People v. Chapman CA2/7

Opinion

Filed 9/9/26 P. v. Chapman CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B340565

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. XSONA009550-01)

RONALD JOE CHAPMAN,

Defendant and Appellant.

Appeal from an order of the Superior Court of Los Angeles County, Richard M. Goul, Judge. Affirmed. Diane E. Berley, 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, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent. INTRODUCTION This is Ronald Joe Chapman’s third appeal. In 1992 a jury convicted him of first degree murder, robbery, and burglary and found true the allegation a principal (Chapman’s codefendant Haiji Whitsey) was armed with a firearm while committing the offenses. The trial court sentenced Chapman to a prison term of 25 years to life on his murder conviction, plus one year for the firearm enhancement, and concurrent terms on his robbery and burglary convictions. Chapman appealed, and we affirmed the judgment as modified. (People v. Whitsey (Sept. 22, 1993, B070694) [nonpub. opn.] (Chapman I).) In 2019 Chapman filed a petition under Penal Code section 1172.6,1 which among other things allows certain defendants convicted of felony murder to petition the court to vacate their convictions and resentence them. The superior court found Chapman failed to make a prima facie showing for relief and summarily denied the petition without issuing an order to show cause. Chapman appealed, and we reversed and directed the superior court to issue an order to show cause and conduct an evidentiary hearing under section 1172.6, subdivision (d). (People v. Chapman (B310488, Dec. 8, 2021) [nonpub. opn.] (Chapman II).) On remand the superior court found the People proved beyond a reasonable doubt Chapman was guilty of murder under a still-viable theory of felony murder under section 189, subdivision (e)(3). Chapman argues substantial evidence did not support the superior court’s findings that he was a major 1 Undesignated statutory references are to the Penal Code.

2 participant who acted with reckless indifference to human life and that, under People v. Morris (2026) 19 Cal.5th 671, a case the Supreme Court decided after the superior court’s ruling, the evidence “was insufficient to prove [he] aided and abetted the lethal act.” We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Chapman of First Degree Murder and Other Crimes, and We Affirm Early one morning in December 1991 Chapman and Whitsey went to the apartment of Frank Jackson, the boyfriend of Whitsey’s sister Alayne Bard, and robbed him. During the robbery, Whitsey shot and killed Jackson. At trial Bard testified that, the evening before the shooting, she, her children, and Whitsey went to Jackson’s apartment for a social visit.2 After the visit Jackson took Bard, the children, and Whitsey to Bard’s apartment, where Whitsey stayed for an hour. Approximately 15 minutes before Jackson left Bard’s apartment, Whitsey left with Chapman.3 Los Angeles County Sheriff’s Deputy John Smith testified he interviewed Chapman three weeks after Jackson’s murder. Smith testified Chapman stated that he had been drinking on the night of the shooting and that Whitsey told him to drive to 2 We granted Chapman’s request to augment the record with the reporter’s transcript of Chapman’s trial. (Cal. Rules of Court, rules 8.155(a)(1)(A), 8.340(c).)

3 Bard did not indicate when Chapman arrived at her apartment.

3 Jackson’s apartment. When they arrived, Chapman said, Whitsey knocked on the door, Jackson opened it, and after Whitsey went inside, Whitsey motioned for Chapman to come into the apartment and introduced him to Jackson as “Ron.” Chapman stated he began to play a video game in the living room and saw Whitsey and Jackson arguing in a back room. Whitsey came out of the room and told Chapman to take the stereo equipment out of the apartment. Chapman proceeded to remove various items from Jackson’s apartment, including a guitar and a rifle, and put them into his car. Chapman could not remember how many trips he made to his car with Jackson’s belongings.4 After one of Chapman’s trips from the apartment to his car, Chapman returned to Jackson’s apartment and saw Whitsey pointing a nine-millimeter gun at Jackson and heard Whitsey say, “I will kill you.” Chapman tried to dissuade Whitsey from shooting Jackson. After another trip to his car, Chapman returned to Jackson’s apartment and saw Whitsey pointing a second gun, a .25 caliber “semi-auto,” at Jackson. Whitsey threatened to shoot Jackson with the semiautomatic weapon by “activating the slide.”

4 At the preliminary hearing Deputy Smith testified Chapman told him that he made “three or four trips to carry items out and put them in the car.” We augment the record to include the transcript of the preliminary hearing, which the superior court stated it would review before ruling on Chapman’s petition. (Cal. Rules of Court, rules 8.155(a)(1)(A), 8.340(c); see People v. Davenport (2023) 95 Cal.App.5th 1150, 1158 [“Although section 1172.6, subdivision (d)(3) does not contain express language stating that a preliminary hearing transcript is admissible at the evidentiary hearing, a plain reading of the statute compels this conclusion.”].)

4 Chapman stated that he asked Whitsey what he was doing and that Whitsey said, “‘This fool got some money. He won’t tell me where it is.’” Chapman said to Whitsey several times, “‘Don’t shoot him’” and “‘Whatever you do, don’t shoot him.’” Whitsey continued to threaten Jackson: “Where your stuff at? I could just blow your brains out.” Chapman stated he punched Jackson in the face to show Whitsey that Jackson “was scared” and that there was no reason to shoot him because “the guy was too scared to tell.” Chapman stated he continued carrying out Jackson’s stereo equipment so Whitsey “wouldn’t shoot” Jackson. Whitsey told Chapman, “‘I’m going to have to kill him. I’m going to have to kill this dude.’” Chapman again told Whitsey not to kill Jackson. Whitsey said, “I got to kill him,” and Chapman said, “‘Man, don’t kill him. Come on. Let’s go.’” Chapman went to get the car. Jackson’s neighbor testified that, on the day of the shooting, she heard a car backing out of the driveway in front of her apartment building shortly after 5:00 a.m. and that a minute or two later she heard multiple gunshots and the sound of someone running. The neighbor stated that, for “that time of morning,” it was unusual to hear a car backing out. When the neighbor went inside Jackson’s apartment, she saw Jackson sitting on the floor of his kitchen, “seriously hurt.” The neighbor asked Jackson, “Who did this to you?” Jackson spelled, “A-J-H-A- J-I-E.” Sergeant Richard Adams of the Los Angeles County Sheriff’s Department testified that, when he arrived at Jackson’s apartment to investigate the shooting, he saw a large “wall unit” with wires and plugs, some of which “had been cut.” Sergeant Adams also saw “cutters” on the coffee table in front of the wall 5 unit, along with some games and other electronic items. A glass door “that was sitting on the floor” appeared to have been knocked off or taken off, and a nine-millimeter pistol, a .25 caliber semiautomatic gun, and a rifle were missing. Chapman’s cousin Robert Magee testified that, the day after the shooting, Chapman told him that he and Whitsey went to see Jackson the prior evening because “they were going to jack” (rob) him. Chapman told Magee that he “was drunk” and “didn’t know much of what was going on,” that he left the apartment with “some property,” that he “had no idea” Whitsey was going to shoot Jackson, and that he was outside in a car during the shooting. Whitsey’s girlfriend testified that, a few days after the shooting, Whitsey told her “he had killed” his sister’s boyfriend “for the money.” Whitsey said that he had two guns, one in each hand, and that “he just shot him.” The jury convicted Chapman of first degree murder, robbery, and burglary and found true the allegation a principal was armed with a firearm while committing the offenses. The trial court sentenced Chapman to 25 years to life on his murder conviction, plus one year for the firearm enhancement, and concurrent terms on the robbery and burglary convictions. Chapman appealed, and we affirmed the judgment as modified. (Chapman I, supra, B070694.)

6 B. Chapman Petitions for Resentencing and Successfully Appeals from the Order Summarily Denying His Petition; The Superior Court Holds an Evidentiary Hearing and Denies Chapman’s Petition In 2019 Chapman filed a petition under section 1172.6. Checking boxes on a form petition, Chapman alleged all the facts necessary to state a prima facie case for relief, including that he was convicted of first degree felony murder and that he could not now be convicted of murder after changes to section 189, effective January 1, 2019, because he was not the actual killer, did not with the intent to kill aid or abet the actual killer in committing murder in the first degree, and was not a major participant in the felony or act with reckless indifference to human life during the course of the felony. The superior court appointed counsel to represent Chapman and, after briefing and a hearing, summarily denied the petition. We reversed the order summarily denying Chapman’s petition and directed the superior court to issue an order to show cause and hold a hearing under section 1172.6, subdivision (d). (Chapman II, supra, B310488.) At the evidentiary hearing the prosecutor argued the evidence at the trial showed Chapman was a major participant who acted with reckless indifference to life. The prosecutor argued that Chapman knew Whitsey intended to kill Jackson (Chapman said he saw Whitsey repeatedly threaten Jackson with a gun); that Chapman took Jackson’s rifle from the apartment, which Jackson could have used to defend himself; and that, “rather than doing anything to de-escalate” the situation, such as staying with Jackson, pointing the rifle at Whitsey to stop him, or simply walking away, Chapman complied with Whitsey’s “directive, which was to steal everything that they could.” The 7 prosecutor questioned whether (as Chapman claimed) hitting Jackson aided Jackson and stated that, just when Whitsey was about to kill Jackson, Chapman went to the car, waited for Whitsey, and drove him away from the murder scene. Counsel for Chapman argued that, under the factors in Tison v. Arizona (1987) 481 U.S. 137, Chapman was not a major participant in the robbery or burglary: Chapman did not supply a weapon, and the “mere fact” Chapman participated in the robbery or burglary did not make him a major participant. Counsel also stated that there was no evidence Chapman encouraged Whitsey and that, rather than encourage Whitsey to shoot Jackson, Chapman told Whitsey not to. Counsel also asserted that, because Chapman was 21 years old at the time he committed the crimes, the court should apply the “youthful factors” of People v. Clark (2016) 63 Cal.4th 522 and find he did not act with reckless indifference to human life. The superior court found Chapman “was clearly a major participant,” as demonstrated by the evidence he drove Whitsey to Jackson’s home, hit Jackson in the face, took Jackson’s property from his home, returned “multiple times” while Whitsey was threatening to kill Jackson at gunpoint, and by taking Jackson’s rifle “arguably” prevented Jackson from defending himself. The court also found Chapman acted with reckless indifference to human life, stating Chapman “was acutely aware of the threat to Jackson, yet [he] continued to participate in the robbery . . . when he could have abandoned the plan, driven away, and called the police.” The court also stated that, after Chapman heard gunshots, he waited for Whitsey before driving away with him. The court concluded Chapman was “guilty of 8 murder under a still viable theory of homicide” and denied Chapman’s petition for resentencing. Chapman timely appealed.

DISCUSSION

A. Substantial Evidence Supported the Superior Court’s Findings Chapman Was a Major Participant Who Acted with Reckless Indifference to Human Life 1. Applicable Law and Standard of Review Effective 2019, the Legislature substantially modified the law governing accomplice liability for murder by eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly narrowing the felony-murder exception to the malice requirement for murder. (People v. Oyler (2025) 17 Cal.5th 756, 835; People v. Patton (2025) 17 Cal.5th 549, 558; People v. Arellano (2024) 16 Cal.5th 457, 467-468.) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on a person’s participation in a crime and requires proof of malice to convict a defendant of murder, except under the revised felony-murder rule. (§§ 188, subd. (a)(3), 189, subd. (e); Patton, at p. 558; Arellano, at pp. 467- 468.) The Legislature also “created a resentencing procedure for defendants who had previously been convicted of murder under prior law.” (People v. Lopez (2026) 19 Cal.5th 639, 648; see former § 1170.95, added by Stats. 2018, ch. 1015, § 4, subsequently renumbered as § 1172.6 by Stats. 2022, ch. 58, § 10.) Section 1172.6 authorizes a person convicted of felony murder, murder under the natural and probable consequences 9 doctrine, or attempted murder under the natural and probable consequences doctrine, to petition the superior court to vacate the conviction and resentence the defendant on any remaining counts if he or she could not now be convicted of murder or attempted murder because of the legislative changes to the definitions of murder. (People v. Lopez, supra, 19 Cal.5th at p. 648; People v. Oyler, supra, 17 Cal.5th at p. 835; People v. Arellano, supra, 16 Cal.5th at pp. 468-469.) If the petitioner makes the requisite prima facie showing, the superior court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the challenged conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c) & (d)(1); see People v. Morris, supra, 19 Cal.5th at p. 680; Patton, supra, 17 Cal.5th at p. 559.) Section 1172.6, subdivision (d)(3), provides that at the evidentiary hearing “the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.” (See People v. Emanuel (2025) 17 Cal.5th 867, 880 (Emanuel); People v. Patton, supra, 17 Cal.5th at p. 559.) The court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including “witness testimony, stipulated evidence, and matters judicially noticed,” and “[t]he prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens.” (§ 1172.6, subd. (d)(3); see People v. Diaz (2026) 118 Cal.App.5th 545, 557.) We review the superior court’s decision to deny a petition under section 1172.6 after an evidentiary hearing for substantial 10 evidence. (Emanuel, supra, 17 Cal.5th at p. 885.) “Under this standard, we review the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Reyes (2023) 14 Cal.5th 981, 988-989, internal quotation marks omitted; accord, People v. Lopez (2026) 121 Cal.App.5th 1171, 1185.) “In so doing, [we] presume[ ] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] Substantial evidence also includes circumstantial evidence and any reasonable inferences drawn from that evidence.” (People v. Grandberry (2025) 116 Cal.App.5th 934, 946; see People v. Davis (2024) 107 Cal.App.5th 500, 510; People v. Mitchell (2022) 81 Cal.App.5th 575, 593.) “[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends,” and “we do not reweigh credibility issues or resolve evidentiary conflicts.” (Davis, at pp. 509-510, 511; accord, Grandberry, at p. 946.)

2. Chapman Was a Major Participant Who Acted with Reckless Indifference to Human Life As amended by the Legislature, “the new felony-murder rule sets forth three theories of liability.” (People v. Morris, supra, 19 Cal.5th at p. 680; see Emanuel, supra, 17 Cal.5th at p. 880.) Section 189, subdivision (e), provides: “A participant in the perpetration or attempted perpetration of a felony listed in 11 subdivision (a)[5] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of section 190.2.” Under the third theory (section 189, subdivision (e)(3)), the one relevant to Chapman’s appeal, a person “who did not kill or act with the intent to kill can be liable for murder under the felony-murder doctrine only if he or she ‘was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.’” (Emanuel, at p. 880; see Morris, at p. 682.) In People v. Banks (2015) 61 Cal.4th 788 (Banks) the Supreme Court held that under section 190.2, subdivision (d), “a defendant’s personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder” and that “[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create.” (Id. at pp. 802, 801.) The Supreme Court listed several factors courts may consider in determining “whether the defendant’s participation ‘in criminal activities known to carry a grave risk of death’

5 Section 189, subdivision (a), provides that murder “that is committed in the perpetration of, or attempt to perpetrate,” burglary or robbery, among other felonies, “is murder of the first degree.”

12 [citation] was sufficiently significant to be considered ‘major’”: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?” (Banks, at p. 803, fn. omitted; accord, People v. Chhuon and Pan (2026) 19 Cal.5th 1018, 1068.) The Supreme Court cautioned, however, that none “of these considerations is necessary, nor is any one of them necessarily sufficient.” (Banks, at p. 803.) In People v. Clark, supra, 63 Cal.4th 522 the Supreme Court listed factors courts may consider in determining whether a defendant exhibited “reckless indifference to human life” within the meaning of section 190.2, subdivision (d). (Clark, at p. 618, internal quotation marks omitted.) “Relevant factors” a court may consider in determining whether the defendant exhibited reckless indifference to human life include: “Did the defendant use or know that a gun would be used during the felony? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant’s knowledge of his or her confederate’s propensity for violence or likelihood of using lethal force? What efforts did the defendant make to 13 minimize the risks of violence during the felony?” (In re Scoggins (2020) 9 Cal.5th 667, 677, citing Clark, at pp. 618-623; see People v. Chhuon and Pan, supra, 19 Cal.5h at p. 1068; Emanuel, supra, 17 Cal.5th at p. 884.) As with the Banks factors, none “‘of these considerations is necessary, nor is any one of them necessarily sufficient.’” (Clark, at p. 618.) The requirements for the two elements of section 190.2, subdivision (d), “‘significantly overlap . . . 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, at p. 615; accord, In re Harper (2022) 76 Cal.App.5th 450, 458.)

(a) Chapman Was a Major Participant Though the record does not contain evidence that Chapman planned the burglary or robbery or that he supplied weapons to Whitsey, Chapman was acutely aware of Whitsey’s intent to kill Jackson. Yet, his actions not only assisted in committing the underlying felonies, his conduct encouraged and made it more likely Whitsey would shoot Jackson. Chapman heard Whitsey repeatedly threaten Jackson at gunpoint and saw Jackson refusing to say where he hid his money. The standoff between Whitsey and Jackson intensified when, on one of Chapman’s trips back into Jackson’s apartment, Chapman saw Whitsey had two guns, one in each hand, pointed at Jackson, with the slide on one of the firearms activated. Nevertheless, Chapman, who could have taken steps to thwart Whitsey’s plan to shoot Jackson (including leaving the apartment and calling for help), continued to rob Jackson, making multiple trips to the car and back (and taking the time to cut the wires to the electronic equipment), conduct that allowed Whitsey to continue threatening Jackson at 14 gunpoint and pressure Jackson to disclose where he hid his money. In addition, Chapman took Jackson’s rifle, which Jackson could have used to defend himself; hit Jackson in the face, which effectively weakened Jackson; and backed his car out of the driveway to wait for Whitsey after he shot Jackson. The neighbor’s testimony she heard the car back out supported the reasonable inference Whitsey heard it too, a sound that unquestionably signaled to Whitsey the getaway car was ready. After Whitsey shot Jackson eight times Chapman waited for Whitsey and drove him to safety. Chapman played an integral role in enabling Whitsey to carry out the violent burglary and robbery that ended in Jackson’s murder. (See Banks, supra, 61 Cal.4th at p. 800 [“‘major participation’ should be understood as the phrase is used in common parlance, as including those whose involvement is ‘“notable or conspicuous in effect or scope”’ and who are ‘“one of the larger or more important members . . . of a . . . group”’”].) Chapman argues he told Whitsey “several times not to kill Jackson.” But as Chapman recounted to law enforcement, Whitsey continued to insist on killing Jackson because Jackson would not give Whitsey any money. Even if Chapman had tried to dissuade Whitsey from shooting Jackson, Chapman saw that Whitsey remained resolute in wanting to shoot Jackson when Jackson refused to give in to Whitsey’s demands. Chapman also asserts he “anticipated they were robbing someone Whitsey knew well, raising the strong inference that he believed the robbery would not turn fatal.” The superior court did not err in making a contrary inference and concluding Chapman and Whitsey did not commit a “garden-variety armed 15 robbery” (Banks, supra, 61 Cal.4th at p. 802) of a complete stranger. The evidence supported the reasonable inference Chapman was aware Jackson knew Whitsey well: Jackson let Whitsey and Chapman into the apartment when Whitsey knocked, and Chapman, Whitsey, and Jackson were at Bard’s apartment the evening before the robbery. And the best way for Whitsey and Chapman to clear out all the electronic equipment from Jackson’s apartment, without risk of Jackson identifying them, was to use deadly force. (See People v. Montanez (2023) 91 Cal.App.5th 245, 273 [defendant’s “presence at the crime scene afforded him the opportunity to observe additional facts showing the crimes posed a serious risk of danger” to the victim, who could “see the assailants’ faces and later identify them, giving [the shooter] . . . a motive to kill her to avoid detection for the crimes”]; In re Harper, supra ,76 Cal.App.5th at pp. 462, 461 [where the plan “was not to rob a stranger or a victim who would probably not report the crime,” the defendant “knew or reasonably should have known from the start that the victim was likely to be killed during the robbery”].)

(b) Chapman Acted with Reckless Indifference to Human Life The evidence did not indicate whether, before committing the burglary and robbery, Chapman knew that Whitsey was armed or that Whitsey had a propensity for violence, but the evidence showed Chapman at least knew he and Whitsey were going to Jackson’s apartment to rob Jackson (Chapman told Magee they went to Jackson’s house to rob him). The evidence also showed that, early on in the robbery, Chapman became aware Whitsey had a gun and used it to threaten Jackson. Thus, 16 Chapman knew for a considerable amount of time Jackson’s life was in jeopardy, and the length of the interaction between Whitsey and Jackson increased the risk of violence; indeed, after Jackson refused to give Whitsey what he wanted, Whitsey escalated the risk by pointing a second gun at him. (See Emanuel, supra, 17 Cal.5th at p. 886 [“‘Where a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods, “there is a greater window of opportunity for violence” [citation], possibly culminating in murder.’”]; In re Harper, supra, 76 Cal.App.5th at p. 461 [“Whatever petitioner may or may not have believed about the plan for the robbery at the outset . . . , he was clearly aware of the risk of death once the robbery was underway.”].) Chapman disregarded the increasing danger to Jackson’s life by continuing to remove Jackson’s personal property from the apartment while Whitsey threatened to kill Jackson. (See People v. Clark, supra, 63 Cal.4th at p. 619 [“Proximity to the murder and the events leading up to it may be particularly significant where . . . the murder is a culmination or a foreseeable result of several intermediate steps.”].) The prolonged interaction also gave Chapman opportunities to intercede; he did not. Chapman claimed he asked Whitsey not to shoot Jackson, but when Whitsey ignored Chapman’s purported requests, Chapman, seemingly indifferent to Jackson’s impending death, continued taking electronic equipment from the apartment to his car. As the superior court commented, though Chapman claimed he was afraid of Whitsey, he did not explain “why he continued to take property and reenter the house multiple times.” Chapman had time to react to the escalating risk of deadly violence, but chose to continue 17 robbing Jackson, and he let Whitsey know (through the sound of his car backing out) when it was time to escape. (See In re McDowell (2020) 55 Cal.App.5th 999, 1014 [after the shooter filed a “warning shot” that “would have indicated that [the shooter] was likely to engage in lethal violence,” the defendant had “a brief but critical opportunity . . . to say or do something to deescalate the situation”]; In re Loza (2017) 10 Cal.App.5th 38, 53 [“any objective observer would have appreciated the grave risk to life once [his confederate] entered the store and demanded money from the clerk while counting down from five and threatening to shoot,” conduct that “afforded petitioner the time to observe and react before the murder”]; cf. Emanuel, supra, 17 Cal.5th at p. 891 [“[i]n addition to saying ‘let’s go,’” the defendant “began walking away from the robbery” and, when “met with resistance,” the defendant “abandoned the plan rather than resort to greater violence”].) Chapman argues he tried to help Jackson by punching him in the face to show Whitsey that “Jackson was already too scared to tell anyone what happened and there was no need to kill him.” The superior court, however, impliedly discredited Chapman’s stated reason for punching Jackson and instead found Chapman’s conduct in hitting Jackson supported the finding Chapman was a major participant. We do not reweigh the superior court’s credibility determination. (See People v. Grandberry, supra, 116 Cal.App.5th at p. 946.) The court also did not give much weight to Jackson’s claim he asked Whitsey not to kill Jackson. Even if Chapman told Whitsey not to shoot Jackson and said they should leave, Chapman’s actions belied his words. Chapman did not leave 18 Whitsey or seek help; he stayed until the end, loaded his car with the stolen property, and helped Whitsey get away.

3. Chapman’s Youth at the Time He Committed His Crimes Does Not Lessen His Culpability Citing social science research and legislation that “recognizes the factor of youth in special circumstances prosecutions” and that authorizes offenders 25 years old and younger who are convicted of certain offenses to receive an earlier parole hearing, Chapman argues the court “failed to consider that, at age 21, [he] was impaired by a lack of impulse control and understanding of consequences.” Courts “have recognized that ‘a defendant’s youth is a relevant factor in determining whether the defendant acted with reckless indifference to human life.’” (Emanuel, supra, 17 Cal.5th at p. 885, fn. 6; see People v. Diaz, supra, 118 Cal.App.5th at p. 559, fn. 2.) Though the superior court’s written decision did not discuss Chapman’s age at the time he committed the crimes, we presume the court considered this factor. Counsel for Chapman raised the issue of Chapman’s relative youth in his brief in support of the petition for resentencing and at the evidentiary hearing, and nothing in the record suggests the court did not consider it. (See People v. Jones (2022) 86 Cal.App.5th 1076, 1092 [“we presume the trial court followed the law in exercising its duties and duly considered the evidence presented to it”].) Nor did the superior court err in impliedly finding Chapman did not demonstrate he acted with “‘transient rashness’” or had an “‘inability to assess consequences’” (People v. Oliver (2023) 90 Cal.App.5th 466, 490) that outweighed the Clark factors indicating he acted with reckless indifference to human 19 life. (See People v. Diaz, supra, 118 Cal.App.5th at p. 559, fn. 2 [“youth is not dispositive and courts have recognized that youthful offenders can act with reckless indifference to human life”]; People v. Mitchell, supra, 81 Cal.App.5th at p. 595 [“fact of youth cannot overwhelm all other factors” showing the defendant acted with reckless indifference to human life].) Chapman does not cite any evidence in the record, other than his age at the time he committed his crimes, to show he (as opposed to youth offenders in general) “was influenced by peer pressure” (People v. Ramirez (2021) 71 Cal.App.5th 970, 991) or failed “‘to appreciate risks and consequences’” (In re Moore (2021) 68 Cal.App.5th 434, 454).6 (See Oliver, at p. 490 [defendant “failed to present on appeal or in the court below any specific support for the proposition that his level of maturity somehow lessened his culpability for [the] murder”]; cf. People v. Jones, supra, 86 Cal.App.5th at p. 1091 [directing the superior court to consider youth as a factor, where a report in the record “asserted that [the defendant] had a traumatic and violent upbringing, had suffered from under-diagnosed mental health issues and drug abuse, . . . and appeared to be impulsive rather than criminally sophisticated”].) Moreover, Chapman’s account of the burglary and robbery revealed he was aware Whitsey intended to shoot Jackson (he repeatedly asked Whitsey not to shoot him). Despite this 6 Chapman’s probation report indicates that, at the time he committed the crimes, he was one month from turning 22 years old and already had a criminal record: two drug-related convictions, a conviction for grand theft of an automobile, and a conviction for assault with a deadly weapon. The probation report also reflects Chapman was on parole at the time he committed the crimes in this case.

20 awareness, Chapman continued to remove Jackson’s belongings from the apartment and waited for Whitsey in his car. His actions did not appear rash or impulsive. Nothing in the record indicated Whitsey pressured Chapman to participate in committing the crimes. Though Chapman claimed he feared Whitsey, there was no evidence Whitsey ever threatened Chapman. (See In re Harper, supra, 76 Cal.App.5th at p. 472 [defendant’s youth at the time of the offense (16 years old) “in no way undermines” that “the record contains substantial evidence he was a major participant in the robbery and he acted with reckless disregard for human life”]; cf. People v. Keel (2022) 84 Cal.App.5th 546, 562 [“there was evidence suggesting [a 15-year-old defendant’s] youth may have rendered him especially vulnerable to outside pressures”: his association with a street gang since he was a young child and “an expectation among gang members that younger gang associates would ‘instantly go do’ their bidding”]; People v. Ramirez, supra, 71 Cal.App.5th at p. 991 [“‘evidence to support a finding that [a 15-year-old defendant] was influenced by peer pressure’” included the defendant’s statement that “‘he did not want to approach the car, but [the shooter] insisted,’” and that he “‘was afraid that if he did not help [the shooter], the neighborhood would find out and someone might kill him later’”].) Under the “totality of the circumstances” (In re Scoggins, supra, 9 Cal.5th at p. 677), Chapman acted with reckless indifference to human life.

B. People v. Morris Does Not Apply As discussed, the amended felony-murder rule under section 189, subdivision (e), authorizes three theories of liability, and the superior court found Chapman was “guilty of murder”

21 under the third theory (section 189, subdivision (e)(3)). In People v. Morris, supra, 19 Cal.5th 671 the Supreme Court interpreted “the meaning of the amended language” in the second theory of liability (section 189, subdivision (e)(2)): “‘The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.’” (Morris, at pp. 682, 680, italics added.) In Morris the jury convicted the defendant of first degree murder and found true special circumstance allegations under section 190.2, subdivision (a)(17)(C) (rape), (a)(17)(A) (robbery), and (a)(1) (murder for financial gain). (Morris, at p. 679.) The defendant filed a petition for resentencing under section 1172.6, and the parties agreed the record of conviction established “as a matter of law” that the defendant “acted with the intent to kill” and that he “aided and abetted the actual killer in the underlying felonies.” (Morris, at p. 679.) The parties disagreed, however, on “what acts are required to prove the actus reus under section 189, subdivision (e)(2).” (Id. at p. 681.) The Supreme Court held that liability for murder under section 189, subdivision (e)(2), “requires proof the defendant aided or abetted the actual killer in the lethal act itself.” (Morris, at p. 678.) The phrase “in the commission of murder in the first degree” in section 189, subdivision (e)(2), does not appear in section 189, subdivision (e)(3), and the Supreme Court’s holding in Morris did not involve the third theory of felony-murder liability. The Supreme Court in Morris observed the Legislature used the term “‘underlying felony’” in section 189, subdivision (e)(3), to specify the conduct requirement under that theory, in contrast to the phrase “‘the commission of murder in 22 the first degree’” the Legislature used in section 189, subdivision (e)(2), and concluded the “use of different phrases signals the Legislature intended to define different acts necessary to prove guilt under each theory.” (Morris, at p. 684.) Contrary to Chapman’s assertion, the Supreme Court in Morris did not impose additional requirements under section 189, subdivision (e)(3), and the Supreme Court’s interpretation of section 189, subdivision (e)(2), in Morris does not apply to Chapman.

DISPOSITION

The order denying Chapman’s petition under section 1172.6 is affirmed.

SEGAL, J.

We concur:

MARTINEZ, P. J.

FEUER, J.