Filed 12/4/25 P. v. Owens CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083675
v. (Super.Ct.No. INF039223)
DAMIEN OWENS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Jazmyne D. Alverson, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Kathryn
Kirschbaum and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and
Respondent.
1 Defendant and appellant Damien Owens appeals the superior court’s denial of his
petition for resentencing under Penal Code1 former section 1170.95, now renumbered as
section 1172.6. (Stats. 2022, ch. 58, § 10.) Following an evidentiary hearing, the court
concluded defendant could be convicted of first degree murder under current law because
he was a major participant in the robbery who acted with reckless indifference to human
life. (See §§ 189, subds. (a) & (e)(3), 1172.6, subd. (a)(3).) Defendant contends the
court erred by not distinguishing between the “major participation” factors of People v.
Banks (2015) 61 Cal.4th 788 (Banks) and refusing to consider the “reckless disregard”
factors of People v. Clark (2016) 63 Cal.4th 522 (Clark). We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND2
A. The Shooting
About 2:00 a.m. on December 19, 2001, Officer Denney of the Desert Hot Springs
Police Department saw a midsize, four-door white car with its parking lights on parked in
front of an apartment complex at Second and Mesquite. In the car were a female driver,
Shalamar Wiley, and a male passenger, codefendant Rayshawn Lamarr Session. Denney
told them it would be a good idea to leave, because they were parked in front of a known
“crack house.” (Owens, supra, E033148.)
1 Further unspecified statutory references are to the Penal Code.
2 On our own motion, we take judicial notice of the nonpublished opinion in People v. Owens et al. (Apr. 12, 2005, E033148) (Owens), from defendant’s appeal from the judgment. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).) We repeat our prior opinion’s factual and procedural background.
2 Russell Wilson (the victim) lived in a one-bedroom, one-bathroom apartment in
the complex at Second and Mesquite with his girlfriend Faye Ransom, her mother
Catherine Daniels, Ransom’s niece Sophia Lindsey, and Ransom’s friend Angela Rippy.
Sophia Lindsey’s mother, Mary Lindsey, was also at the apartment on the morning of
December 19, 2001. (Owens, supra, E033148.)
Sometime after midnight that morning, defendant came to the apartment with
codefendant Clayton Walton. Ransom was in the bedroom watching television while the
victim was sleeping in the bed. Ransom and her mother had known defendant for several
years and considered him a friend. While defendant and Walton were visiting in the
living room, there was a knock at the front door of the apartment. Sophia Lindsey
answered the door and told defendant, “Your friend wants you.” Defendant went out
briefly and returned; Walton stayed inside. Later, there was another knock, and Sophia
Lindsey told defendant his friend wanted him again. Defendant went out for a little
longer than the first time and returned. Walton stayed in the apartment while defendant
was gone. (Owens, supra, E033148.)
Defendant went into the kitchen and got a plastic trash bag. Either defendant or
Walton asked if Walton could use the bathroom. Ransom agreed. The bathroom was
accessible only through the bedroom, so Walton went through the bedroom, where the
victim and Ransom were, and into the bathroom. However, he was only there for a short
time and did not flush the toilet. He returned to the living room and conversed with
defendant. (Owens, supra, E033148.)
3 Rippy was in the kitchen smoking “crack.” She heard the dogs barking at the front
door. As she opened the door to let them in, two men walked in and went toward the
bedroom. When Ransom heard the front door of the apartment open, she told Sophia
Lindsey to lock the door and not open it anymore. Then she got up and locked the door
herself. As she started back to the bedroom, she saw Session standing by the bedroom
door and Walton sitting on the loveseat. Ransom had not seen Session before. (Owens,
supra, E033148.)
Ransom went into the bedroom and tried to close the door, but Session came in,
grabbed her by the back of her head, and stuck a handgun to her head. He said, “Bitch,
shut up, don’t say nothing. [G]ive me the money, and give me the dope.” He shoved her
down on the bed, and she told him that she did not have any money and there was no
dope there. He again said, “Bitch, give me the money or the dope or I’ll blow your
fucking head off.” He jammed the gun in her head again and tried to throw a sheet over
her face; however, she was still able to see what was going on. Walton was in the
bedroom while these events were occurring. Ransom could feel the victim, who was still
in the bed, try to turn over. When this happened, Session said, “Fuck that, son of a bitch,
fuck you,” and shot the victim in the chest. (Owens, supra, E033148.)
Defendant at that time was in the living room with Rippy, Daniels, Mary, and
Sophia Lindsey. Either before or after the shot, defendant told the others not to “trip” and
that he and his companions were just there to collect a debt that had been owed for a long
4 time. Wearing gloves, defendant unrolled a plastic trash bag and started undoing the
DVD player from the television. He put the player in the bag. (Owens, supra, E033148.)
After shooting the victim, Session said to Walton, “Man, look, that mother
fucker’s got on gold, take those fuckin’ rings off his hands, get those rings.” Walton took
four rings off the victim’s fingers and went over to the PlayStation and yanked the wires
off. He said, “[T]hat mother fucker, fuck this, I’m taking this shit,” and he took the
PlayStation. Both codefendants left the room. (Owens, supra, E033148.)
Rippy and Sophia Lindsey were in the living room when the codefendants came
out of the bedroom. Session stuck the gun in Lindsey’s face and told her and Rippy to
get down on the floor. After getting down, Rippy looked up, and Session swung around,
pointed the gun at her, and said, “Bitch, I’ll blow you away,” and “I said get your head
down, bitch, before I blow your mother fucking brains out.” Defendant, Session, and
Walton left the apartment together. Ransom went outside and saw a little white car with
defendant and two or three other people driving away. The victim died of a gunshot
wound to the chest. (Owens, supra, E033148.)
B. The Extrajudicial Statements
Following their arrests, defendant, Walton, and Session voluntarily spoke to
district attorney investigators about the facts of the crimes. Investigator McDonagh
testified about the contents of the statements, and a recording of Session’s statement was
played for the jury. (Owens, supra, E033148.)
5 1. Defendant
Defendant was interviewed in the evening on December 19, 2001, and shortly
after midnight the following morning. He stated he had gone to the victim’s home the
morning of December 19 to make some money. The idea was to rob the victim, because
he would not report the crime to the police. Defendant admitted he took the DVD player.
He also admitted telling Sophia Lindsey outside the apartment that the victim was going
to get “jacked.” None of defendant’s statements were played before the jury, and he did
not take the stand. (Owens, supra, E033148.)
2. Session
Session stated that hours before the shooting, he was at the home of his friend
Wiley. At some point, he and Wiley drove to Walton’s house in Wiley’s car, which was
white. When they arrived, Walton and defendant were standing outside. Session had
known the two for several years. Defendant was trying to sell drugs but was not having
very good luck. Defendant said they needed to make some money, and he knew of an
opportunity to get about $500 cash and a couple of ounces of dope from a man who owed
him some money. He said they could do it that night, but they did not have a ride.
Session said Wiley could give them a ride. Walton was listening and said it sounded like
a good idea. (Owens, supra, E033148.)
Later that day, Session asked Wiley to give him, defendant, and Walton a ride to
Desert Hot Springs so they could do some business. She agreed. Session told the others
6 not to say anything around Wiley about what they were going to do, or she would not
give them a ride. (Owens, supra, E033148.)
Having been at the victim’s apartment before, defendant told his codefendants who
would be there. He said that he and Walton would go in first to see who had the money
and how much there was. He also said he would bring a gun, put it under the car seat,
and Session should carry it because he (defendant) could not carry the gun when he went
into the apartment. (Owens, supra, E033148.) Upon arriving at the apartment complex,
defendant and Walton got out of the car while Session and Wiley waited. (Owens, supra,
E033148.)
After an hour or two, Session got tired of waiting. He went to the apartment and
knocked. Defendant answered the door, along with a lady Session did not know.
Defendant said he would come outside and talk to Session in a few minutes. (Owens,
Later, defendant came out and said, “Lets [sic] go up in here and get my money.”
Session said, “[A]ll right lets [sic] go.” He grabbed the gun and entered the apartment
with defendant. Walton was sitting on the couch. Defendant told Session to go into the
bedroom while he (defendant) stayed in the living room to make sure the girls did not go
anywhere. (Owens, supra, E033148.)
Session went into the bedroom and saw the lady (who had come to the door
earlier) watching television. He had the gun at his side and said to her, “Where’s you’re
[sic] all money and dope bag.” The lady said, “. . . I don’t have it. He has everything.”
7 She got off the bed, and Session pushed her out of the way so he could get to the victim’s
side of the bed. Walton walked into the room. The victim was still sleeping. Walton told
Session to wake him up. Session nudged the victim, and he woke up and saw the gun.
His reaction caused Session to put up his hand, and the gun went off. Session said,
“[L]ets [sic] just leave” and walked out of the apartment. (Owens, supra, E033148.)
Session got in the car with Wiley, and a few seconds later, defendant and Walton
jumped in with “all the stuff” in their hands. Session told Wiley to drive away. He said,
“. . . I think I shot him, I think I killed him.” He told Wiley to park near a house so he
could dispose of the gun; he left it in a flowerpot. Wiley dropped Session off at his
girlfriend’s sister’s house. (Owens, supra, E033148.)
Session stated he and the others only went to the apartment to rob the victim.
Asked why, in that case, he took the gun with him, he explained, “Well, what do you rob
somebody with . . . .” After making his recorded statement, he led the investigators to the
gun. (Owens, supra, E033148.)
3. Walton
Walton was interviewed in January 2002, in the presence of his attorney and a
defense investigator. He said he had gone to the apartment complex on December 19,
2001, and was in the car when the police officer contacted Wiley and Session in front of
the complex, but he bent down and was out of the view of the officer. After the officer
left, he went inside the apartment to use the bathroom located in the bedroom. He left the
apartment and went back outside to the front of the complex. He denied removing any
8 property from the apartment and denied being in the apartment when the victim was shot.
(Owens, supra, E033148.)
C. Session’s Trial Testimony
At trial, Session testified he went to the apartment complex on December 19,
2001, with Wiley, defendant, and Walton to sell some drugs. Wiley did not want to go
inside, so he stayed with her in the car. Session, Walton, and defendant were supposed to
take turns sitting in the car with her. Defendant brought a gun along and put it behind the
car seat. (Owens, supra, E033148.)
After an hour and a half, defendant and Walton had not returned, so Session went
to the door of the apartment and asked them whether they wanted to switch places. They
declined, so Session went back to the car. He went to the apartment door a second time
but returned to the car. The third time he went to the apartment door, he went inside, sat
down, and talked to defendant. Walton was sitting and smoking a cigarette. Session had
never seen any of the other people in the apartment before. (Owens, supra, E033148.)
After a while, Session heard an argument going on in the bedroom. He looked in
the bedroom and saw Ransom standing inside arguing with a man Session did not
recognize. The victim was lying in the bed. The man who had been arguing with
Ransom came out of the room and asked if anyone had a gun. Session had brought the
gun from the car for protection, because the apartment was a dope house. The man asked
to use the gun, so Session gave it to him. The man put it in his waistband and walked
back into the bedroom. He told Ransom that since they did not have his money, he was
9 going to take the DVD player and PlayStation as collateral. He told Sophia Lindsey to
get him a bag to put the stuff in. Ransom woke the victim up to tell him the man was
taking the stuff. The victim and the man started arguing. The man tried to hit the victim
with the gun, but the victim moved out of the way, and the gun bounced off the bed and
went off. (Owens, supra, E033148.)
Session asked the man why he shot the victim. The man said it was an accident.
Session took the gun back and started walking out the door. The man unhooked the
PlayStation and went out of the bedroom. Session suggested he and defendant leave.
Defendant took the DVD player, and defendant, Session and Walton left the apartment.
The man who had shot the victim left right after that. Session thought the name of the
man who shot the victim was Bam, but he was not sure. (Owens, supra, E033148.)
Session disposed of the gun because he was afraid of getting pulled over and
caught with it when it had been used to kill the victim. He further testified that his
extrajudicial statement to the police was not truthful. He made the statement because the
investigator said they knew he did it, and if he confessed and said the killing was an
accident, he would get voluntary manslaughter. Before Session made the statement, the
investigator went over the whole case with him. Based on what the investigator told him,
he made the statement. (Owens, supra, E033148.)
According to Session, when he and the others went to the apartment complex on
December 19, 2001, Walton did not know what the plan was. On May 6, 2002, Session
sent a letter to Walton’s mother stating Walton had nothing to do with what happened.
10 The letter also stated that when Session gave the gun to the man who shot the victim, he
did not know the man was going to shoot, because all the man said was that he was going
to scare the victim because he owed the man money. On June 28, 2002, Session wrote to
Walton’s attorney, stating that although Walton was inside the apartment at one point, he
was not there when the crime took place and did not have any knowledge of what
happened in the apartment. (Owens, supra, E033148.)
After Session testified, Investigator McDonagh testified he did not offer or give
Session anything in return for his extrajudicial statement. According to McDonagh, the
question whether he could assist Session in any way never came up. (Owens, supra,
D. The Verdict and Sentence
On September 11, 2002, the jury convicted defendant of first degree murder with
robbery and burglary felony-murder special circumstances (§§ 187, 190.2, subd. (a)(1) &
(17)(G)), first degree residential robbery (§§ 211, 212.5), and first degree residential
burglary (§ 459), and found that a principal was armed in the commission of the offenses
(§ 12022, subd. (a)(1)). (Owens, supra, E033148.) He was sentenced to life without the
possibility of parole for the felony-murder conviction, plus one year for the arming
enhancement, six years for the robbery conviction (stayed under § 654), and one year
four months for the burglary conviction (stayed under § 654). We affirmed his
convictions. (Owens, supra, E033148.)
11 E. Petition for Resentencing
After Senate Bill No. 1437 came into effect, defendant petitioned the superior
court for resentencing under section 1172.6. Following an evidentiary hearing, the court
denied the petition, finding that defendant was a major participant and acted with reckless
indifference to human life as evidenced by the facts that he set up the robbery, provided
the gun, and was not surprised when Session used the gun to kill the victim.
II. DISCUSSION
Conceding that he was a major participant in the robbery, defendant contends the
superior court “ignored his pleas to review his state of mind pursuant to Clark, merely
referencing its overlap with Banks.” He argues there is a “clear distinction between the
factors in Banks, which analyzes [his] participation in the underlying felony, and the
factors in Clark, which analyzes [his] mens rea.” He faults the court for using Session’s
actions to implicate him in the murder without considering his “delay, his cohort running
out of patience,” his “warning to other people at the apartment,” or his “attempt to de-
escalate the risk of violence.”
A. Applicable Legal Principles
“Section 189, subdivision (e), which permits a felony-murder conviction only
when specified facts relating to the defendant’s individual culpability have been proved,
incorporates in subdivision (e)(3) the same requirements for proving the defendant acted
with reckless indifference to human life as a major participant in one of the identified
serious felonies as necessary for a felony-murder special-circumstance finding under
12 section 190.2, subdivision (d).[3] The factors properly considered in assessing such a
felony-murder special-circumstance finding were clarified in Banks, supra, 61 Cal.4th
788 and Clark, supra, 63 Cal.4th 522, [more than one decade after defendant’s]
conviction. [Citation.]” (People v. Harris (2021) 60 Cal.App.5th 939, 954.)
As relevant to the case before this court, the California Supreme Court recently
reviewed the history behind the major participant and reckless indifference concepts and
interpreted the reckless indifference standard: “In brief, the major participant and
reckless indifference concepts trace their origin to a pair of United States Supreme Court
decisions—Enmund v. Florida (1982) 458 U.S. 782 (Enmund) and Tison v. Arizona
(1987) 481 U.S. 137 (Tison)—that articulate the constitutional limits of capital
punishment for accomplices to felony murder. [Citation.] In Enmund, the high court
held that a minor participant in an armed robbery (the getaway driver), who neither
intended to kill nor had any other culpable mental state, was ineligible for the death
penalty. [Citations.] A few years later, the high court revisited the issue in Tison,
considering the case of defendants who broke two convicted murderers out of prison,
armed the escaped prisoners, captured and then held a family of passing motorists at
gunpoint while the escapees deliberated whether to kill them, and then abandoned the
3 “Enacted in 1990, section 190.2, subdivision (d), provides that ‘every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.’ [Citation.]”
13 victims in the remote desert after the escapees shot them. [Citation.] The court held that
‘major participation in the felony committed, combined with reckless indifference to
human life,’ provides a sufficient degree of culpability to be eligible for a sentence of
death. [Citation.] Section 190.2, subdivision (d), . . . was designed to codify the holding
of Tison and, by extension, the related holding of Enmund. [Citation.] Section 190.2,
subdivision (d), by its text, imposes an actus reus requirement, i.e., major participation in
the enumerated felony, and a mens rea requirement, i.e., reckless indifference to human
life. [Citation.]
“Thereafter, in our own pair of cases—Banks, supra, 61 Cal.4th 788 and Clark,
supra, 63 Cal.4th 522—this court endeavored to elucidate the contours of the major
participant and reckless indifference standards. [Citation.] ‘Because the language
derived from United States Supreme Court felony-murder precedent, we looked to that
case law for guideposts.’ [Citation.] We observed that Enmund and Tison ‘collectively
place conduct on a spectrum’ of culpability, ‘with felony-murder participants eligible for
death only when their involvement is substantial and they demonstrate a reckless
indifference to the grave risk of death created by their actions.’ [Citation.] We cautioned
that, though the conduct of the defendants in Enmund and Tison mark opposite ends of
the spectrum for ‘nonkiller felony murderers,’ Enmund’s actions do not represent ‘the
outer limit of conduct immune from death eligibility,’ any more than the Tisons’ actions
represent the ‘constitutional minimum level of culpability for death eligibility.’
[Citation.]
14 “To guide the ‘fact-intensive, individualized inquiry’ into where a defendant’s
conduct falls on the spectrum of culpability [citations], in Banks we identified a list of
considerations relevant to the major participant prong. [Citation.] Similarly, in Clark we
identified a list of considerations relevant to the reckless indifference prong. [Citations.]
In amending section 189, which governs murder liability generally, Senate Bill No. 1437
imported the actus reus and mens rea requirements from the special circumstance 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.’ [Citation.] We are
therefore guided . . . by our pronouncements in Banks and Clark, and our application of
their requirements in [In re Scoggins (2020) 9 Cal.5th 667 (Scoggins)].
“As set forth by the United States Supreme Court, ‘[r]eckless indifference to
human life is “implicit in knowingly engaging in criminal activities known to carry a
grave risk of death.”’ [Citation.] ‘Examples include “the person who tortures another not
caring whether the victim lives or dies, or the robber who shoots someone in the course
of the robbery, utterly indifferent to the fact that the desire to rob may have the
unintended consequence of killing the victim as well as taking the victim's property.”’
[Citation.] Although the high court’s examples describe actual killers, not accomplices to
felony murder, we explained they nonetheless ‘provide some indication of the high
court’s view of “reckless indifference” . . . .’ [Citation.] Namely, reckless indifference to
human life ‘encompasses a willingness to kill (or to assist another in killing) to achieve a
15 distinct aim, even if the defendant does not specifically desire that death as the outcome
of his actions.’ [Citation.]
“After extrapolating these animating principles from Tison, we went on to explain
that reckless indifference encompasses both subjective and objective elements.
[Citation.] ‘As to the subjective element, “[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.”’
[Citations.] ‘As to the objective element, “‘[t]he risk [of death] must be of such a nature
and degree that, considering the nature and purpose of the actor’s conduct and the
circumstances known to him [or her], its disregard involves a gross deviation from the
standard of conduct that a law-abiding person would observe in the actor’s situation.’”’
“‘The degree of risk to human life is crucial to the analysis.’ [Citation.] As the
United States Supreme Court has acknowledged, ‘“the possibility of bloodshed is
inherent in the commission of any violent felony,”’ such that one who perpetrates or
attempts to perpetrate such a crime may well anticipate ‘the use of lethal force as a
possibility.’ [Citation.] Were that degree of culpability sufficient, however, it would
amount to ‘“little more than a restatement”’ of the former felony-murder rule that Senate
Bill No. 1437 retired. [Citation.] ‘“Awareness of no more than the foreseeable risk of
death inherent in any [violent felony] is insufficient” to establish reckless indifference to
human life; “only knowingly creating a ‘grave risk of death’” satisfies the statutory
16 requirement.’ [Citation.] This Court has thus made clear that participation in a ‘“garden-
variety armed robbery,”’ i.e., one in which the only factor supporting a reckless
indifference finding is that a participant was armed with a gun, is insufficient without
more to establish reckless indifference. [Citations.]
“To aid in distinguishing those who knowingly engage in criminal activities
known to carry a grave risk of death from other felony perpetrators, Clark ‘set out a
nonexhaustive list of considerations relevant to this determination, including use of or
awareness of the presence of a weapon or weapons, physical presence at the scene and
opportunity to restrain confederates or aid victims, the duration of the crime, knowledge
of any threat the confederates might represent, and efforts taken to minimize risks.’
[Citation.] ‘“[N]o one of these considerations is necessary, nor is any one of them
necessarily sufficient.”’ [Citation.] The ‘totality of the circumstances’ must be analyzed
to determine whether the defendant acted with reckless indifference. [Citation.]”
(People v. Emanuel (2025) 17 Cal.5th 867, 882-885, fns. omitted (Emanuel).)
C. Analysis
Here, the question is whether the superior court applied the reckless indifference
standard as articulated in Clark. To answer this question, we are mindful of Clark’s list
of considerations, and that reckless indifference encompasses both subjective and
objective elements. Accordingly, for us to conclude that the court did not fail to consider
the Clark factors separately and apart from the Banks factors, the record must show that it
contemplated these questions: Was defendant aware of the presence of a weapon? Did
17 he know his codefendant was likely to use force? Was he physically present at the scene?
Did he have an opportunity to minimize the overall risk of violence, restrain his
codefendant, or aid the victim? What was the duration of the crime? Did he consciously
disregard the significant risk of death his actions created? Did he “‘“knowingly creat[e] a
‘grave risk of death.’”’” (Emanuel, supra, 17 Cal.5th at p. 884.) We are mindful that
“‘“[n]o one of these considerations is necessary, nor is any one of them necessarily
sufficient,”’” and “[t]he ‘totality of the circumstances’ must be analyzed to determine
whether the defendant acted with reckless indifference. [Citation.]” (Id. at p. 885, fn.
omitted.)
Judge John D. Molloy presided over the hearing on defendant’s petition for
resentencing. He read through the entire transcript of the trial and concluded that
defendant was not the actual slayer. Thus, he stated that defendant’s “liability for murder
rises or falls on aider and abettor liability under felony murder rule, and whether he was a
major participant acting with a reckless disregard.” The judge summarized the witnesses’
testimonies and the relevant law, including Banks, Enmund, and Tison. He acknowledged
that felony-murder special circumstance (§ 190.2) imposes “both a special actus reus
requirement, major participation in the crime, and a specific mens rea requirement,
reckless indifference to human life.” The judge found defendant to be a major participant
based on the facts that he gained access to the house for his codefendants, told everyone
not to worry when they heard the gunshot, explained to them that this is about a debt that
18 is owed, and then opened a trash bag and began to remove property. Defendant does not
dispute this finding.
Turning to the reckless disregard element, Judge Molloy looked to the “teachings
of Banks” and considered the relevant factors. First, he found that defendant was “the
one who set everyone up” and thus played a significant role in planning the robbery that
led to the victim’s death. Defendant challenged the judge’s finding that defendant knew
what was going on in the bedroom after the shot, “like it was like a part of the robbery.”
More specifically, he claimed the testimony shows that he made the statement, “Don’t
worry. This is about a debt that was owed,” (herein “the statement”) and started
unhooking the DVD player prior to the shot. Judge Molloy referenced two witnesses’
testimonies regarding the sequence of events, stating that “both of them indicate that even
after that, whether it was a statement first, shots second, or shot first, statement second,
that immediately after that, your response was to open the trash bag that you had
requested ahead of time and start putting the DVD in there.” Following further
discussion, the judge stated he would “go back and look at it a second time.”
Second, regarding defendant’s awareness of “the particular dangers posed by the
nature of the crime, weapons used, or past experience or conduct of other participants,”
Judge Molloy stated, “I have no idea what your experience with the other participants
was before this. There was nothing brought into evidence other than you’ve all been
friends a while. You know each other. Nobody, not Session, none of the statements
contributed to Walton, none of the statements by any of the other witnesses tell me what
19 you know about them. [¶] The only thing I know about is, if we believe what Session
said to [Investigator] McDonagh, that the gun was yours and that you had supplied it.”
Acknowledging that Session was not a very credible witness, the judge noted that, “what
he testified to was completely consistent with how Mary [Lindsey] and [Angela] Rippy
characterized events.”
Third, Judge Molloy answered, “Yes,” to the question, “Was the defendant present
at the scene of the killing?”
Fourth, Judge Molloy asked, “Was [defendant] in a position to facilitate or prevent
the actual murder?” In response, the judge stated, “If we talk about the bedroom, the
answer is no. If we talk about the apartment in general, the answer will be yes.”
Fifth, in response to the question, “[D]id [defendant’s] own actions or inactions
play a particular role in the death?” Judge Molloy stated, “Tougher to say. It appeared
that at the time the gun went off, you were on the couch—or the loveseat.”
Finally, Judge Molloy asked, “What did the defendant do after lethal force was
used?” The judge commented, “I read the testimony different than what you’re
suggesting.· It suggests that you began taking the property after the gunshot went off.
That is one of the things that I get to consider. When I look at that—when I look at that,
what I see is a person—[¶] . . . [¶]—who acted in reckless disregard.” Defendant again
asserted the sequence of events, the statement, and unhooking the DVD, happened prior
to the shot. The judge replied, “I’ll take a second look.”
20 Following a short break, Judge Molloy informed the parties that he “went back
over all of Miss Rippy’s testimony and all of Miss Daniel’s testimony,” and then he read
the portions of their testimonies that covered “the sequencing in terms of what happened
with the gunshot, and the comments.” After reading the testimonies, the judge noted that
Miss Rippy testified on direct that it was “shot, [the statement], stuff taken off,” but then
on cross-examination said that the shot was after the statement and unhooking the DVD.
However, Miss Daniels was clear about the sequence of events. Judge Molloy chose to
believe Miss Daniels’s testimony because Miss Rippy had been smoking crack in the
kitchen, while there is no evidence that Miss Daniels was on crack cocaine or disoriented.
The judge then stated, “When I make judgment calls, I’ve got to make it based on
what I have before me. I read all of this. I did. It looks like you set this up. And I’m
being honest it looks like when the shot—to me, based on what I reviewed from the
witnesses, it looks like when the shot got off, you went, Hey, guys. Hey, this isn’t about
you. This tells me you knew what was going down. I’m just being man to man straight
from what I read. It looks like you knew what was coming. [¶] When it happened, it
wasn’t a surprise. And you continued taking property, which is the type of things that I’m
supposed to consider under People v. Banks.· It looks like you’re good for it to me.”
When defendant asked if the judge’s finding was “like intent to kill,” Judge
Molloy responded, “No. It’s not. It is not an intent to kill. It is different. [¶] . . . [¶]
. . . I told you, the facts are not sufficient from which I could even come close to
determine that you had a specific intent to kill in the bedroom.” Rather the judge found
21 defendant to be a major participant acting with reckless indifference. He reiterated his
thoughts on determining whether defendant acted with reckless indifference as follows:
“I get to consider what you did before and what you did after.
“I’m a little bit hesitant to accept what Session said to [Investigator] McDonagh,
but I can tell you this, everything he said to McDonagh checked out. Everything he said
to McDonagh checked out. I was the shooter. I know where the gun is. He took him
right to the gun. It happened in the bedroom. That’s where it went down. He was shot in
the chest. That’s where he was shot. [¶] . . . [¶] . . . Walton and [defendant] were
already in the house. Every witness agrees upon that.
“One of the things he also says is it was your gun, and you provided it, and you
gave it to him. It would be easy for me to conclude that he did, in fact, do that. In which
case, you’re the one inserting or bringing along the deadly force.
“I thought about that for a bit, and thought, I’m going to do this two ways before I
have to make that final credibility judgment as to Session because, like I said, he was all
over the place.
“I said to myself, well, what if he didn’t? What if I don’t conclude that I believe
[defendant] is the guy that brought the gun to the party? So I went back and looked at
what actions you did. And what I was very curious about is what we’ve been talking
about. What happened right before the gun went off, and what happened right after the
gun went off because you were there.
22 “And when I look at this, it looks like—to me, it looks like you were not surprised.
It looks like you knew that that was something that was going down, and you continued
to steal afterwards. When I look at that, that is heart and soul of what reckless
indifference—of what major participant acting with reckless indifference looks like. It is.
And it’s something between the Tisons, who were blood-thirsty folks, and Mr. Enmund,
who was just the getaway driver.
“And just so you know—and you may have been here the day it happened. There
was a case in this department where I found somebody not guilty who just happened to be
there. He happened to be there. He was a third member of three gang members. And he
was there. He never threw a punch. Nobody ever attributed a single comment to him.
And this other guy, who had come back with a gun, got out, and opened up on the crowd.
That’s what the legislature was after.
“But that’s not you. You were the one that set it up, and you were there. And what
you did immediately following the gunshot, that I believe has been demonstrated beyond
a reasonable doubt, after the gunshot convinces me beyond a reasonable doubt that the
People have proved that you were a major participant acting with a reckless disregard.
And that’s the reason for my ruling.”
Defendant asked, “Is it the Court’s position that you’re not going to even consider
the Clark factors, you’re just going all on Banks?” Judge Molloy replied, “Clark factors
and Banks factors are no different, they are just different ways of articulating the same
thing.” The judge then reiterated the relevant factors and found the most damning one to
23 be what defendant did after lethal force was used: “I believe that the force of the
evidence suggests that after lethal force was used, he told everyone to relax, which
suggests to me that he knew lethal force was going to be used, and he continued to steal.”
Contrary to defendant’s assertion, the record shows the superior court considered
all the Clark factors except for one, the duration of the crime. However, as we have
previously observed, “‘“[n]o one of these [factors] is necessary, nor is any one of them
necessarily sufficient,”’” and “[t]he ‘totality of the circumstances’ must be analyzed to
determine whether the defendant acted with reckless indifference. [Citation.]”
(Emanuel, supra, 17 Cal.5th at p. 885, fn. omitted.) Even without consideration of the
duration of the crime, the remaining factors considered by the court support its finding.
III. DISPOSITION
The order denying the petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
We concur:
FIELDS J.
MENETREZ J.