People v. Hall CA1/2

Opinion

Filed 9/23/26 P. v. Hall CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A173450 v. ANTHONY D’SHAWN HALL, (Solano County Super. Ct. No. VCR11177) Defendant and Appellant.

Defendant Anthony D’Shawn Hall appeals the denial of his petition to vacate his murder conviction and obtain resentencing under Penal Code1 section 1172.6 after an evidentiary hearing. He argues the trial court erred in finding him ineligible for relief on the ground that he was a major participant in an attempted robbery who acted with reckless indifference to human life. (§ 189, subd. (e)(3).) We affirm. BACKGROUND The Charges In 2011, an amended information was filed, charging defendant with murder (§ 187, subd. (a); count 1), accompanied by an allegation that he personally and intentionally discharged a firearm in the commission of the 1 Undesignated statutory references that follow are to the Penal Code.

1 murder (§ 12022.53, subds. (a)–(d)); and attempted robbery (§§ 211, 664; count 2), also accompanied by a personal firearm use allegation (§ 12022.52, subds. (a), (b)). The amended information also alleged defendant had suffered a prior serious or violent felony conviction. (§§ 667, subds. (a)(1), (b), 1170.12, subd. (a).) The Evidence at Trial The Killing Early in the morning of April 30, 2011, Everett Brown was found dead in Vallejo. The prosecution presented, among other evidence, testimony from Omri Williams (Brown’s friend) and Kevin Cooper (defendant’s cousin)2 regarding the circumstances surrounding the attempted robbery and murder. Omri Williams Williams testified that on the evening of April 29, 2011, he, Brown, and their girlfriends were socializing at his house in Vallejo. A few minutes later, Williams went out to talk to him, and Brown said he wanted to stay the night. They drove in Brown’s car to his grandmother’s house to get his clothes. The car was a blue Oldsmobile. Brown and Williams then drove to a Valero gas station to get gas. As Brown got out of the car to pay for the gas, Williams noticed another car parked at the station, a car that had “Rest in Peace Ether” painted on the back window. Two men, later identified as defendant and Cooper, got out of that car, and stood behind Brown at the cashier’s window. After a brief conversation, Brown, along with Cooper and defendant, walked back to the Oldsmobile and got in, with Cooper behind Brown in the driver’s seat and defendant behind Williams in the passenger’s seat. After a 2 Cooper was charged with murder but later pled guilty to voluntary manslaughter.

2 couple of seconds of silence, Williams asked Brown, “What is going on? Who are they?” Brown did not respond, and defendant said they were going around the corner. Williams again asked Brown, “What is going on?”; again, he did not answer. At this point, defendant asked Williams if he had a gun on him, and then pulled out a gun, held it to Williams’s neck, and said he was robbing them: “[I]t’s a jack move and give me everything out your pockets.” Williams said he wasn’t giving him anything, and defendant said, “You don’t think I will kill you?” Defendant told Brown to start the car, and make a left turn out of the parking lot, still holding the gun to Williams’s neck. As they were driving along slowly, Williams told defendant he knew who “Little ‘E’ ” was, the person whose name was spray painted on the back of the car. At that point, defendant said, “Okay. Okay. I’m not going to rob you,” before telling Brown to drop off defendant and Cooper around the corner. Williams did not want to do that and said, “No.” Williams “did not trust” the two men, because Williams “knew the area that they wanted to go in,” “[i]t was real late,” and they just “tried to rob [him]” and “had a gun to [his] neck.” Williams told Brown, “No. I’m not dropping them off. We can let them out right here, or we can both get out and let them have the car . . . .” Brown disagreed and said everything would be all right. As Williams described it, Brown “told me ‘It’s okay. We’re going to drop them off.’ [¶] And I told him, ‘No. I’m not dropping them off. We can let them out right here, or we can both get out and let them have the car, but we’re not dropping them off.’ ” Brown and Williams continued “going back and forth,” “kind of like arguing,” as Brown continued to slowly drive the car. Williams opened the door and put his foot out, and said to Brown: “I’m getting out. I’m not driving down here. You can get out with me.” Brown replied, “No. It’s all right. It’s all right. I’m going to drop them off. They’re just going to go 3 home.” Williams got out and started walking back to the Valero station. He looked back, and saw Brown’s car make a right turn onto Taper Street. Williams called his girlfriend and told her what just happened and to come pick him up. Williams called Brown’s phone about two to three times but there was no answer. Williams then saw police cars speeding down the street towards Taper Street with their lights and sirens on. At that point, his girlfriend arrived to pick him up, and they followed the police cars to Taper Street, where they saw Brown’s body lying in the street surrounded by police cars and an ambulance. Shortly afterwards, Williams went with police officers to the police station where he gave a statement. Kevin Cooper Kevin Cooper, defendant’s first cousin, testified that late in the evening on April 29, 2011, he and defendant went to a house party in Vallejo. After spending a few hours at the party, defendant, Cooper, James Bondoc, and another friend drove in Bondoc’s car to a nearby Valero gas station. The car was a white Pontiac Bonneville, with “RIP Lil’ E” painted on the back window. As they pulled up to the pump, Cooper and defendant exited the car. Cooper recalled that he was wearing a green “Polo” baseball cap and that defendant was wearing a bright turquoise t-shirt. The men walked to the front of the gas station, where they encountered Brown and Williams standing outside of their own car, a blue Oldsmobile. Cooper had never seen either Brown or Williams before. Defendant and Brown had a brief conversation in front of the gas station, but Cooper did not recall what they were talking about. Cooper and defendant then followed Brown to the blue Oldsmobile. Cooper got in the backseat on the driver’s side, while defendant got into the back on the passenger’s side seat. Brown 4 was in the driver’s seat, while Williams was seated in the front passenger’s seat. Brown drove toward “The Crest,” a neighborhood in Vallejo. Defendant ordered Brown to drive them around the corner. Defendant then pulled a gun out of his pocket and told Cooper, “Let’s rob these niggas.” Defendant had shown Cooper the gun earlier when they were at defendant’s apartment. Williams responded that they knew Montrell Austin, the host of the house party on Cynthia Street. Williams and Brown discussed whether they should drop off the two men, and Brown said he would drive around the corner as defendant had instructed. Brown turned right out of the gas station. As he was driving, Williams and Brown got into an argument. Brown stopped the car, and Williams got out and walked away. Defendant moved from the back seat of the car to the front passenger’s seat. As Brown began driving again, defendant put the gun to Brown’s head and pulled the trigger. Cooper was shocked; he did not expect defendant to shoot anyone. Cooper then jumped out of the car and ran, dropping his green “Polo” hat as he fled. Defendant also got out of the car and ran. Cooper saw defendant throw the gun in a garbage can as they ran. After initially fleeing into a nearby backyard, the two men made their way back to the party at Montrell Austin’s house. Eventually Austin drove Cooper and defendant back to defendant’s home. When they returned home, Cooper confronted defendant, angry that he had shot Brown and upset to have been involved in the incident. The Investigation Just before 3:00 a.m. on April 30, 2011, Vallejo Police Officer Steven Cheatham responded to a 911 call reporting shots being fired near the corner 5 of Taper and Janice Streets, which was “right up the street” from the Valero gas station in Vallejo. He saw Brown lying down on the street. He could see a blue Oldsmobile stopped in the middle of the road farther up the street. The engine was still running, the headlights were on, and the passenger’s side door was open. The window on the driver’s side door was shattered. There were bullet holes in the interior of the driver’s side door, near the handle. Officer Cheatham later found a green baseball hat on the street, lying between the car and the victim. The hat had an orange “Polo” logo on it. DNA on the hat was later found to match that of Cooper. Vallejo Police Detective Jason Potts arrived on the scene approximately 4:00 a.m. Detective Potts observed Brown’s body lying in the street with a gunshot wound on his right cheek. Potts observed “stippling” near the wound, meaning the gunshot had been fired at close range. He also observed a gunshot wound on the victim’s back. Forensic examination of the Oldsmobile revealed three bullets in the driver’s side door, one in the door pillar, and two in the interior of the door. A trajectory analysis was able to be conducted on one of the bullet holes, which analysis indicated the bullet was shot from inside the vehicle, specifically from the front toward the backseat at a downward angle. The positioning of the shooter could not be determined, however. A forensic pathologist determined Brown’s cause of death was two gunshots wounds, one to the head and one to the chest. The pathologist opined that the gun was fired at a distance of more than six inches but less than three feet. Police obtained surveillance footage from the Valero gas station. The video showed two cars at the gas station at 2:45 a.m., the blue Oldsmobile later found in the street near the victim, and a silver Pontiac, with “RIP 6 Little Ether” painted on the back window. The video also showed a man matching defendant’s description: he was wearing a turquoise blue shirt in the back passenger’s seat of the Oldsmobile as it drove away from the gas station. He appeared to be leaning forward towards the person in the front passenger’s seat. The video also showed a man wearing a green hat getting into the blue Oldsmobile. The video then depicted the Oldsmobile leaving the gas station at 2:49 a.m. with a person matching defendant’s description in the right rear passenger seat. The police also obtained defendant’s cell phone records. The records showed multiple calls placed between 1:27 a.m. and 3:17 a.m. that were connected through a cell phone tower located about 0.6 miles from the Valero gas station and 0.9 miles away from Taper and Janice Streets. These calls included one placed at 2:59 a.m., which was near the time that police received the 911 call about shots being fired. In the morning of April 30, 2011, Detective Potts showed Williams a photographic lineup. Williams identified defendant as the gunman. The Verdict and the Sentence In 2013, the jury found defendant guilty of first degree felony murder and attempted robbery. The jury found not true the personal firearm use allegation accompanying the murder count. However, it found true the personal firearm use allegation accompanying the attempted robbery. Defendant waived jury trial on the prior conviction allegation, which the trial court found true. The trial court sentenced defendant as follows: on count 1, 25 years to life, doubled pursuant to the Three Strikes law, plus five years for the section 667, subdivision (a)(1) enhancement, for a total of 55 years to life; on count 2, 16 years consecutive.

7 In 2016, we affirmed defendant’s judgment of conviction. (People v. Hall (April 13, 2016, A140033) [nonpub. opn.].) The Petition for Resentencing Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which “significantly narrowed the scope of the felony-murder rule.” (People v. Strong (2022) 13 Cal.5th 698, 703 (Strong).) As amended by Senate Bill 1437, section 189, subdivision (e) now provides that a person may be liable for felony murder pursuant to three theories of liability: (1) “[t]he person was the actual killer” (§ 189, subd. (e)(1)); (2) “[t]he 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” (id., subd. (e)(2)); and (3) “[t]he person was a major participant in the underlying felony and acted with reckless indifference to human life” (id., subd. (e)(3)). “Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended.” (Strong, supra, 13 Cal.5th at p. 708.) Pursuant to section 1172.6, when a petition complies with the statutory requirements, the court assesses whether the petitioner has made “a prima facie case for relief.” (§ 1172.6, subd. (c).) If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then must hold a hearing to determine whether to vacate the conviction and resentence the petitioner. (§ 1172.6, subd. (d)(1).) At the hearing, the prosecution has the burden to prove beyond a reasonable doubt that the petitioner is guilty of murder under the amended murder statutes. (Id., subd. (d)(3).) In 2024, defendant filed a petition for resentencing pursuant to section 1172.6. The trial court found that a prima facie showing of eligibility for 8 relief was made and set the matter for an evidentiary hearing. The parties submitted briefs At the evidentiary hearing on May 5, 2025, the parties relied on the submitted documents and did not present any new testimony or evidence. The court heard argument, after which it denied defendant’s petition.3 In reaching its conclusion, the court first explained that because the jury found not true the personal firearm use enhancement as to the murder count, the court was precluded from finding that defendant was the actual killer. The court, however, found the People proved beyond a reasonable doubt that defendant was guilty of murder under the current law as a major participant in the attempted robbery who acted with reckless indifference to human life. In making that determination, the court conducted a detailed analysis of the factors that our Supreme Court set forth in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). (See Banks, supra, 61 Cal.4th at p. 803 [factors for determining whether a defendant was a major participant in an underlying felony]; Clark, supra, 63 Cal.4th at pp. 618–623 [factors for determining whether a defendant acted with reckless indifference to human life].) In evaluating the Banks factors, the court noted it was defendant who had ordered the victim to drive around the corner and concluded, “it is the defendant who is leading here in terms telling people where to go and taking charge. And that to me shows evidence of planning as well as leadership.” Additionally, the court noted that defendant supplied the weapon and initiated the robbery. Defendant was also the one who threatened to kill the 3 It does not appear that the court expressly issued an order to show cause. However, the proceeding at which it denied the petition was plainly an evidentiary hearing conducted pursuant to section 1172.6, subdivision (d).

9 victim and Williams, stating, “ ‘You don’t think I will kill you?’ ” Also, in assessing whether defendant was in a position to facilitate or prevent the murder, the court found the evidence supported “a reasonable inference that the defendant was present at the scene from beginning to end,” as there was “no evidence that the other has fled.” The court observed that defendant “could have, at some point, put the gun away and says to drop us off for the evening, and that would’ve ended this. But he pulls the gun out and keeps it pointed at Mr. Williams’[s] neck saying, you know, ‘We’re gonna rob you’ or jack you, and making comments ‘You don’t think I’ll kill you,’ I think that can certainly facilitate the ultimate killing here.” Further, the court noted that defendant did not render aid to Brown after he was shot. In analyzing the Clark factors, the court found that, as the person who supplied the gun, defendant would have been aware that a gun would be used during the felony. Also, defendant’s statement, “You don’t think I’ll kill you?,” was “highly probative evidence of knowing what particular dangers are associated with the nature of the crime here, and clear understanding of the dangerousness of the conduct that they’re engaging in.” The court further found, “this was not a rash incident where something’s said and someone pulls a gun out and shoots”; rather, “there was some level of planning and direction here, and the gun was out at Mr. Williams’[s] neck while in the car for, at least, some period of time here.” Additionally, because defendant had control of the weapon for the majority of the interaction, the court noted that “the defendant could have stopped this robbery by putting the gun away and ask[ing] to be dropped off.” He did not. Thus, “there’s nothing to show that the defendant actively tried to prevent or stop what would be the killing here.” The court also noted that although at one point defendant told Williams that he was not going to rob him, he did not get out of the car at 10 that point and end the interaction. Instead, he told Brown to drop them off around the corner. The court found it “noteworthy” that despite defendant’s statements he would not rob them, Williams did not trust defendant and “had significant concern about continuing to go around the corner; ultimately causing him to flee the car.” Based on all of the above, the court concluded the People proved beyond a reasonable doubt that defendant was a major participant in the attempted robbery who acted with reckless indifference to human life. This appeal followed. DISCUSSION The Law As noted above, the felony murder rule was amended by Senate Bill 1437 and currently provides, in section 189, subdivision (e), three theories of liability. We are only concerned with the third theory: “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.” (§ 189, subd. (e)(3).) Through Senate Bill 1437, the Legislature imported the major participant and reckless indifference standards from section 190.2, subdivision (e), which governs the felony-murder special circumstance. (People v. Emanuel (2025) 17 Cal.5th 867, 881 (Emanuel).) “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.” (Emanuel, supra, 17 Cal.5th at p. 882.) In Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, the California Supreme Court “endeavored to elucidate the contours of the major participant and reckless indifference standards” (Emanuel, supra, 17 Cal.5th at p. 882): “Banks elucidated what it means to be a major participant and, to 11 a lesser extent, what it means to act with reckless indifference to human life, while Clark further refined the reckless indifference inquiry.” (Strong, supra, 13 Cal.5th at pp. 706–707.) In Banks, our Supreme Court identified a list of nonexclusive factors to consider in determining whether a defendant acted as a major participant in the underlying felony. (Banks, supra, 61 Cal.4th at p. 803.) These factors are: “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?” (Ibid., fn. omitted.) “No one of these considerations is necessary, nor is any one of them necessarily sufficient.” (Ibid.) As for the reckless indifference component, our Supreme Court has explained, “Reckless indifference to human life is ‘implicit in knowingly engaging in criminal activities known to carry a grave risk of death.’ ” (In re Scoggins (2020) 9 Cal.5th 667, 676.) Reckless indifference to human life encompasses both subjective and objective elements. (Id. at p. 677.) “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], 12 its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation. ” ’ ” (Ibid.) “[A]s in Banks, [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.] Because the major participant and reckless indifference elements often ‘ “significantly overlap” ’ [citation], this list of factors also overlapped with those [the Supreme Court] had identified in connection with the major participation inquiry in Banks.” (Strong, supra, 13 Cal.5th at p. 694, citing Clark, supra, 63 Cal.4th at pp. 618–623.) Like the Banks factors, “ ‘[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient.’ ” (Clark, at p. 618.) “ ‘It is undisputed that when Senate Bill 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.” (Strong, supra, 13 Cal.5th at p. 710.) “We are therefore guided in this case by [the] pronouncements in Banks and Clark . . . .” (Emanuel, supra, 17 Cal.5th at p. 883.) Standard of Review We review for substantial evidence the trial court’s factual findings in its ruling on the resentencing petition. (See People v. Underwood (2024) 99 Cal.App.5th 303, 313–314.) Under the substantial evidence standard, “[w]e ‘ “examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a rational trier 13 of fact in finding [the defendant guilty] beyond a reasonable doubt.” ’ ” (People v. Clements (2022) 75 Cal.App.5th 276, 298.) We presume in support of the judgment or order the existence of every fact the trier of fact could reasonably infer from the evidence. (People v. Edwards (2013) 57 Cal.4th 658, 715.) We do not resolve credibility issues or evidentiary conflicts. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “Where the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment’s reversal.” (Id. at p. 358.) To the extent our review calls for statutory interpretation, that is a question of law we review de novo. (People v. Morris (2026) 19 Cal.5th 671, 682 (Morris).) The Trial Court Properly Denied Defendant’s Petition In his opening brief, defendant asserts two main arguments, the first of which is asserted in the following heading: “There Was Insufficient Evidence to Find Beyond a Reasonable Doubt That [He] Was Guilty of First Degree Felony Murder Under Penal Code Section 189, Subdivision (e)(3).” According to defendant, “The evidence did not establish any causal connection between the attempted robbery of Omri Williams and the death of Everett Brown.” Defendant appears to develop this argument in his reply brief, exemplified by the following: “the validity of [the trial court’s] finding required proof beyond a reasonable doubt that the attempted robbery and the subsequent shooting of Brown were a continuous transaction.” And this: “It bears emphasis that the dispositive question is not whether [he] was a major participant in an attempted robbery who committed that earlier crime with reckless indifference to human life. The dispositive question is whether the attempted robbery and the subsequent fatal shooting were a continuous transaction.

14 [Citation.] A participant in attempted robbery is not guilty of felony-murder unless the felony and the homicide constitute a single, unbroken sequence of events. The evidence in this case did not prove beyond a reasonable doubt that they were.” He argues that “the evidence shows that the attempted robbery had ended by the time Williams left the car.” We reject this argument for several reasons. In the first place, defendant did not raise any argument concerning the purported lack of a “continuous transaction” between the attempted robbery and the killing in the underlying section 1172.6 proceedings. As such, the argument is forfeited. (See People v. Mitchell (2012) 209 Cal.App.4th 1364, 1370 [“a defendant’s failure to present an issue to the trial court’s generally forfeits it on appeal”].) Even if not forfeited, defendant fails to show how his argument falls within the scope of a section 1172.6 inquiry. Section 1172.6 is limited to providing relief only to a defendant who could no longer “be convicted of murder . . . . because of changes to sections 188 and 189 made effective January 1, 2019.” (§ 1172.6, subd. (a)(3), italics added.) The “because of” language of section 1172.6, subdivision (a)(3) requires “that the changes in murder liability arising from Senate Bill 1437 be a basis for the claim” for relief, though those changes need not “be the sole basis.” (People v. Lopez (2026) 19 Cal.5th 639, 663, citing Strong, supra, 13 Cal.5th at p. 712.) “The mere filing of a section [1172.6] petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury’s findings” when the claims are not based at all on the changes made by Senate Bill 1437. (People v. Farfan (2021) 71 Cal.App.5th 942, 947; accord, Strong, supra, 13 Cal.5th at p. 715 [§ 1172.6 does not “permit wholesale relitigation of findings supporting murder 15 convictions” in resentencing proceedings].) Consistent with the applicable law at the time, at defendant’s trial the court instructed the jury that “[i]n order for the People to prove that the defendant is guilty of murder under a theory of felony murder, the People must prove that the attempted robbery and the act causing the death were part of one continuous transaction.” (Former CALCRIM No. 549; see People v. Wilkins (2013) 56 Cal.4th 333, 340 [“ ‘Under the felony-murder rule, . . . what is required is proof beyond a reasonable doubt that the felony and murder were part of one continuous transaction.’ ”].) This was repeated to the jury in other instructions. (Former CALCRIM Nos. 540A and 540B.) Ultimately, the jury found defendant guilty of first degree felony murder. This verdict implies the jury found that the attempted robbery and the act causing death were part of one continuous transaction. Here, defendant seeks to relitigate that factual determination already made by the jury. But he does not explain how the existence of a continuous transaction is made relevant by the changes to sections 188 and 189 made by Senate Bill 1437. In short, defendant’s sufficiency of the evidence claim falls outside the scope of a section 1172.6 inquiry. In any event, the argument fails. In arguing the evidence was insufficient to establish the attempted robbery and killing were part of one continuous transaction, defendant relies on the evidence that during the course of the attempted robbery, Williams brought up the name of a shared acquaintance in an apparent attempt to diffuse the situation, after which defendant said, “I’m not going to rob you,” before then instructing Brown to drop off both him and Cooper around the corner. According to defendant, his “words meant he abandoned any attempt to commit robbery, and that that felony ended before the subsequent events that resulted in the fatal 16 shooting.” However, the jury could reasonably draw a contrary inference from the evidence, and its guilty verdict implies that it did. As Williams testified, he did not trust defendant and there were reasons not to under the circumstances. Williams said he did not trust defendant because defendant had just pulled out a gun on him and tried to rob him; it was late at night; and he “knew the area” that defendant wanted to be taken to. Williams did not trust defendant to the point he urged Brown not to drop defendant and Cooper off, insisted that they instead get out of the car together and just leave the car with the two men, and jumped out of the car while it was still moving when Brown decided to heed defendant’s instructions. Viewing the evidence in the light most favorable to the trial court’s ruling, and resolving all conflicts and drawing all inferences in favor of that ruling, there was substantial evidence from which to conclude that the attempted robbery had not ended when defendant said, “I’m not going to rob you.” Further, as the Attorney General asserts, the evidence supports a reasonable inference that defendant had not reached a temporary place of safety by the time Brown was killed. (See People v. Debose (2014) 59 Cal.4th 177, 205 [“the commission of a robbery [or attempted robbery] is ongoing ‘ “until the robber has won his way to a place of temporary safety.” ’ [Citation.] . . . [A]s long as a robber holds the victim captive, the robber’s safety is ‘continuously in jeopardy’ during the period of captivity if at ‘any unguarded moment, the victim might . . . escape or signal for help.’ ”]; People v. Johnson (1992) 5 Cal.App.4th 552, 559 [“When the robber is still in flight, he or she has not yet achieved a place of temporary safety”]; see also People v. Haynes (1998) 61 Cal.App.4th 1282, 1292 [“ ‘Where . . . the robber is content to remain at the scene and the infliction of great bodily injury is close to the robbery in terms of time or distance, the robbery is not ‘over’ ”].) In this case, 17 when Williams last saw Brown alive, Brown was driving his car with defendant and Cooper in the backseats, evidently following defendant’s order to drop him and Cooper off around the corner. Williams saw Brown make a right on Taper Street. Minutes later, Williams discovered Brown’s body near the intersection of Taper and Janice streets. The 911 caller reported that shots were fired in that area and that the decedent had been pushed out of the car. There was no indication that defendant had fled or disposed of the gun before Brown was killed. Additionally, defendant’s cell phone records placed him in the vicinity of the scene of the shooting near the time that police received the 911 call. Given the totality of these circumstances, the jury could reasonably infer that Brown was with defendant and Cooper, and remained under the control of one or both of them, at the time he was shot; that defendant thus had not reached a temporary place of safety by the time Brown was killed; and that therefore the attempted robbery and lethal shooting were all part of one continuous transaction. We turn to defendant’s second argument, which is that “section 189, subdivision (e)(3) should be construed to require proof that a defendant alleged to be an aider and abettor of first degree felony murder assisted the actual killer in the homicide itself. And in this case there was no such proof.” This argument, too, was not raised in the trial court, as defendant acknowledges. Thus, it is forfeited. (See People v. Mitchell, supra, 209 Cal.App.4th at p. 1370.) Forfeiture aside, defendant’s argument lacks merit. At the time defendant filed his opening brief, and the Attorney General filed the respondent’s brief, there was a split among the Courts of Appeal on whether section 189, subdivision (e)(2) requires proof that a person who is not the actual killer aided or abetted the actual killer in the lethal act itself, and 18 not just the underlying felony. (See Morris, supra, 19 Cal.5th at p. 681 [discussing cases].) As defendant notes in his reply brief, the Supreme Court in Morris, supra, 19 Cal.5th 671, recently resolved that split, holding that “the statutory language . . . mean[s] just what is says: the phrase ‘aided . . . or assisted the actual killer in the commission of murder in the first degree’ [citation], requires proof the defendant aided or abetted the actual killer in the lethal act itself, and not just the underlying felony.” (Morris, at pp. 678, 686, 693.) Citing Morris, defendant argues that like section 189, subdivision (e)(2), section 189, subdivision (e)(3) should be interpreted to also “limit[ ] liability for felony-murder to defendants who aided and abetted the fatal act, and that absent proof that a non-killer defendant did that, he is not guilty of felony-murder simply because he was a major participant who acted with reckless disregard for human life in committing an underlying, non-homicidal felony.” We disagree. The plain language of section 189, subdivision (e)(3), when viewed in context, easily refutes defendant’s argument. “ ‘ “ ‘ “ ‘ “As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature’s intent so as to effectuate the law’s purpose. [Citation.] We begin by examining the statute’s words, giving them a plain and commonsense meaning.” ’ ” ’ ” ’ . . . “ ‘ “We must harmonize “the various parts of a statutory enactment . . . . by considering the particular clause or section in the context of the statutory framework as a whole.” ’ ” ’ [Citation.] ‘ “ ‘If the language is clear, courts must generally follow its plain meaning . . . .’ ” ’ ” (Morris, supra, 19 Cal.5th at pp. 682, 695.) As noted above, the relevant statutory language states: “The person was a major participant in the underlying felony and acted with reckless 19 indifference to human life . . . .” (§ 189, subd. (e)(3), italics added.) The person being “a major participant in the underlying felony” means just that. The commonsense meaning is that the person must be a major participant in the underlying felony, not necessarily the lethal act. This interpretation is reinforced by a reading of section 189, subdivision (e)(3) in context with the remainder of subdivision (e), in particular subdivision (e)(2) concerning aiding and abetting. As noted, section 189, subdivision (e)(2) states in relevant part: “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.” (Italics added.) As defendant acknowledges, this language is in contrast with subdivision (e)(3), which specifies the actus reus is “the underlying felony.” And as Morris explains: “The fact that the Legislature used the phrase ‘underlying felony’ elsewhere in section 189, but did not do so in subdivision (e)(2), shows that the Legislature knows how to use the term ‘underlying felony’ in section 189 when that is the intent. Subdivision (e)(3) provides for felony-murder liability when the defendant ‘was a major participant in the underlying felony and acted with reckless indifference to human life.’ (§ 189, subd. (e)(3); see also id., subd. (e) [‘a felony’].) Thus, the actus reus in subdivision (e)(3) clearly specifies the ‘underlying felony,’ while the language in subdivision (e)(2) merely refers to aiding or abetting ‘the commission of murder in the first degree.’ The use of different phrases signals the Legislature intended to define different acts necessary to prove guilt under each theory. [Citations.] Looking at section 189, subdivision (e) in its entirety, “it is clear the Legislature intended to draw a distinction between assisting first degree murder and assisting the underlying felony.” ’ ” (Morris, at pp. 683–684, fn.

20 omitted.) Accordingly, we conclude that with respect to the actus reus, section 189, subdivision (e)(3) does not require that the defendant be a major participant in the lethal act itself, but rather in the underlying felony. Essentially, defendant’s arguments ask us to depart from the standard for determining liability under section 189, subdivision (e) that has been set forth in Banks and Clark and cases interpreting them. Indeed, nowhere in his briefing does he attempt to analyze the Banks and Clark factors, much less argue that the trial court’s analysis of those factors was incorrect or unsupported by the evidence. Thus, not only has defendant forfeited any claim that the court’s analysis of the Banks and Clark was erroneous (see Foxen v. Carpenter (2016) 6 Cal.App.5th 284, 295; Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115), but he also has effectively conceded the correctness of that analysis. (See Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [party “effectively concedes” issue by failing to address it in brief]; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [parties “impliedly concede” an issue by failing to address it].)4 In any event, we have independently reviewed the record and conclude that substantial evidence supports the trial court’s analysis of the Banks and Clark factors and its ultimate conclusion that the People proved beyond a reasonable doubt that defendant was a major participant in the attempted robbery who acted with reckless indifference to human life. In sum and in short, the trial court properly denied defendant’s petition 4 Indeed, in a footnote in his reply brief, defendant concedes the People’s assertion that substantial evidence supported a finding that he was a major participant in the attempted robbery.

21 for resentencing under section 1172.6. DISPOSITION The order denying defendant’s petition for resentencing is affirmed.

22 RICHMAN, J.

We concur.

STEWART, P. J.

DESAUTELS, J.

(A173450N)