People v. Cervantes CA2/6

Opinion

Filed 9/17/26 P. v. Cervantes CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B343365 (Super. Ct. No. 2018000854) Plaintiff and Respondent, (Ventura County)

v.

MARIO CERVANTES,

Defendant and Appellant.

Mario Cervantes was originally charged with murder committed during the commission of an armed robbery. Cervantes is not the actual killer, and it is undisputed that he did not act with the intent to kill. Pursuant to a plea agreement, Cervantes pleaded guilty to voluntary manslaughter (Pen. Code,1 § 192, subd. (a)) and second degree robbery (§ 211) and admitted 1 Further unspecified statutory references are to the Penal Code. a prior strike conviction (§ 667, subd. (e)(1)). He was sentenced to 22 years in prison. Cervantes appeals from an order denying his petition for resentencing under section 1172.6. He contends the evidence is insufficient to support he was a major participant who acted with reckless indifference to human life. We agree and reverse with directions. FACTS AND PROCEDURAL HISTORY2 Cervantes and Jeffrey Aguilar were friends and members of the Colonia Chiques gang in Oxnard. Aguilar’s gang moniker was “Tripper” because of his reputation of being quick to take action against a person who “c[a]me at him sideways or anything.” Cervantes was “loyal” to Aguilar because he was his friend and fellow gang member. In August 2008, Aguilar asked Cervantes for a ride to a branch of U.S. Bank in Oxnard. When they arrived at the bank, Aguilar told Cervantes that he and his aunt, Maria Bucio, planned to rob Gurmohinder Singh. Bucio knew Singh regularly withdrew large amounts of money from the bank. Aguilar and Cervantes waited in Cervantes’s parked car facing the bank entrance. When Bucio arrived, she briefly spoke with Singh before making a gesture identifying him. Aguilar said, “ ‘That’s him right there.’ ” After leaving the bank, Aguilar received a phone call from Bucio. Aguilar told Cervantes that the robbery was going to happen the next day. Aguilar said he needed a “gun” and asked 2 The facts are taken from the evidence presented at the section 1172.6 proceedings including the trial transcript of Cervantes’s direct examination in codefendant Jeffrey Aguilar’s trial and the probation report.

2 Cervantes for a ride to obtain one. They made a few stops to collect money and then went to another gang member’s house. Aguilar got out of the car while Cervantes waited, and Aguilar returned with a firearm. Aguilar also asked Cervantes to pick up Christina DeLeon at her house and drive back to the U.S. Bank. Once they arrived at the U.S. Bank, Aguilar told Cervantes to park behind the bank near a dumpster area of a nearby apartment building. Aguilar told DeLeon about the robbery plan and asked her to be the getaway driver. According to the plan, DeLeon would park her car in the dumpster area and leave the trunk open, while Aguilar would jump the fence behind the bank after the robbery, climb into the trunk, and the two would drive away. DeLeon agreed to the plan. Aguilar asked Cervantes to park in the alley behind U.S. Bank so he can “burn rubber” and cause a distraction for the police. He agreed to do so. Aguilar asked Cervantes, “ ‘What do you think I should do? Should I shoot [Singh] or should I just rob him? Just take his money and that’s it?’ ” Cervantes initially was quiet and Aguilar started laughing. Cervantes then responded, “ ‘You know what, go ahead and shoot him. I don’t care.’ ” Aguilar replied, “ ‘Nah, I’m not gonna shoot him’ ” and “ ‘I’m just gonna ask him one time to give me the money, and if he don’t give me the money, then I’m just gonna let him have it.’ ” Cervantes asked Aguilar why he wanted to commit this robbery. Aguilar said he was “pissed off that . . . he didn’t have a job, he didn’t have . . . money, . . . that the cops had towed his car and that they were always on him.” Cervantes offered to talk to his boss to help Aguilar get a job where he worked. All Aguilar needed was a driver’s license. Aguilar replied, “ ‘Well, too bad. I don’t got one.’ ”

3 The next morning, Cervantes got up around 8:00 am. He received a call from Aguilar asking him, “[W]here you at?” Cervantes told Aguilar, “ ‘I got my son with me right now. I can’t make it.’ ” Cervantes could have left his son at the house with other adults, but he told Aguilar he could not make it because he “wasn’t trying to get involved with anything.” Aguilar did not believe Cervantes and was “pissed off.” Cervantes told Aguilar that he did not know if he wanted to be involved, but Aguilar told him, “ ‘Come on, man. You don’t got to be involved with anything.’ ” Cervantes replied that he was going to be there. He took his son with him to show Aguilar that he was not lying. Cervantes went to the Carl’s Jr. parking lot across from the front of the bank. Aguilar called Cervantes on his drive over. When Cervantes arrived at the Carl’s Jr., Aguilar called him again and said, “ ‘I see you driving up’ ” and “ ‘What are you doing? You’re supposed to go to the alley [behind the bank].’ ” Cervantes replied, “ ‘I got my son with me’ ” and went into Carl’s Jr. with his son. Aguilar saw them and said, “ ‘Oh, all right.’ ” Cervantes understood this to mean that it was “okay” that he was not behind the alley because Aguilar knew he was not going to put his son at risk. From the inside of the Carl’s Jr., Cervantes could see the front of the U.S. Bank and Aguilar standing in front. Thereafter, Cervantes walked out of Carl’s Jr. back to his car. He did not look toward Aguilar’s direction as he was leaving, and he did not see the victim. He “walked directly to [his] car” and “just drove away.” He did not hear shots before he left. As he drove on one of the adjoining streets, he “got caught in the traffic” and heard sirens. He knew “something had happened.” Cervantes drove back home.

4 Aguilar had shot Singh multiple times at close range. Singh died at the scene. Aguilar called Cervantes while in the trunk of DeLeon’s car and asked, “Hey man, did you see that?” Cervantes responded, “ ‘Yeah, yeah, I seen that.’ ” Cervantes did not know why he told Aguilar he saw what happened when he did not see the robbery or murder happen. Later, Cervantes drove to Aguilar’s house after Aguilar called to say he wanted to meet with him. Aguilar told him he shot and killed Singh. Aguilar gave Cervantes $1,000 and told him, “to say nothing.” Aguilar’s girlfriend went to a car dealership to buy Aguilar a car with the stolen money. Aguilar also gave money to cohorts, spent money on other items, and went to a casino. Cervantes saw Aguilar on another day, and Aguilar appeared nervous. Aguilar said his probation officer told him there was a warrant out for his arrest for murder/robbery. Aguilar asked Cervantes to find him another firearm. Cervantes obtained one from his cousin and gave it to Aguilar. Later, when Aguilar attempted to avoid arrest, he opened fire at police officers. Charges and plea agreement The district attorney filed a complaint charging Cervantes with the murder of Singh (§ 187, subd. (a)), voluntary manslaughter (§ 192, subd. (a)), and second degree robbery (§ 211). The complaint included two special circumstance allegations that he committed murder during the commission of the robbery (§ 190.2, subd. (a)(17)(A)), and that Cervantes, while not the actual killer, was a major participant in the robbery who acted with reckless indifference toward human life (§ 190.2, subd.

5 (d)). The complaint also alleged prior strike and prior prison term allegations. In 2009, Cervantes entered into a plea agreement with the prosecution to testify against Aguilar in exchange for a guilty plea to a reduced charge of voluntary manslaughter and second degree robbery and a stipulated 22-year prison sentence. The agreement stated that any statements Cervantes made in the investigation and prosecution of Aguilar “will not be used against [Cervantes].” Cervantes cooperated with the prosecution and testified in Aguilar’s case. In 2018, Cervantes pleaded guilty to voluntary manslaughter and second degree robbery, admitted prior strike and prior prison term allegations, and was sentenced to 22 years in state prison. The murder count and special circumstance allegations were dismissed. Section 1172.6 petition proceedings In April 2022, Cervantes filed a section 1172.6 resentencing petition. The trial court denied the petition without holding an evidentiary hearing. In May 2024, we reversed the denial of the petition, concluding the trial court engaged in improper factfinding at the prima facie stage. We directed the trial court to hold an evidentiary hearing. (People v. Cervantes (May 7, 2024, B327343) [nonpub. opn.].) Following remand, the prosecution opposed resentencing and attached the trial transcripts of Cervantes’s direct examination in Aguilar’s murder case and the probation report as supporting exhibits. The trial court held an evidentiary hearing in November 2024. At the hearing, the prosecution contended that Cervantes was not entitled to resentencing because he was a major participant who acted with reckless indifference to human 6 life under People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). Cervantes argued he was entitled to relief because the prosecution agreed in the plea agreement that it would dismiss the special circumstance allegation that Cervantes was a major participant who acted with reckless disregard for human life (§ 190.2, subd. (d)). Thus, he should “be given the benefit” of the agreement and not be punished as a major participant. Cervantes also argued that the trial transcripts should not be considered by the court because their use violated the plea agreement, which stated that any statement Cervantes made in the prosecution of Aguilar “will not be used against [him].” The court took the matter under submission. In January 2025, the trial court denied the resentencing petition. The court did not make any finding on the Banks and Clark factors or any other factual findings as to whether Cervantes was a major participant who acted with reckless indifference to human life. The court summarized defense counsel’s argument that “the use of the plea and the agreement is being used for a different purpose than what was initially agreed to back when this plea was entered into.” The court said, “I agree that it’s not the way it’s supposed to be, and there’s a fairness in equity argument that has a lot of validity to it. [¶] The problem I had was when you look at Penal Code Section 1172.6, it doesn’t address that, and that’s where the connundrum [sic] was for the Court.” The court further stated that it “believe[d] [Cervantes] should be out . . . but, unfortunately, by the rule of law in the Penal Code Section [1172.6], I can’t do it.” According to the respondent’s brief, Cervantes is out of custody.

7 DISCUSSION Cervantes contends he is entitled to relief under section 1172.6 because the evidence is insufficient to support a murder conviction under current law. The Attorney General correctly concedes that Cervantes could not be convicted as a direct aider and abettor because there is no evidence he harbored an intent to kill. Nonetheless, the Attorney General contends reversal of his voluntary manslaughter conviction is not warranted because substantial evidence supports a finding that Cervantes was a major participant who acted with reckless indifference to human life. For reasons we shall explain, we disagree. Senate Bill No. 1437 In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) to “amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who [was] not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) To accomplish these goals, Senate Bill No. 1437 redefined “malice” in section 188, and narrowed the classes of persons liable for felony murder under section 189. (Stats. 2018, ch. 1015, §§ 2–3.) It also added what is now section 1172.6 to the Penal Code, which permitted those convicted of felony murder or murder under a natural and probable consequences theory to petition to have their murder convictions vacated and be resentenced on any remaining counts. (Stats. 2018, ch. 1015, § 4; see also Stats. 2022, ch. 58, § 10 [renumbering former section 1170.95 as section 1172.6 without substantive change].) Senate Bill No. 775 (2021–2022 Reg. Sess.)

8 subsequently extended this relief to persons convicted of manslaughter. (See Stats. 2021, ch. 551, § 2.) If a trial court determines that a petitioner has made a prima facie case for relief, it “shall issue an order to show cause” and hold an evidentiary hearing. (§ 1172.6, subds. (c), (d)(1).) At the evidentiary hearing, the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioner is guilty of murder under California law as amended by Senate Bill No. 1437. (§ 1172.6, subd. (d)(3).) The parties may offer evidence from a prior trial or hearing or offer new or additional evidence. (Ibid.) If the prosecution fails to carry its burden of proof, “the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.” (Ibid.) Standard of review We review the denial of a section 1172.6 petition following an evidentiary hearing for substantial evidence. (People v. Emanuel (2025) 17 Cal.5th 867, 885 (Emanuel).) “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 beyond a reasonable doubt” that Cervantes was a major participant who acted with reckless indifference to human life. (Ibid.) “Our job on review is different from the trial judge’s job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a 9 rational fact finder’s findings beyond a reasonable doubt.” (People v. Clements (2022) 75 Cal.App.5th 276, 298.) For the purposes of our substantial evidence review, we assume without deciding that the evidence the prosecution proffered at the section 1172.6 hearing, including the trial transcripts of Cervantes’s testimony in Aguilar’s trial and the probation report, was properly admitted. We also assume the court made an implicit finding that Cervantes was a major participant who acted with reckless indifference to human life. Nevertheless, we conclude there is no substantial evidence to support the court’s implicit finding. Banks and Clark factors A person who did not kill or act with the intent to kill may be liable for murder under the felony-murder doctrine only if they were a “major participant in the underlying felony and acted with reckless indifference to human life.” (§ 189, subd. (e)(3).) The major participant and reckless indifference standards “did not originate with Senate Bill No. 1437,” but rather “the Legislature imported those standards from section 190.2, subdivision (d), which governs the felony-murder special circumstance” that renders a criminal act eligible for the death penalty or life without parole. (Emanuel, supra, 17 Cal.5th at p. 881.) In Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, our high court interpreted section 190.2, subdivision (d) and provided guidelines for the major participant and reckless indifference standards. (Emanuel, at p. 883.) When “Senate Bill No. 1437 amended Penal Code section 189 to incorporate major participation and reckless indifference requirements, it codified 10 the understanding of those requirements elucidated in Banks and Clark.” (People v. Strong (2022) 13 Cal.5th 698, 710.) Banks identified factors relevant to determining whether a defendant was a major participant in the underlying felony: (1) the defendant’s role in planning the crime that led to the death; (2) the defendant’s role in supplying or using deadly weapons; (3) the defendant’s awareness of the particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of other participants; (4) whether the defendant was present at the scene of the killing, in a position to facilitate or prevent it, and whether the defendant’s own actions or inactions played a particular role in the death; and (5) the defendant’s actions after lethal force was used. (Banks, supra, 61 Cal.4th at p. 803.) Clark identified factors relevant to whether a defendant acted with reckless indifference to human life: (1) the defendant’s knowledge of weapons, and the use and number of weapons; (2) the defendant’s physical presence at the scene of the crime and opportunity to restrain the crime and/or aid the victim; (3) the duration of the interaction between the perpetrator and the victim; (4) the defendant’s knowledge of their cohort’s propensity for violence or likelihood of killing; and (5) the defendant’s attempts to minimize violence during the crime. (Clark, supra, 63 Cal.4th at pp. 618–622.) A defendant’s youth can also be a relevant factor in the reckless indifference analysis. (People v. Keel (2022) 84 Cal.App.5th 546, 558–559.) No one of the Banks or Clark factors “is necessary, nor is any one of them necessarily sufficient” to establish a defendant was a major participant or acted recklessly indifferent to human life. (Banks, supra, 61 Cal.4th at p. 803; Clark, supra, 63 Cal.4th at p. 618.) Moreover, there is often a “significant[] overlap”

11 between being a major participant and acting with reckless indifference to human life, “ ‘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.) Major participant Cervantes contends insufficient evidence supports a finding he was a major participant under Banks. We agree. First, Cervantes was not the mastermind who planned the robbery. Aguilar and Bucio planned it. Cervantes learned about the robbery plan for the first time after he had already driven Aguilar to the U.S. Bank, where Bucio identified Singh. There is no evidence Cervantes planned or orchestrated any part of it. For instance, the evidence shows Aguilar planned the escape and assigned roles to DeLeon as the getaway driver and Cervantes as the distraction. And, it was Aguilar who made the arrangements to obtain the firearm used in the robbery, while Cervantes drove him to the location to retrieve it. In cases where a major participant finding was substantiated, there was evidence that the defendant played a “ ‘substantial’ ” role or was a “mastermind who planned and organized” the underlying offense and “orchestrat[ed] the events at the scene.” (Clark, supra, 63 Cal.4th at p. 612; Tison v. Arizona (1987) 481 U.S. 137, 158 (Tison) [petitioners were “actively involved in every element of the kidnaping-robbery and w[ere] physically present during the entire sequence of criminal activity culminating in the murder . . . and the subsequent flight”]; see also People v. Mitchell (2022) 81 Cal.App.5th 575, 584 [defendant agreed to rob someone with his brother, helped pick out the victim, and after the victim was injured, held the firearm while his brother rifled through the victim’s pockets].) Unlike 12 these cases, the evidence does not establish Cervantes played a prominent role in planning the robbery. We turn to the second factor—Cervantes’s role in supplying or using a firearm in the robbery. Cervantes knowingly and willingly assisted Aguilar by driving him to the location where Aguilar retrieved a firearm. But it was Aguilar who directed Cervantes on where to drive and who personally retrieved the firearm while Cervantes remained in his car. The Attorney General asserts that Cervantes “encouraged Aguilar to use lethal force.” The Attorney General is referring to when Aguilar asked Cervantes if he should “ ‘shoot [Singh] or . . . just rob him,’ ” and Cervantes responded, “ ‘You know what, go ahead and shoot him. I don’t care.’ ” But, these statements in context reflect general apathy rather than encouragement. In contrast, in People v. Richardson (2022) 79 Cal.App.5th 1085, 1088, the defendant “yelled, ‘Shoot him. Shoot him,’ ” directing his armed coparticipants to shoot a citizen who was following the defendant’s car during the commission of the crime. Richardson was a major participant in the underlying robbery, as his orders to shoot showed he “took on—or already had—a role in directing the robbery and the conduct of his coparticipants.” (Id. at pp. 1091–1092.) Unlike Richardson, Cervantes’s statements here did not order Aguilar to do any act. And, in fact, Aguilar’s response that he was “ ‘not gonna shoot [Singh]’ ” indicates that he did not perceive Cervantes’s statements as an order or encouragement. For the third factor, we examine what awareness Cervantes had of the particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants. Here, Cervantes was aware that Aguilar planned an armed robbery. He also knew Aguilar had a 13 reputation for reacting quickly and acting against a person who “c[a]me at him sideways.” Additionally, both Cervantes and Aguilar were gang members, and Cervantes, himself along with other gang members, had been previously involved in a robbery in which he threatened the victim with an ice pick. But the record is unclear as to whether Cervantes knew Aguilar would shoot the victim. Aguilar expressly told Cervantes that he was not going to shoot Singh. But Aguilar also said he was “ ‘just gonna ask [Singh] one time to give me the money, and if he don’t give me the money, then I’m just gonna let him have it.’ ” Even if this factor weighs against Cervantes, it does not establish he played a major role in the robbery. As to the fourth factor, Cervantes was not present at the scene of the killing or in an immediate position to facilitate or prevent it; nor did his actions or inactions play a particular role in the death. Cervantes was not at the bank with Aguilar. He was inside the Carl’s Jr. with his son across from the front of the bank. He did not see the robbery or shooting happen. Cervantes left the restaurant and was driving away when he heard sirens and realized “something had happened.” He was therefore not in an immediate position to prevent the shooting or render assistance. (See Banks, supra, 61 Cal.4th at p. 807 [the defendant “did not see the shooting happen . . . and could not do anything to stop the shooting or render assistance”]; see also Enmund v. Florida (1982) 458 U.S. 782, 788 [death penalty impermissible for a getaway driver who was not present at the scene of the killings]; In re Ramirez (2019) 32 Cal.App.5th 384, 405 [petitioner was “in close proximity to the shooting, but it does not show he was close enough to exercise a restraining effect on the crime or his colleagues”].)

14 Lastly, we examine Cervantes’s conduct after Aguilar killed Singh. Here, Cervantes left before the shooting occurred. He only became aware “something had happened” after he had already driven away and heard the ambulance coming to render aid to Singh. Thus, his actions immediately after the murder do not weigh against him. Later, after Cervantes learned about the murder, he accepted $1,000 of stolen money from Aguilar, obtained a second firearm for Aguilar upon his request, and initially lied to law enforcement to protect Aguilar. While this evidence shows that Cervantes participated and assisted in the robbery, it does not establish he played a major role. Moreover, the second firearm was used, if at all, in a subsequent shooting between Aguilar and the police. Cervantes was not charged with any crimes relating to Aguilar’s subsequent acts. In considering the totality of these factors, we conclude there is no substantial evidence that Cervantes was a major participant in the robbery. To be a major participant, a “defendant’s personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder.” (Banks, supra, 61 Cal.4th at p. 802.) While Cervantes may have been aware of the dangers of the armed robbery, the totality of evidence does not support his personal involvement was “substantial.” He did not plan the robbery, was not present at the time of the killing, and was not even aware of the killing at the time it happened. But even if we assume Cervantes was a major participant, the evidence is insufficient to support that he exhibited reckless indifference to human life.

15 Reckless indifference Reckless indifference to human life is “ ‘implicit in knowingly engaging in criminal activities known to carry a grave risk of death.’ ” (Clark, supra, 63 Cal.4th at p. 616.) It “encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.” (Id. at p. 617.) “Examples [of reckless indifference] 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.’ ” (In re Scoggins (2020) 9 Cal.5th 667, 676 (Scoggins).) The reckless indifference standard has both a subjective and an objective component. (Clark, supra, 63 Cal.4th at p. 617.) Subjectively, the 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.) Objectively, “ ‘ “[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.” ’ ” (Ibid.) “ ‘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 requirement.” (Ibid.)

16 “[P]articipation 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.” (Emanuel, supra, 17 Cal.5th at p. 884; see also Scoggins, supra, 9 Cal.5th at p. 677 [“ ‘the fact a participant [or planner of] an armed robbery could anticipate lethal force might be used’ is not sufficient to establish reckless indifference to human life”]; see also Banks, supra, 61 Cal.4th at p. 805 [“participation in an armed robbery, without more, does not involve ‘engaging in criminal activities known to carry a grave risk of death’ ”].) With these principles in mind, we turn to the first Clark factor—Cervantes’s knowledge of weapons and the use and numbers of weapons. “A defendant’s use of a firearm, even if the defendant does not kill the victim or the evidence does not establish which armed robber killed the victim, can be significant to the analysis of reckless indifference to human life.” (Clark, supra, 63 Cal.4th at p. 618.) While Cervantes knew Aguilar was armed, Cervantes did not personally use a weapon. Aguilar was the only person who had a weapon. As participation in an armed robbery alone does not establish reckless indifference, this factor does not weigh against Cervantes. (Emanuel, supra, 17 Cal.5th at p. 884; see Clark, at p. 619 [factor did not weigh in favor of reckless indifference finding where there was only one firearm at the scene used by the codefendant].) Second, we examine Cervantes’s presence at the scene of the crime and opportunity to restrain the crime and/or aid the victim. “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, 17 or where the participant who personally commits the murder exhibits behavior tending to suggest a willingness to use lethal force. In such cases, ‘the 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.) Here, Cervantes was not physically present at the scene of the killing. Before the robbery, he was inside a restaurant with his son across from the bank. He left without seeing the robbery or killing occur. He was therefore not in a position to restrain Aguilar nor render aid to Singh. This case is like Scoggins, supra, 9 Cal.5th at pages 678– 679, where Scoggins’s lack of presence at the crime scene weighed against a finding of reckless indifference. Scoggins planned for his accomplices to assault and rob the victim, but did not plan for his accomplices to shoot or kill the victim. Our high court observed that Scoggins was “at a nearby gas station during the course of the crime and did not arrive at the crime scene until after the shooting occurred. Moreover, it is not clear whether Scoggins could even see the confrontation between his accomplices and [the victim] from his position at the gas station.” (Id. at p. 678.) Moreover, while Scoggins was in close contact with his accomplices before the shooting, “he lacked control over their actions once they arrived on the crime scene, especially given how quickly the shooting occurred.” (Scoggins, supra, 9 Cal.5th at 18 p. 679.) Scoggins distinguished its facts from Tison, supra, 481 U.S. at pp. 139–141, where the Tison brothers broke two convicted murderers out of prison, brought a chest full of guns and armed the escapees, abducted a family of passing motorists at gunpoint while the escapees decided whether to kill the family, witnessed the escapees shoot and abandon the family in the remote desert, and drove away in the victims’ car. Unlike Scoggins, the Tison brothers were “physically present at the scene where a long sequence of events culminated in murder” and they had the opportunity to intervene before the shooting occurred. (Scoggins, supra, 9 Cal.5th at p. 679.) Similar to Scoggins, Cervantes had no such opportunity to intervene because he was not present at the crime scene and lacked control over Aguilar’s actions. Scoggins also acknowledged that “ ‘physical presence is not invariably a prerequisite to demonstrating reckless indifference to human life,’ ” but the examples it provided highlighted a defendant’s high level of culpability in the actual killing. (Scoggins, supra, 9 Cal.5th at p. 679.) For example, where “ ‘a defendant instructs other members of a criminal gang carrying out carjackings at his behest to shoot any resisting victims, he need not be present when his subordinates carry out the instruction in order to be found to be recklessly indifferent to the lives of the victims.’ ” (Ibid.) A “defendant who plans and directs a murder from afar may be just as culpable as a defendant who is physically present at the scene of the crime.” (Ibid.) But, like Scoggins, there was no evidence here that Cervantes instructed Aguilar to kill the victim. (Ibid.) The parties here concede that Cervantes lacked the intent to kill.

19 The Attorney General asserts Cervantes could have taken action to prevent Aguilar from moving forward with the plan once he arrived near the scene. Emanuel rejected a similar argument and vacated a first degree murder conviction in which Emanuel and his codefendant Whitley attempted a robbery. When the robbery did not go as planned and the victim and Whitley began to fight, Whitley attempted to shoot the victim in the leg but missed and fatally shot him in the neck. (Emanuel, supra, 17 Cal.5th at pp. 891, 878–879.) Emanuel rejected the argument that the defendant’s failure to intervene and prevent Whitley from shooting supported a finding of reckless indifference. Our high court concluded the lower court discounted evidence of the defendant’s attempts to abandon the crime and erroneously focused on what more he could have done to prevent the shooting. Emanuel stated, “Although we consider whether a defendant acts as a restraining influence on his cohorts, it is not incumbent on a defendant to actually prevent the violence or attempt to do so by any means necessary.” (Id. at p. 891.) “The essential question underpinning our analysis is not whether Emanuel did enough to try to stop Whitley’s unplanned act of violence; it is whether Emanuel acted with the requisite mens rea, i.e., reckless indifference to human life. The focus should not be on the ultimate efficacy of his actions, but on what his actions reveal about his mental state.” (Ibid.) Here, there is some evidence Cervantes attempted to dissuade Aguilar from committing the robbery. When Cervantes discovered the financial motive behind the robbery, he offered to help Aguilar find a job. Cervantes’s other actions before the robbery are also indicative of his state of mind. He did not comply with Aguilar’s orders to be at the bank early in the 20 morning and attempted to get out of participating by using his son as an excuse. He was ultimately persuaded to come after Aguilar ensured him that he “ ‘don’t got to be involved with anything.’ ” But even when he arrived, Cervantes did not follow Aguilar’s plan to go to the back alley. Cervantes instead brought his son with him to avoid involvement, and left before the shooting occurred. Such evidence of Cervantes’s reluctance supports he did not possess the requisite mens rea. Nor can we infer that Cervantes’s failure to intervene amounts to “intentional inaction indicative of reckless indifference to human life.” (Emanuel, supra, 17 Cal.5th at p. 891.) Cervantes left before the shooting occurred, and the interaction between Aguilar and Singh was not prolonged. (See post, at p. 23.) “This contrasts with cases like Tison, ‘where a long sequence of events culminated in murder,’ giving the defendants time to intervene.” (Emanuel, at p. 892, Tison, supra, 481 U.S. at pp. 139–141.) Emanuel and Scoggins also recognized that a “defendant’s conduct following the use of lethal force may be reflective of his or her mental state during the offense.” (Emanuel, supra, 17 Cal.5th at pp. 893–894; Scoggins, supra, 9 Cal.5th at pp. 679– 680.) For example, in Tison, the Tison brothers abandoned the victims in a remote desert after having disabled the only vehicle available to them. (Tison, supra, 481 U.S. at pp. 141, 151–152.) But, in cases where “different inferences may be drawn from the circumstances, the defendant’s actions after the shooting may not be very probative of his mental state.” (Scoggins, at p. 679.) In Clark, for example, our high court observed that the defendant’s act of fleeing the scene of the shooting could be subject to different interpretations. A defendant’s motivation could be a 21 rejection of the shooter’s actions, or it could be indicative of the defendant’s desire to leave the scene as quickly as possible without regard to the shooter’s or the victim’s welfare. (Clark, supra, 63 Cal.4th at p. 620.) It would be “difficult to infer [the defendant’s] frame of mind concerning [the victim’s] death” from the defendant’s postshooting conduct. (Ibid.; Emanuel, at p. 894; Scoggins, at p. 680.) Here, Cervantes’s postshooting conduct is not probative of his mental state at the time of the robbery. Cervantes left before the shooting occurred. Thus, his immediate actions after the shooting is not probative of his state of mind at the time of the robbery. And though Cervantes later went over to meet Aguilar, accepted $1,000 of stolen money, and obtained a second firearm at his behest, such conduct is “too attenuated” to shed light on Cervantes’s state of mind at the time of the robbery. (Emanuel, supra, 17 Cal.5th at p. 894 [“While postflight conduct may shed light on a defendant’s state of mind, conduct temporally removed from the violent act must clearly evince a culpable mental state”].) While such conduct is “incriminating as a general matter,” it “reveals little about whether he acted with the requisite state of mind when the shooting occurred.” (Id. at p. 895.) “However contemptable [a court] may find a defendant’s conduct following a killing, the governing standard is not satisfied by evidence that the defendant was generally indifferent to the fact that someone has been killed; it requires evidence that, at the time of the shooting, the defendant acted with indifference toward the grave risk that someone could be killed. Though the former may be evidence of the latter, it is insufficient, standing alone, to support murder liability.” (Ibid.)

22 The third factor, the duration of the interaction between Aguilar and Singh, also does not support a finding of reckless indifference. “Courts have looked to whether a murder came at the end of a prolonged period of restraint of the victims by defendant.” (Clark, supra, 63 Cal.4th at p. 620.) “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. The duration of the interaction between victims and perpetrators is therefore one consideration in assessing whether a defendant was recklessly indifferent to human life.” (Ibid.) Here, the duration of the interaction between Aguilar and Singh was short. Cervantes testified Aguilar called him when he arrived at the Carl’s Jr. before the interaction with Singh. Cervantes then left the Carl’s Jr., and the shooting occurred shortly thereafter. Surveillance videos showed Cervantes entered the Carl’s Jr. at 9:16 a.m., and the shooting at the bank occurred around 9:30 a.m. Thus, the entire duration was about 15 minutes or less. (See e.g. Emanuel, supra, 17 Cal.5th at p. 886 [short duration lasted about 12 minutes]; Scoggins, supra, 9 Cal.5th at pp. 680–681 [“limited” interaction lasted between a few seconds to three to five minutes].) There was no prolonged interaction or period of restraint. For the fourth factor, a “defendant’s knowledge of factors bearing on a cohort’s likelihood of killing are significant to the analysis of reckless indifference to human life. [A d]efendant’s knowledge of such factors may be evident before the felony or may occur during the felony.” (Clark, supra, 63 Cal.4th at p. 621.) “A defendant’s willingness to engage in an armed 23 robbery with individuals known to him to use lethal force may give rise to the inference that the defendant disregarded a ‘grave risk of death.’ ” (Ibid.) Here, Cervantes was aware of the armed robbery plan and Aguilar’s reputation to react quickly. But as far as Cervantes knew, Aguilar did not plan to shoot Singh because Aguilar explicitly told him so. There is also no evidence in the record that Cervantes knew Aguilar had previously killed or attempted to kill someone. (See Tison, supra, 481 U.S. at p. 152 [awareness that codefendant had previously killed was probative of the defendant’s culpable mental state].) Furthermore, the fact that the robbery occurred in broad daylight in public is relevant to the likelihood of lethal force being used. As our high court recognized, confrontations in a public location during daytime when witnesses are more likely present “might reasonably be thought to keep . . . accomplices within the bounds of the plan” and avoid violence. (Scoggins, supra, 9 Cal.5th at p. 683; Emanuel, supra, 17 Cal.5th at p. 887.)3 Indeed, Cervantes expressed that he thought it was “crazy” to “rob[] someone in broad daylight in front of the US Bank.” While Cervantes knew of the possibility that Aguilar would use lethal force, given Aguilar’s reputation and his statements that he would “let [Singh] have it” if Singh resisted, that is not enough to show reckless indifference. (See Scoggins, supra, 9 Cal.5th at p. 682 [Scoggins’s knowledge that his accomplices were “prone to some degree of violence” and even though the planned 3 We recognize our high court discussed the time of day and location in its analysis of the fifth factor, but we conclude these facts are also relevant to Cervantes’s knowledge of Aguilar’s likelihood to commit a killing.

24 assault of the victim necessarily contemplated the use of violence, the evidence was not enough to establish reckless indifference].) An “ ‘[a]wareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient’; reckless indifference to human life requires ‘knowingly creating a “grave risk of death.” ’ ” (Ibid.) “The degree of risk to human life is crucial to the analysis. [Our high court] ha[s] said that any person who plans or participates in an armed robbery can be said to anticipate that lethal violence might be used, given that ‘roughly 1 in 200 [armed robberies] results in death.’ [Citation.] But that fact, without more, does not establish reckless indifference to human life.” (Ibid.) We examine the fifth factor regarding Cervantes’s efforts to minimize the risk of violence during the robbery. Emanuel observed that the absence of efforts to minimize violence “does not necessarily evince a subjective disregard for risk where the objective circumstances of the planned crime suggest the risk of violence posed is no more than that inherent in any violent felony.” “In such a case, then, the absence of efforts to minimize the risk of violence cannot be said to weigh in favor of a finding of reckless indifference.” (Emanuel, supra, 17 Cal.5th at p. 888.) Here, other than Cervantes’s attempt to dissuade Aguilar from the robbery by offering to help him get a job, the record does not disclose affirmative efforts to minimize the risk of violence at the planning stage. But, under these circumstances—where Cervantes did not plan the robbery, was not present at the scene of the killing, left before the shooting, did not possess the intent to kill, and was told Singh would not be killed—such absence of efforts to minimize risk does not weigh in favor of reckless indifference.

25 The Attorney General asserts Cervantes increased the risk of violence by “encourag[ing]” Aguilar to shoot Singh when he said, “ ‘[G]o ahead and shoot him. I don’t care.’ ” But, as we have discussed, Aguilar did not perceive Cervantes’s comments as such because he stated he was not going to shoot Singh. (Ante, p. 13.) And, to the extent the Attorney General contends Cervantes’s assent to create a distraction reflected his willingness to endanger other lives, we are not persuaded. Cervantes may have initially agreed to be a distraction, but he tried to get out of participating on the morning of the robbery, did not obey Aguilar’s request to be in the back alley, brought his son to avoid involvement, and left before he could assist Aguilar in his getaway. Lastly, there is nothing in the record of Cervantes’s age or youth that is relevant to the reckless indifference determination. In sum, the record does not contain substantial evidence to support a finding that Cervantes was a major participant who acted with reckless indifference to human life. Because he is not liable for murder under current law, the voluntary manslaughter conviction must be vacated. Thus, we need not address Cervantes’s other arguments that the trial court applied the incorrect standard in denying the section 1172.6 petition, that counsel rendered ineffective assistance for failing to object to the admission of the probation report, and that the trial transcripts of Cervantes’s testimony in Aguilar’s trial were inadmissible. DISPOSITION The order denying Cervantes’s section 1172.6 petition is reversed and the matter is remanded to the trial court with instructions to vacate his voluntary manslaughter conviction and 26 resentence him on the remaining charges. (See § 1172.6, subd. (d)(3).) NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

CODY, P. J.

YEGAN, J.

27 Paul W. Baelly, Judge Superior Court County of Ventura ______________________________ 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, Stephanie C. Brenan and Melanie Dorian, Deputy Attorneys General, for Plaintiff and Respondent.