him nor Cravey’s car waiting outside, defendant ran back through the house toward the yard where the motorcycle was kept. Knowing the motorcycle would start without a key, defendant started the engine and backed it out
toward Modica’s gate with no helmet. Schuck “reappeared,” and opened the gate for defendant. Defendant did not see Modica anywhere. Schuck tried to get on the motorcycle, but defendant drove off without him. Defendant saw Schuck run back inside the house and still did not see Cravey’s car. After an unknown number of minutes, Cravey’s car with Schuck and Cooper inside “reappeared behind [him].” Defendant left the motorcycle at Fletcher’s house.
Defendant was afraid of Schuck and knew Schuck was “a very violent person.” Defendant “[a]bsolutely” did not intend to rob Modica; defendant only wanted Modica to “voluntarily give” defendant what he believed he was owed. Defendant insisted he only took the motorcycle because he panicked, not because he intended to steal it. Defendant knew Modica to keep “a sawed-off single shot shotgun … under the couch” and believed he also had “an AK-47 assault rifle.” Defendant was not afraid of Modica but he “knew he was armed and he was a violent person.” During the incident, defendant never noticed Modica was injured and never saw any blood at the scene. Defendant never saw Cooper come to the door during the incident. Defendant never told anyone that he “intended to tax” Modica. Defendant “continued to associate with Sean S[c]huck for a considerable time after the murder.”
B. Detective McMahon’s testimony Detective McMahon testified he conducted a recorded interview with defendant about a month after the offense. During the interview, defendant told McMahon that he saw Cooper come inside Modica’s house during the attack. Defendant said when he saw Modica get stabbed, “[defendant] got sprayed with blood” on his face and his hands. Defendant said he was surprised Modica became “a little upset” when defendant asked
for money. Defendant never told police that he “protested or asked [Schuck] not to go” inside Modica’s home with him.
C. Defendant’s June 27, 2008 police interview At defendant’s request, the transcript of his full police interview was admitted at the evidentiary hearing. The interview, which was not discussed at defendant’s trial, revealed that defendant gave several versions of the events.
In his first account, defendant said that Modica was his friend and he went to pick up money. Schuck followed him into the house. Modica became angry when defendant asked him for money in Modica’s home. When defendant put his hands up to encourage Modica to “relax,” Schuck jumped over defendant and “stabbed [Modica] one time that [defendant] saw.” Defendant blacked out and could not clearly recall what followed. He heard honking, but when he looked outside, Cravey’s car was gone. Leaving Schuck behind, defendant left on Modica’s motorcycle, because he “didn’t want to get stabbed.”
As the interview continued, defendant elaborated. He said he was just “supposed to run in and out” of Modica’s house, and he planned to go in alone. Giving further details of the stabbing, defendant said Modica seemed upset and stood up from the couch, defendant put his hands up as if to say, “wait a minute” and that is when Schuck “flew over [defendant’s] shoulder” and made “one stab, [the] first stab mark” to Modica’s shoulder. Modica had no opportunity to defend himself, and defendant could not intervene. Modica cried out, and an “overspray of some blood … hit [defendant’s] face” and “somehow [he] had some on [his] hands.” Defendant indicated he could no longer see because he “blacked out,” however, he was aware that Cooper came to the front door “real quick” and “tried to stop it,” assuring police
Cooper “wouldn’t be helping [Schuck] that’s for sure.” Cooper turned and ran out. Scared, defendant also ran to the front door, heard honking, and saw “they were already gone” and “the car pull[ed] away.” Rather than run away through the front door, defendant ran back through the house to the rear yard, hopped on the motorcycle, and managed to start it without the keys. As he was trying to get the motorcycle down the driveway, he saw Schuck “peek[] his head out” the back door and “make[] eye contact with [defendant],” he heard him saying something, but he could not understand him over the motorcycle engine. Defendant left on Modica’s motorcycle.
In a third version, defendant told police Modica was unarmed and the attack by Schuck began after only about two minutes. Defendant did not try to stop the attack because it was “too violent” and he “didn’t want to be the one catching the blade.” Defendant recalled seeing Cooper come to the door and running over to Schuck “saying [Schuck], stop.” He heard the car horn, ran to the front door and saw Cravey drive off. He chose to take the motorcycle instead of running out because he “didn’t want to attract attention” and feared Schuck would kill him next. Defendant conceded he had to run past the attack in order to reach the motorcycle but chose “not to look.” Defendant opened the gate on his own and rode away. He was scared of Schuck and remained scared of Schuck after the incident. Before he learned Modica died, defendant planned on returning the motorcycle.
Defendant made further admissions. Despite previously denying having been at Modica’s house buying “weed” earlier that day, defendant admitted Modica had given defendant “weed” during the prior visit. Defendant described the Maxwell incident weeks earlier, saying he went with Modica to help him collect
money and that Modica tried to take a television. Defendant said neither he nor Modica had been armed during the Maxwell incident. Defendant later heard police had contacted Modica about the Maxwell incident, and when defendant called, Modica confirmed he had received a letter from law enforcement. Defendant denied taking Pickett to Modica’s home or selling Modica’s motorcycle. He admitted that after the murder, he and Schuck searched for Cravey at her home and at the motel. He admitted having sent Cravey a text message reading, “Bet you think I popped your tires,” but denied having damaged her car. Defendant defined “tax” as taking something from someone because “they owe somethin’,” but maintained he had never taxed anyone.
Finally, defendant acknowledged he had “fibbed” during portions of the interview. He admitted he sold Modica’s motorcycle for $100 but denied that he went there to steal the motorcycle.
D. Defendant’s rebuttal testimony After the interview transcript was received, defendant again testified. He admitted he lied to police about having a gun. He routinely carried a gun, including on the day of the murder, because he regularly used drugs and frequented “drug houses” where he felt like he needed “protection.” During his police interview, defendant “tried” to tell the truth but was “highly under the influence” and did not remember “[a] lot of stuff.”
Defendant reiterated he only pulled out his gun to stop the fight between Schuck and Modica. He maintained he did not know Schuck was armed until the knife was knocked onto the living room floor. He also acknowledged he saw Cooper come to
the door during the fight but said Cooper never came into the house. III. Procedural background In 2009, a jury convicted defendant of one count of first degree murder (§ 187, subd. (a); count 1). The jury found true the special circumstance allegation that the murder was committed while defendant was engaged in the commission of robbery and burglary (§ 190.2, subd. (a)(17)). Defendant was sentenced to life without the possibility of parole. This court affirmed the judgment on direct appeal. (See People v. Bergman (Feb. 23, 2011, B219309) [nonpub. opn.].)
In 2019, defendant filed a petition for resentencing under former section 1170.95, since renumbered to section 1172.6, which was summarily denied by the trial court. On appeal, this court found the trial court erred in summarily denying the petition based on the pre-Banks8 and pre-Clark9 special circumstance finding that defendant was a major participant who acted with reckless indifference to human life. Accordingly, we remanded the matter to the trial court for an evidentiary hearing. (People v. Bergman (Oct. 26, 2022, B315257) [nonpub. opn.].)
In January 2025, the court held evidentiary hearing, during which defendant and the People admitted additional evidence. Following argument by the parties, the court took the matter under submission. In a written ruling the court denied defendant’s petition.
Defendant timely appealed.
8 People v. Banks (2015) 61 Cal.4th 788 (Banks). 9 People v. Clark (2016) 63 Cal.4th 522 (Clark).
DISCUSSION
I. Substantial evidence supports the trial court’s finding defendant was a major participant who acted with reckless indifference to human life10 Defendant contends the trial court erred in denying his petition for resentencing because “insufficient evidence supports the superior court’s major-participant/reckless indifference findings.” We find substantial evidence does support the trial court’s finding that defendant was a major participant who acted with reckless indifference to human life under the standards articulated in Banks and Clark.
A. The trial court’s findings The trial court noted in its written ruling that it considered the petition, “all the exhibits, transcripts, instructions, motions, oral arguments and testimony[,] including testimony of [defendant].” The court found “beyond a reasonable doubt that [defendant] is guilty of first degree murder.” Specifically, the court found defendant “was a major participant in both felony burglary and felony robbery and acted with reckless indifference to human life.”
10 We address only the trial court’s finding that defendant was a major participant who acted with reckless indifference to human life. In its ruling, the court also found defendant “was an active participant who demonstrated an intent to kill.” To the extent defendant also argues the court used the wrong standard, “active participant who demonstrated an intent to kill,” or he could not be found liable as an aider and abettor, we do not address this claim as we find the record amply supports the court’s finding defendant acted as a major participant who acted with reckless indifference to human life.
The court found defendant’s hearing testimony “minimize[ed] his culpability to be self-serving and not credible.” The court pointed to various facts in support of its ruling:11 (1) defendant was armed and went with Schuck, the killer, to rob Modica in his home; (2) defendant drew his firearm and discharged a live round “from the chamber as [Schuck] swung a knife and stabbed the victim”; (3) defendant pushed Modica to the ground before Schuck stabbed the victim; and (4) defendant ended up “covered with the victim’s blood.”
B. Eligibility for resentencing A defendant is eligible for resentencing under section 1172.6 if he could not have been convicted of murder under the definition of murder as amended by Senate Bill No. 1437 (2017– 2018 Reg. Sess.). (See People v. Lewis (2021) 11 Cal.5th 952, 957.) Prior to 2019, at the time of defendant’s trial, when an accomplice killed another during an inherently dangerous felony such as robbery, an aider and abettor of the robbery could be convicted of murder without a showing of intent to kill or implied malice. (People v. Strong (2022) 13 Cal.5th 698, 704, 707.) Senate Bill No. 1437 added section 189, subdivision (e) to limit felony-murder liability to actual killers, aiders and abettors with the intent to kill, or major participants in the underlying felony who acted with reckless indifference to human life as described in section 190.2, the statute defining the felony-murder special circumstance. (Strong, at pp. 707–708.) When the Legislature added section 189, subdivision (e)(3), it “imported the actus reus and mens rea requirements from the special circumstance
11 Defendant takes issue with many of these findings. We address this claim in part II, post.
statute. ‘It is undisputed that when Senate Bill [No.] 1437 amended Penal Code section 189 to incorporate major participation and reckless indifference requirements, it codified the understanding of those requirements elucidated in Banks and Clark.’” (People v. Emanuel (2025) 17 Cal.5th 867, 883 (Emanuel).) Accordingly, the Supreme Court has instructed that we are to be “guided in this case by [the Supreme Court’s] pronouncements in Banks and Clark, and [its] application of their requirements in [In re] Scoggins [(2020) 9 Cal.5th 667, 677].” (Ibid.)
C. Standard of review Once a defendant has made a prima facie showing of eligibility for relief, an evidentiary hearing is to be conducted pursuant to section 1172.6, subdivision (d). “[T]he burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, … that the petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3); see id., subd. (c).) The trial court sits as an independent fact finder (People v. Vargas (2022) 84 Cal.App.5th 943, 951) and must “‘review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard’” (People v. Oliver (2023) 90 Cal.App.5th 466, 480). On appeal from the denial of a petition after hearing, our task is to determine whether any rational trier of fact could have made the same determination beyond a reasonable doubt. (People v. Vargas, supra, at p. 951.) We defer to the trial court’s resolution of conflicts and credibility determinations. (People v. Clements (2022) 75 Cal.App.5th 276, 298.)
We apply the substantial evidence standard of review. (See People v. Sifuentes (2022) 83 Cal.App.5th 217, 233–234.) Under
the usual substantial evidence standard, “we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies when the conviction rests primarily on circumstantial evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “An appellate court must accept logical inferences that the [trier of fact] might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) “The standard is deferential, but the evidence in support of the judgment must be reasonable, credible, and of solid value; ‘a mere possibility’ or ‘[s]peculation is not substantial evidence’ [citation].” (People v. Brooks (2017) 3 Cal.5th 1, 120.) “[B]ecause ‘we must begin with the presumption that the evidence … was sufficient,’ it is defendant, as the appellant, who ‘bears the burden of convincing us otherwise.’” (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1430.) Reversal on a substantial evidence ground “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conclusion of the trier of fact].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
D. Banks and Clark factors The reckless indifference requirement was first articulated in Tison v. Arizona (1987) 481 U.S. 137 (Tison) and Enmund v. Florida (1982) 458 U.S. 782 (Enmund) in relation to the imposition of the death penalty. In Banks and Clark, the California Supreme Court “endeavored to elucidate the contours of the major participant and reckless indifference standards.” (Emanuel, supra, 17 Cal.5th at p. 882.) The court clarified the definitions of major participant and reckless indifference to
human life and suggested relevant considerations for the trier of fact in making that determination. The court made clear, “[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient” (Banks, supra, 61 Cal.4th at p. 803); what matters is the totality of the circumstances (In re Scoggins, supra, 9 Cal.5th at p. 677 (Scoggins)).
The factors used to determine whether the defendant was a major participant include the following: (1) the role played by the defendant in planning the underlying crime; (2) the role the defendant had in supplying or using a lethal weapon; (3) the awareness of the defendant of the particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants; (4) the defendant’s presence at the scene of the killing; and (5) the defendant’s action after lethal force was used. (Clark, supra, 63 Cal.4th at p. 611; Banks, supra, 61 Cal.4th at p. 803; see Scoggins, supra, 9 Cal.5th at p. 677.)
With regard to reckless indifference to human life, Banks explained it as that situation where a defendant is engaging in a felony known to carry a grave risk of death while “‘“subjectively aware that his or her participation in the felony involved a grave risk of death.”’” (Banks, supra, 61 Cal.4th at pp. 801, 807.) Thus, “felony murderers … who simply had awareness their confederates were armed and armed robberies carried a risk of death, lack the requisite reckless indifference to human life” (id. at p. 809) because “only knowingly creating a ‘grave risk of death’ satisfies the constitutional minimum” (id. at p. 808) articulated by the United States Supreme Court in Tison, supra, 481 U.S. at page 158 and Enmund, supra, 458 U.S. at page 798.
In Scoggins, our Supreme Court reiterated “‘[t]he defendant must be aware of and willingly involved in the violent
manner in which the particular offense is committed,’ and he or she must consciously disregard ‘the significant risk of death his or her actions create.’” (Scoggins, supra, 9 Cal.5th at p. 677.) The court gleaned factors from Banks and Clark to guide our determination of whether the defendant was subjectively aware that his participation involved a grave risk of death. As relevant here, factors to consider in determining whether the defendant was subjectively aware that his participation in the underlying felony involved a grave risk of death are (1) the defendant’s awareness that a gun would be used during the offense; (2) the number of weapons ultimately used; (3) the defendant’s physical presence at the crime; (4) the opportunity, if any, to restrain the crime or aid the victim; (5) the duration of the interaction between the perpetrators and the victims; (6) the defendant’s knowledge of his confederate’s propensity for violence; and (7) any efforts the defendant made to minimize the risks of violence during the offense. (Scoggins, supra, 9 Cal.5th at p. 677, citing Clark, supra, 63 Cal.4th at pp. 618–623.)
E. Major participant In considering the totality of the evidence viewed in the light most favorable to the prosecution, we find substantial evidence supports the trial court’s finding that defendant was a major participant. To the extent defendant’s hearing testimony conflicts with other witness accounts and defendant’s own admissions to police, we defer to the court’s resolution of credibility issues. (People v. Clements, supra, 75 Cal.App.5th at p. 298.)
Preliminarily, while we have separated the two elements for purposes of clarity, “we consider the interrelationship between the two elements, being a major participant, and having reckless
indifference to human life. Tison stated: ‘These requirements significantly overlap both in this case and in general, for the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life.’” (Clark, supra, 63 Cal.4th at pp. 614–615.)
1. Defendant’s role in planning First, we accept defendant’s admission that he “set in motion the chain of events that led to the fatal stabbing” as well as his concession that he “organized the second trip to Modica’s home and that he brought Cooper and S[c]huck with him to take Modica’s motorcycle … or to ‘tax’” him. We add, defendant expressed anger with Modica regarding the Maxwell incident and, what he viewed as, Modica’s “snitch[ing]” and his belief Modica owed him. Before defendant recruited Cooper and Schuck to go to Modica’s house, he asked Pender to give him a ride to “tax” Modica, but Pender got a “bad vibe.” Defendant orchestrated the earlier “inventory check” of Modica’s home with Pickett, and defendant became “hysterical” afterward, telling Poloai he had to go “get this bike” or “Harley.”
Upon arrival at Modica’s home for the second visit, defendant directed Cravey to circle the block because another individual was present, apparently wanting to ensure Modica would be alone. He told Cooper to wait in the car and come into the house after a few minutes. When the offense was complete, he instructed Cravey to go to Fletcher’s house where he would hide the motorcycle until he found a buyer. Later, Pickett confirmed defendant had a larger plan in mind when he told Rastorfer that defendant and Schuck went back “to finish what [defendant] and [Pickett] had started.” Thus, the evidence
substantially supports a finding defendant orchestrated the offense from planning to completion.
2. Defendant’s role in supplying or using a lethal weapon
Second, while there is no evidence he supplied the knife used to kill Modica, defendant was armed, and the evidence supports finding he used his loaded firearm during the attack. Defendant testified he only used the gun to urge Schuck to stop his attack, and the unspent bullet flew out of the chamber in the living room when he did so. This claim is belied by the record. The bullet was not found in the living room; it was found on the floor in the corner of a bedroom—a place he claims he did not go—and the bullet was found with blood on it. Moreover, “a nylon pistol/gun holster” was found in the kitchen and the “female portion of a snap or a clasp” was found in the living room; suggesting a struggle over the firearm took place. This factor does not weigh in defendant’s favor. (See In re McDowell (2020) 55 Cal.App.5th 999, 1011 [defendant was a major participant where, despite not supplying the murder weapon, he “was himself armed with, and brandished, a deadly or dangerous weapon”].)
3. Defendant’s awareness of the particular dangers posed
Third, the evidence supports a finding defendant was aware of the particular dangers posed by this robbery. Defendant planned to rob a known drug dealer in his own home—an inherently dangerous enterprise. Thus, “[t]he potential for it to turn violent was obvious.” (In re McDowell, supra, 55 Cal.App.5th at p. 1011.) Defendant knew Modica was violent, kept “a sawed-off single shot shotgun” under the couch, and may have “an AK-47 assault rifle.” Defendant waited until Modica
was alone and took a loaded firearm, along with Schuck and Cooper, to confront Modica. These actions demonstrate defendant was prepared to ambush Modica with whatever force was needed to accomplish his objective. (Ibid. [the defendant’s decision to arm himself … should be viewed in combination with the particularly risky crime that he planned and led—a home invasion robbery of a [drug] dealer”].)
Furthermore, Modica knew defendant and Cooper. If robbed and left alive, Modica would easily identify his attackers. This created a powerful motive to eliminate the victim as a witness. As the court in People v. Grandberry (2025) 116 Cal.App.5th 934, 950–951, observed, the fact that a victim “mentioned an acquaintance they had in common” with defendant created heightened risk and motive to eliminate witnesses. Here, the connection was even more direct than a common acquaintance; defendant and Modica knew each other personally. This factor does not weigh in defendant’s favor.
4. Defendant’s presence at the scene Fourth, defendant’s presence at the scene also does not weigh in his favor. Unlike the defendant in Banks, who was not at the scene of the robbery when the murder took place and apparently knew nothing of what had happened until his cohort returned to the car (Banks, supra, 61 Cal.4th at p. 805), defendant was present throughout this entire criminal enterprise. (See also Scoggins, supra, 9 Cal.5th at p. 678 [“Scoggins was not physically present at the crime scene”]; Clark, supra, 63 Cal.4th at p. 619 [Clark was waiting in the parking lot when victim was killed].) We discuss this factor further, post, with regard to whether defendant acted with reckless indifference.
5. Defendant’s actions after lethal force was used Fifth, defendant’s actions after the attack do not aid his position. As discussed more fully post, after lethal force was used on Modica, defendant stole the motorcycle as planned. He hid the motorcycle until a buyer was found, and defendant would not wash the victim’s blood from his face or hands, appearing proud of its presence. Finally, defendant remained in close contact with Schuck “for a considerable time after the murder” and continued to commit crimes with him in the days following the murder. This ongoing association with Schuck undercuts defendant’s claim that Schuck’s violence was unexpected and frightening to him.
F. Reckless indifference to human life 1. Defendant’s awareness weapons would be used and the number of weapons ultimately used As noted, there is no direct evidence defendant knew Schuck had a knife or he knew Modica would be stabbed. However, substantial evidence supports finding (1) defendant waited until Modica was alone to begin the encounter; (2) defendant expected Modica may be armed with a sawed-off shotgun or an AK-47 assault rifle; (3) defendant was armed with a loaded firearm; (4) defendant used the firearm to aid the attack and a reasonable inference supports finding a struggle took place over the weapon resulting in the torn firearm holster; and (5) defendant brought two violent men to aid him during the robbery of the known drug dealer.
Moreover, the evidence established at least part of the attack took place in the driveway/garage area where a “commotion” was heard and police found blood along with two potential murder weapons (a pair of scissors and a box cutter).
This, along with blood found on defendant, on the live bullet found in the bedroom, and on the motorcycle, lends itself to an inference that defendant was not only armed with the firearm, but also was present when blood was being spilled. Finally, defendant’s flippant text message to Cravey about her slashed tires stating, “I didn’t have the knife. I had a gun,” appears, at a minimum, to reflect defendant’s acknowledgement of the distinct weapons each man carried during the offense—Schuck the knife and defendant the gun—suggesting familiarity with Schuck’s weapon of choice rather than surprise. This factor does not favor defendant.
2. Defendant’s presence at the scene and opportunity to restrain the violence or aid Modica
Defendant contends his “ability to facilitate or prevent”
(capitalization & boldface omitted) the murder weighs in his favor or is “at most” neutral. We disagree. A “‘defendant’s presence allows him to observe his cohorts so that it is fair to conclude that he shared in their actions and mental state.… [Moreover,] the defendant’s presence gives him an opportunity to act as a restraining influence on murderous cohorts. If the defendant fails to act as a restraining influence, then the defendant is arguably more at fault for the resulting murders.’” (Clark, supra, 63 Cal.4th at p. 619.)
Defendant points to Clark, supra, 63 Cal.4th at page 612 and compares his role to the “mastermind who planned and organized the attempted robbery and who was orchestrating the events at the scene of the crime” but was found to not have acted with reckless indifference. Defendant’s reliance on Clark is misplaced.
In Clark, the defendant orchestrated a burglary of a computer store at closing time and was not in the store at the time of the shooting. Instead, Clark “was waiting across the parking lot for [his cohort] to secure the store” so Clark could begin “the second phase of the robbery….” (Clark, supra, 63 Cal.4th at pp. 619, 613.) While Clark waited, his cohort was surprised by the unexpected arrival of the victim and shot and killed her. (Id. at p. 613.) The court found Clark’s absence from the scene of the computer store left him with no “opportunity to observe [his cohort’s] response to [the victim’s] unanticipated appearance or to intervene to prevent her killing.” (Id. at p. 619.)
Here, unlike Clark, defendant was not simply waiting nearby but was physically present and an active participant throughout. Ensuring he was alone, defendant asked Modica, a drug dealer he describes as “very violent,” for money in his own home and began wrestling with him once Modica became “frustrated” over the request. While the two men were grappling, Schuck attacked.
Even if defendant’s account to police is credited, defendant did not intervene in Schuck’s attack because it was “too violent” and he chose “not to look” as he fled out the back on Modica’s motorcycle. He did not call 911. He did not ask Cooper to call for help. He did not holler or alert the neighbors. He did not tell Cravey that Modica was injured. Modica was clinging to life when his neighbors found him and, according to the medical examiner, could have survived for several minutes and up to an hour, meaning any attempt to render aid by defendant could have helped save Modica.
Defendant acknowledges he “fled rather than stay and help Mr. Modica,” however, he argues this “is not enough to show
reckless indifference to human life.” Relying on Emanuel, supra, 17 Cal.5th at page 891, defendant contends the question “is not whether the non-killer did enough to try to stop the killing, but whether the non-killer ‘acted with the requisite mens rea, i.e., reckless indifference to human life.’” Therefore, he asserts by fleeing he did not “knowingly create[] a grave risk of death.” We disagree.
In Emanuel, our Supreme Court found because the defendant “attempted to act as a restraining influence” when he said, “‘let’s go’” and began to walk away before the shooting, he demonstrated an unwillingness to engage in further violence. (Emanuel, supra, 17 Cal.5th at p. 891.) Here, other than defendant’s self-serving statements—he saw no blood, tried to get in between the two men, used his firearm to stop Schuck, and only fled on the motorcycle out of fear—there is no evidence defendant attempted to restrain the violence or fled because of unanticipated violence.
Instead, the physical evidence—a bloody bullet in the bedroom, a torn holster in the kitchen and living room, blood on defendant’s hands and face, blood trails throughout the house, and blood in the driveway and garage, including on the motorcycle—is more consistent with defendant’s active armed participation in the violent, room-to-room assault. It was only after the attack and once Modica’s head “[w]as not all the way attached,”12 that defendant, with Schuck’s help, left through the back gate on the motorcycle.
12 This reference comes from Cravey’s testimony at the preliminary hearing. The preliminary hearing transcript was part of the record before the trial court as admitted in the original clerk’s transcript. As noted, post, defendant also uses
Defendant contends Modica was “alive and ambulatory, able to run, albeit apparently injured, when [he] left,” and “in an apparent deviation” from their plan to take the motorcycle, Schuck ran back inside and, therefore, defendant had no reason to anticipate further violence. In making this argument, defendant refers to Cravey’s preliminary hearing testimony that, as Schuck was opening the gate for defendant, the two men saw Modica “ran out of the house and his head was hanging” because it “[w]as not all the way attached” and asserts, when defendant left on the motorcycle, “Schuck went back inside” and finished the attack on Modica. Not so.
There is no evidence to suggest any further violence took place once defendant drove off on the motorcycle. Instead, the evidence suggests the attack was complete when Schuck helped defendant make his escape on the motorcycle, and Schuck left the house at the same time. Cravey testified Schuck opened the gate for defendant, both men looked back toward the house (apparently seeing Modica), Schuck “went back into the backyard, and then came back out again.” This all took place in a matter of “seconds,” and she saw “both of them come out.” When defendant drove by on the motorcycle, Cravey “took off” without Schuck. Schuck was running down the street after them. Cravey stopped at the corner to allow him to get in the car. Cooper testified Schuck ran out the front door, “jumped in the car,” the motorcycle started, defendant drove away, and they followed. Both versions suggest, if Schuck went back into the house, he was not in there for any significant amount of time or able to
this testimony in his opening brief to argue Modica was still “alive and ambulatory” when he left.
continue any further attack. Accordingly, there is substantial evidence to support finding defendant was present from the start of the attack through its completion.
Finally, defendant argues “‘the presence of other persons nearby [the neighbors] ma[de] it more likely that [the victim] would receive aid without’ [his] intervention.” Defendant’s comparison to the circumstances in Emanuel is not well-taken. In Emanuel, supra, 17 Cal.5th at page 894, “The shooting occurred in the afternoon in a residential area adjacent to a public park. The sound of the gun firing was followed immediately by screeching tires and the collision of [the victim’s] truck with a tree. The evidence shows that numerous witnesses were nearby and heard the commotion, and at least two of them called 911.” Here, the offense took place by stabbing the victim inside his home; not by shooting outside next to a park. Neighbors were only alerted to this offense because Cooper and Cravey drew their attention by honking the horn, an act not likely to have been part of defendant’s plan.13 In short, defendant made no attempt to restrain the violence and remained an active participant from planning through execution, escape, and beyond. This factor militates in favor of finding defendant was a major participant who acted with reckless indifference. (See In re McDowell, supra, 55 Cal.App.5th at p. 1014 [the defendant “was present when the
13 To be sure, the shooting in Emanuel was unplanned, however, in that case, when things started to go poorly Emanuel urged his cohort to leave and began to walk away before the shooting, demonstrating an unwillingness to engage in further violence. (Emanuel, supra, 17 Cal.5th at p. 891.) Defendant here did not engage in similar conduct.
violence ensued but took no steps to prevent it” by saying or doing anything to “deescalate the situation”].)
3. The duration of the interaction Defendant argues the attack on Modica was “relatively quick[],” as a factor that weighs in his favor. Specifically, he points to the approximately 10-minute attack on Modica and compares it to the estimated nine-to-14-minute attack in Emanuel. The Emanuel court stated, “We do not suggest that a rapidly unfolding crime may never allow for a finding of reckless indifference to human life. But where a crime unfolds quickly, this factor—the failure to restrain a cohort—cannot be said to weigh in favor of a finding of reckless indifference without some evidence in the record indicating that the defendant had a meaningful opportunity to do so.” (Emanuel, supra, 17 Cal.5th at p. 892, italics added.)
Once again, defendant’s reliance on Emanuel is misplaced.
In Emanuel, the defendant and his cohort were planning to rob a marijuana dealer of his drugs. When it became clear the victim refused to give over the drugs, Emanuel began to walk away and told his cohort, “‘let’s go, but he wouldn’t come on’” and instead his cohort shot the victim. (Emanuel, supra, 17 Cal.5th at pp. 878–879.)
Here, defendant and Schuck did not plan to rob a relative stranger in public and have things quickly escalate out of control. Nor was Modica the victim of a quick unexpected shooting where there was no time to intervene. Instead, he was the subject of a brutal attack that left blood throughout the house and into the backyard and garage. He sustained two major stab wounds and many defensive wounds on his arms and legs, as well as scratches and abrasions across his face, arms and chest,
suggesting he was fighting to survive. Finally, the bedroom was ransacked, and the door frame was damaged with blood and human hair in it. That defendant and Schuck made “relatively quick[]” work of killing Modica, taking his wallet, his motorcycle, and perhaps drugs (as no “evidence of drugs” was found at Modica’s home), does not render defendant’s actions less predictably dangerous. Armed with a gun, defendant had a meaningful opportunity to restrain the violence that took place. Therefore, the “quick” nature of this offense does not weigh in defendant’s favor.
4. Defendant knew of his cohorts’ propensity for violence
Defendant knew of Schuck’s and Cooper’s propensity for violence; in fact, that quality is why they were asked to be present for the robbery. Defendant argues, there was “no evidence [he] knew of Schuck’s murderous tendencies” and posits “the fact [he] brought two men with him suggests that if any violence were contemplated, it was to be, at most, an unarmed beating, if necessary to deter any violent resistance.” We disagree. As discussed, defendant knew the situation he was creating by bringing Schuck and Cooper to Modica’s home that day. His plan—to rob or confront an armed “violent” drug dealer about money and “snitching”—was without question a dangerous operation. As discussed, defendant knew Schuck was a “very violent person,” and Cooper was good as “backup.” Moreover, as noted, defendant’s postoffense willingness to continue associating and committing crimes with Schuck leads to a reasonable inference that defendant was not surprised by Schuck’s capacity for violence. Defendant’s claim is not credible.
5. Defendant’s effort to minimize the risk of violence
Defendant asserts he “brought two men with him … to quell the likelihood of violence” and “there was nothing in [defendant’s] plan that ‘elevated the risk to human life beyond those risks inherent in any armed robbery.’” However, as discussed, substantial evidence supports finding Schuck and Cooper were brought because defendant anticipated violence and the need for “backup,” not to “quell” any violence. Defendant knew Schuck to be “very violent,” and he also knew Modica to be armed and “very violent.”
Aside from his self-serving statements, there is no evidence defendant made any efforts to minimize the risk of violence during the attack on Modica. He told police he did not help Modica during the attack because it was “too violent” and he “didn’t want to be the one catching the blade” and he only fled on the motorcycle out of fear. However we note Schuck helped defendant leave by opening the gate for him, riding the same motorcycle many witnesses heard defendant say he was going to steal and later sold for a fraction of its value. Defendant testified at the hearing he pulled his firearm in the living room in an attempt to stop Schuck’s attack, but the evidence points to a struggle over the weapon in the living room and kitchen, and the bloody bullet in the bedroom suggests the firearm was in use well beyond the living room where defendant claims it was drawn. Substantial evidence does not support finding defendant made any effort to minimize the risk of violence during the offense he planned.
In sum, when viewing the totality of the circumstances, we find substantial evidence supports the trial court’s finding,
beyond a reasonable doubt, defendant was a major participant in the underlying offenses who acted with reckless indifference to human life. Defendant was not a peripheral participant who was caught off guard by unexpected violence, and he did nothing to restrain the attack he initiated. He was an integral part of the criminal enterprise from planning, execution, and beyond. Accordingly, under the standards articulated in Banks and Clark, as well as Scoggins, defendant is ineligible for resentencing pursuant to section 1172.6. II. Defendant’s contentions regarding the court’s alleged unsupported factual findings fail Defendant contends five of the trial court’s “keystone factual findings are unsupported” and, as such, the court abused its discretion. (Capitalization & boldface omitted.) Specifically, he asserts the court erred in (1) characterizing the bullet being discharged from the gun as simultaneous with Schuck’s “stabbing motion” suggesting coordinated action; (2) stating that defendant “testified he was demanding money” from Modica rather than simply asking for money; (3) finding defendant testified that he pushed Modica to the ground before Schuck stabbed him, also suggesting coordinated action; (4) stating defendant was “covered with the victim’s blood”; and (5) stating Schuck took Modica’s motorcycle.
We need not dwell on these contentions. As respondent correctly observes, section 1172.6 requires the trial court to “determine whether the [defendant] is entitled to relief” by deciding whether the People have proved beyond a reasonable doubt that defendant is guilty of murder under the law as amended. (§ 1772.6, subd. (d)(3).) It does not require the court to make secondary factual findings on particular aspects of the
evidence or provide an error-free summary of the record. On appeal, we review the trial court’s ultimate judgment for substantial evidence. (See People v. Tessman (2014) 223 Cal.App.4th 1293, 1302; People v. Towner (1968) 259 Cal.App.2d 682, 685 [“The inquiry on appeal is whether, in fact, the decision of the trial court was correct, not the reasons he may have stated for making it.”].) The narrow exception recognized in Tessman— where the court’s comments “unambiguously disclose” that its basic ruling embodied a misunderstanding of the relevant law (Tessman, at p. 1303)—is not applicable here. Defendant’s complaints concern alleged misstatements of the evidence and reflect no misunderstanding of the legal standards governing the section 1172.6 hearing or the findings required to find defendant was a major participant who acted with reckless indifference to human life.
Moreover, the claimed errors are largely immaterial. First, as to the motorcycle, the court was mistaken. It was defendant, not Schuck, who took Modica’s motorcycle. But correcting this error only strengthens the case against defendant, as it establishes he took what he went to Modica’s to get and then personally profited when he sold it later that evening. Second, regarding the blood, while witnesses described “specks” of blood on defendant’s face and hands rather than being “covered” in blood, the difference is one of degree, not substance. Multiple witnesses, including Cravey, Cooper, and defendant himself in his police interview, confirmed defendant had the victim’s blood on him. This helped establish defendant was in close physical proximity during the violent attack of Modica.
Third, defendant’s issue with the court’s finding that he “testified he was demanding money from the victim and pushed
the victim to the ground” before the stabbing is splitting hairs. Defendant points out he pushed Modica to the couch, not the ground, noting they were not outside, and he discussed the money Modica owed him, rather than “demand[ing] money, as might occur in a robbery.” Moreover, the court found defendant’s testimony incredible and the evidence at trial, which established defendant intended to “tax” Modica, supports finding defendant demanded money.
Fourth, and last, even if “the court’s contemporaneous firearm-action finding fails,” there is ample evidence to support the required finding that defendant coordinated and facilitated Modica’s death. He conducted an “inventory check” of Modica’s home earlier in the day; planned the robbery; recruited and brought with him the “very violent” and “all around tough” participants; brought a loaded firearm to “tax” a known drug dealer and take his motorcycle; physically confronted Modica and pushed him down and wrestled with him; and was present for the bloody, violent room-to-room attack. Despite mischaracterizing the exact timing of when defendant drew his gun, it does not change defendant’s status as a major participant who acted with reckless disregard for human life. III. Defendant’s claim of ineffective assistance of counsel fails Defendant contends hearing counsel was ineffective for failing to (1) seek reconsideration of the court’s alleged factual errors and (2) argue more aggressively that defendant was not a major participant who acted with reckless indifference to human life. We disagree.
“[A] defendant has a constitutional right to effective assistance of counsel at an evidentiary hearing under section
1172.6 ….” (People v. Grajeda (2025) 111 Cal.App.5th 829, 838.) Under a Sixth Amendment claim of ineffective assistance of counsel, a defendant must show that counsel’s performance fell below a standard of reasonable competence and that prejudice resulted. (Strickland v. Washington (1984) 466 U.S. 668, 687– 688 (Strickland); People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson).) Prejudice is shown where there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, at p. 694; see Anderson, supra, at p. 569.)
Even if we found counsel to have been ineffective, we find no prejudice. Based on the foregoing analysis and our finding that substantial evidence supports the court’s finding defendant was a major participant who acted with reckless indifference to human life, defendant has failed to establish that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694; see Anderson, supra, 25 Cal.4th at p. 569.)
DISPOSITION
The order is affirmed.
CHAVEZ, J.
We concur:
LUI, P. J. RICHARDSON, J.
People v. Bergman CA2/2 (People v. Bergman CA2/2) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.