People v. Miller CA1/1

Opinion

Filed 9/29/26 P. v. Miller CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A172900 v. RICHARD MILLER, (Solano County Super. Ct. No. VCR186579) Defendant and Appellant.

Defendant Richard Miller appeals from an order denying his petition for resentencing pursuant to Penal Code section 1172.61 following an evidentiary hearing. He contends the trial court applied an incorrect legal standard and the case should be remanded for a new hearing. We affirm. BACKGROUND This is the third time this case has appeared on appeal following resentencing. In 2008, defendant pleaded no contest to one count of second degree murder (§ 187, subd. (a)) and one count of robbery (§ 211), and the trial court sentenced him to 20 years to life in prison.

All further statutory references are to the Penal Code unless 1 otherwise indicated.

1 Eleven years later, defendant filed a petition for resentencing under now-section 1172.6. After an evidentiary hearing, the trial court determined defendant was ineligible for resentencing because he was a major participant in the crimes and acted with reckless indifference to human life. Defendant appealed, and this court affirmed the trial court’s ruling. (People v. Miller (Jan. 29, 2021, A159345) [nonpub. opn.].) In May 2022, defendant filed another petition for resentencing. This time, the trial court did not appoint counsel and ruled defendant failed to make a prima facie case, stating the petition “ ‘does not cite new legal authority which undermines the basis of the denial of the previous petition.’ ” Defendant appealed, and this court concluded defendant did cite new authority pertaining to the court’s finding that he acted with reckless indifference to human life and remanded for further proceedings. (People v. Miller (Dec. 12, 2023, A166303) [nonpub. opn.].) Upon remand, the trial court held a second evidentiary hearing. After hearing testimony and argument from counsel, the court denied the petition for resentencing. DISCUSSION Testimony at First Evidentiary Hearing “To provide context to the issue before us, we first summarize the evidence adduced during the [first] evidentiary hearing on defendant’s prior resentencing petition. The trial court heard testimony from defendant’s co- perpetrators, one of the perpetrator’s girlfriends, and a police officer who spoke to defendant the day after the shooting. “Robert Thomas testified he, then 18-year-old defendant, and Michael Mackey made a plan to rob Tomas Gonzalez of a pound of marijuana. Two days before the murder, Thomas arranged with Gonzalez to make a purchase.

2 The day before the murder, Thomas contacted defendant, told him about the robbery, and asked him to participate. Defendant agreed. Defendant asked if he should get a gun, and Thomas said he should. “On the day of the crime, Thomas picked up Mackey and defendant, and the three discussed how the robbery would take place. Defendant had obtained a firearm, which Thomas saw. Thomas was in communication with Gonzalez on where to meet. While they were in the car, waiting for Gonzalez, defendant gave the gun to Mackey. Thomas recalled Mackey stating he was ‘ “going to shoot him if anyone moves.” ’ Thomas replied, ‘ “[I]f you shoot him, you going to have to kill him, and it’s going to be over with.” ’ Mackey stated, ‘ “Okay, I’m just gonna to rob—we just gonna to rob him, just gonna to get it and go.” ’ Defendant heard this exchange. Thomas did not think Mackey was ‘serious’ but acknowledged he still ‘felt the need to warn [Mackey] about what would happen if he did in fact shoot Gonzalez.’ “Once Gonzalez and another individual arrived, Thomas, Mackey, and defendant got into the backseat of Gonzalez’s car. The five of them then went to a different spot, about a half a mile away, because ‘there was a concern about law enforcement.’ Once at the new location, Thomas got out of the vehicle and left, leaving Mackey and defendant in the backseat of Gonzalez’s car. “About 10 minutes later, defendant called Thomas for a ride. Defendant told Thomas, ‘ “Mike shot him. Mike shot him,” ’ and then said, ‘ “He didn’t have to shoot him.” ’ When the three returned to the room where they had been staying, Mackey wiped down the gun and the three split the stolen marijuana into thirds. Thomas took defendant back to Richmond. Defendant took the gun with him.

3 “Mackey testified the incident was supposed to be a ‘[s]natch and grab,’ claiming he had the gun just as ‘[k]ind of protection.’ He said they only ‘vaguely’ talked about the robbery, and the gun . . . ‘was supposed to be used for just protection only.’ They ‘had no intention of shooting individuals,’ although he ‘knew it was a possibility.’ He admitted he was ‘supposed to bring’ a gun but did not do so; defendant gave him a gun. He only shot because he thought one of the individuals ‘was reaching for a pistol.’ By that point, defendant had already grabbed the marijuana and run. After the shooting, Mackey ran after and caught up to defendant ‘within seconds.’ Thomas picked them up, and Mackey gave the gun back to defendant. “Thomas’s girlfriend testified she was present when Thomas, Mackey, and defendant ‘were talking about meeting an individual and robbing them.’ She saw defendant with a gun at that time, and she saw defendant give the gun to Mackey. At some point, Thomas, Mackey, and defendant left in her car. Thomas returned first, but got a phone call and left again. When he returned, Mackey and defendant were with him, and they had a ‘large amount’ of marijuana. Thomas and defendant were asking Mackey, ‘ “Why would you do it?” ’ “Former Police Officer Matthew Meredith testified Thomas, Mackey, and defendant were arrested the day after the shooting. Meredith met with defendant, read him his Miranda2 rights, and spoke to him about the shooting. Defendant stated his cousin, Thomas, had contacted him about ‘setting up . . . a lick,’ or a robbery, ‘where they were going to steal the marijuana from the victims.’ Thomas and defendant spoke ‘a couple of times’ but ‘firmed’ up plans ‘the day before it happened.’ Defendant asked Thomas if he should bring a gun, and Thomas said yes and also told defendant 2 Miranda v. Arizona (1966) 384 U.S. 436.

4 Mackey was coming and bringing a gun as well. On the day of the shooting, Thomas and his girlfriend picked up defendant and took him to Vallejo where they met with Mackey at a hotel to ‘go over . . . the plan.’ At that time, defendant learned Mackey did not get a weapon, and he decided to give his gun to Mackey. Defendant was supposed to grab the drugs. Thomas would not be present during the robbery because the victims knew him and would be able to identify him. “As the three drove to the apartment where they were supposed to meet the victims, they ‘clarified more what they were going to do.’ Mackey had the gun and ‘indicated that he might have to shoot the people’ and then he and defendant ‘were going to then run—run through the park.’ Thomas was supposed to leave beforehand, get back to his car, and wait to pick them up. Thomas told Mackey, ‘if he shoots them he’d better kill them.’ “After they met the victims for the supposed purchase, Thomas introduced Mackey and defendant and then left. Mackey and defendant got into the backseat of the victims’ car. The supposed deal was payment of $4,000 for the marijuana, but Mackey only had $30 or $40 on him. Defendant said Mackey ‘had the gun in his hand. It was out, pointed in the direction of one of the victims.’ Because Mackey was in the backseat, defendant ‘didn’t believe [the victims] saw the gun.’ It ‘appeared to [defendant] Mackey was literally trying to pull the trigger, but the . . . safety was on.’ “When Mackey produced the money, a conversation ensued about that ‘not being enough money.’ Defendant then asked for a cigarette and got out of the car to smoke it. ‘[A]s he got out of the car to smoke the cigarette, he knew that Mackey was psyching himself up to shoot them,’ so he got out grabbed the marijuana, and ‘started running.’ As he ran, he heard gunshots, 5 and then Mackey came ‘running up behind him.’ Defendant told Mackey ‘that was not called for,’ and he ‘[h]oped they weren’t dead.’ “Thomas picked them up and took them back to the hotel. Someone wiped the gun down and handed it back to defendant. They divided the marijuana, though defendant complained he ‘didn’t get as large of amount as the other two.’ Thomas gave him a ride back to Richmond with the firearm. Defendant initially told Officer Meredith he threw the gun in a nearby lake. But he later admitted that was untrue and that Mackey had given the gun back to him. “Defendant also told Officer Meredith that Mackey ‘had been hit in the head as a child, and I guess he was more angry than other people.’ Mackey had once gotten mad at defendant and had ‘threatened to fight him and steal his car. And the reason [defendant] was bringing that up was pointing out to me Mackey’s mental state or attitude.’ Defendant maintained the plan ‘was to take the marijuana and run’ and not shoot anyone but for some reason ‘it was in Mr. Mackey’s head to shoot the people’ but he ‘did not know why Mr. Mackey had done that.’ “When defense counsel asked, ‘there was never any plan to shoot?’ Officer Meredith replied, ‘Well, [defendant] never planned to shoot them. He made it clear that he didn’t want them to be shot. But the way he talked about—about Mackey’s state of mind, he felt that Mackey was an issue.’ Defense counsel asked, ‘Well, he’s talking about Mackey’s state of mind when they’re in the victim’s car, right?’ Officer Meredith, responded, ‘Well, he was talking about Mackey’s state of mind then. And he was aware of how angry Mackey was and how he acted towards himself about beating him up and stealing his car. He’s aware of that. And he knows that they are going to steal the—I mean, they’re going to steal the marijuana and not shoot them, 6 yet he gives Mackey the gun, and that’s the guy that he thinks is the most edgy of all of them, I guess.’ “The court concluded defendant was a major participant in the robbery and murder because he was involved in the planning of the crime, and he brought the firearm used to kill the victim. The court further observed ‘[t]he fact that there were going to be two weapons present does indicate [defendant] knew that this could be a very dangerous situation.’ Defendant was also present at the scene, which ‘meant he had the ability to facilitate or prevent the killing.’ “With respect to reckless indifference to human life, the court considered defendant’s knowledge of the presence of the weapon, which he brought to the crime. ‘His proximity to the crime. He was in the vehicle right next to Mr. Mackey when Mr. Mackey first tried to shoot. Then he, I think, grabbed the property, the marijuana. And as he left, Mr. Mackey proceeded to shoot and kill the victim in this case. That means he was in a position to minimize the possibility of violence, but he did nothing other than leaving. That indicated either that he was trying not to be part of it, but could also indicate his indifference to what was going on.’ The court continued, ‘In addition to that, I think there was evidence presented at this hearing that [defendant] knew of Mr. Mackey’s tendency toward violence. He had been threatened by Mr. Mackey himself, the [defendant] had, in the past, [defendant] had. So I considered that as well. [¶] So not only did he bring the weapon to this crime that was eventually used to kill the victim, he gave it to an individual he knew that was violent, and there is some discussion about whether or not someone would have been shot. But it looks to me that [defendant] did act with reckless indifference to human life, in considering all that.’ ” (People v. Miller, supra, A166303.)

7 Testimony at Second Evidentiary Hearing At the second evidentiary hearing, defendant presented testimony from Dr. Francesca Luizza, a clinical and forensic psychologist, who testified as an expert on forensic psychology as well as defendant’s sister. Dr. Luizza testified she reviewed defendant’s records and also met with him twice to administer psychological testing and a risk assessment and to conduct a comprehensive clinical and forensic interview. Defendant identified being abused in his childhood, specifically he recalled being called “mean names and being humiliated by . . . his cousins. And he also identified being physically abused by family members, sexually abused by a family friend,” and “physically and emotionally neglected by his caregivers.” His father was “addicted to drugs and was in and out of prison for most of his life,” and his mother had a “very extensive addiction history.” He witnessed domestic violence between his mother and father and his mother and her boyfriends. His mother engaged in “sex work to provide for her addiction,” and he was left either unsupervised or in the care of his sisters. His cousins introduced him to marijuana at the age of nine or 10. His cousin, and co- perpetrator, Robert Thomas was his “only male role model” and introduced him “to criminal activity and substances.” He stated he “never felt pressured” by Thomas but was “influenced” by him. Dr. Luizza opined adverse childhood experiences “can significantly impact our brain development, specifically on areas of the brain that are essential for emotional regulation, decision-making, and memory and learning.” Additionally, defendant’s age at the time of the crime, 18 years old, related to his decision-making because of “the underdeveloped prefrontal cortex,” which has “an especially active and sensitive reward system, so that also exacerbates [the] likelihood of engaging in risky behaviors.”

8 Defendant’s sister, who is three years older than defendant, described their childhood. After their mother left, the siblings, along with two other sisters, went to live with their father. She described the living conditions as “[h]orrible,” with the electricity and water sometimes being out and a lack of food. The children were often left unattended, and their father, who suffered from a drug addiction, was in and out of prison. When defendant was around three or four, they lived with their grandmother before being returned to their mother’s care. However, their mother also used drugs and alcohol and engaged in prostitution. When defendant was around 10 or 11, the children moved in with their aunt and cousins, including Thomas who was about four years older than defendant. She described defendant as a “follower” rather than a “leader.” After testimony, the court allowed the parties to submit post-hearing briefing. Defendant asserted the evidence showed he was not a major participant acting with reckless indifference, rather it showed he “was acting at all times at the direction of Robert Thomas,” and that he “did not intend for anyone to get shot, and the shooting was not part of the plan.” Additionally, “[h]e procured the gun only to facilitate a robbery, not a murder.” Finally, defendant’s youthfulness—defendant was described as “ ‘young minded, a follower, naïve, immature’ ”—and childhood trauma “undeniably contributed to his mental state and whether he acted with reckless indifference at the time of the offense.” Defendant noted the issue “is not whether defendant could have been found guilty of felony murder, and not whether there is substantial evidence to support a felony murder conviction, but rather, whether the People have proven beyond a reasonable doubt that defendant was in fact guilty of felony 9 murder under the current law.” And here, asserted defendant, the People had not met their burden. At the continued hearing, the court heard argument from counsel. Defense counsel reiterated defendant’s upbringing, his youthfulness, and that his co-perpetrator and older cousin, Robert Thomas, was the “mastermind” behind the incident. Counsel also argued it was “entirely unfair” that Thomas “had a resentencing hearing several years ago, and at that time he was released,” and he had planned the entire thing. Counsel asserted that for “all those reasons,” she did not “believe that [defendant] could be found guilty beyond a reasonable doubt of felony murder under the current law. And again, the burden of proof is on the People. You know, it is not enough to show that he could have been convicted of felony murder, or there was substantial evidence. Rather, the People . . . [¶] . . . have to prove beyond a reasonable doubt that he would not have been convicted of—or I’m sorry— that he would have been subject to a conviction under the felony murder rule.” The People noted the court had previously denied defendant’s petition and “the only thing that is different,” at this current hearing “is that Dr. Luizza testified that sometimes people who are under 25 don’t make good decisions. Well, I’ve reviewed both the argument from counsel and the briefs that were submitted for the first hearing. And the fact that he was youthful, under the influence of Mr. Thomas, 18 years old, was mentioned at least three times. So there’s nothing really new. [¶] . . . [¶] So I think that it is pretty clear that the evidence of what he did was not as simple as he just was involved in a robbery.” Defendant “was the one of the three who knew where to get [a gun]. He’s the one that got the gun. And it was at Mr. Thomas’s suggestion only after a question was asked by [defendant]: Do we need a 10 gun? And Mr. Thomas said: Go get one. [¶] And he was there. He knew of Mr. Mackey’s violent propensities and discussions about I might have to kill him if I shoot him, et cetera. [¶] And maybe the most important fact was he saw—[defendant] saw Mr. Mackey try to fire the gun with the safety on and didn’t say, hey, don’t do it, don’t do it, watch that. So he had the opportunity to prevent this.” Before the court pronounced its ruling, defense counsel reiterated the standard, stating “it is very clear that the burden of proof is on the People” to “establish beyond a reasonable doubt” that defendant “would be convicted of felony murder under the changes to the felony murder rule.” The court began by looking at the 2025 version of the Penal Code, stating, “Subdivision (d)(3) says: At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove beyond a reasonable doubt that the petitioner was guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1st, 2019. [¶] It does specifically say after that: A finding that there is substantial evidence to support a conviction for a murder, attempted murder, or manslaughter insufficient to prove, et cetera. [¶] So it talks about how a lower burden is not sufficient. I am not sure why they threw that in, but they chose to do that. But that is the standard I am following.” The court then noted it had to look at whether defendant was a major participant, and unlike Thomas, defendant was present at the scene when the robbery and the murder happened, which the court found significant as it gave defendant the “opportunity” to “stop whatever might be happening. That goes in this case more into the idea of reckless indifference.” Defendant obtained the gun. Although Mackey was supposed to obtain one too, he did 11 not, and Mackey had a gun because defendant supplied it. Mackey and defendant were both in the car when the robbery occurred. Defendant, as he was leaving the car with the marijuana, observed Mackey trying to fire the gun, and there are shots fired as he flees with the contraband. “So with all of the evidence that I have, including what I have just talked about, I will find that he was a major participant.” As to whether he acted with reckless indifference, the court acknowledged defendant’s age. The court noted the “planning of this robbery,” and the “discussion at one point in [defendant’s] presence,” that Thomas told Mackey, “if you are going to shoot someone, you have to kill them. You need to make sure you kill them.” “[E]ven though [defendant] is younger and less sophisticated, perhaps, than the other two, [he] does manage to be able to produce a gun that is used in this situation. . . . There was evidence that he knew of Mr. Mackey’s propensity for violence. I think at one point he indicated that he had at least been threatened by Mr. Mackey. . . . But he chose to give the gun to him anyways.” Thus, continued the court, “[e]ven considering his youth, he was still able to do something that really raised the level of this crime from just being a robbery to what it ended up being, which was a felony murder.” “[E]ven though the other folks who may have been, as you said, older and more sophisticated, weren’t able to get the gun and bring it. And then when this crime actually happened, he’s there in the car and he is distancing himself from what Mr. Mackey is doing, not doing anything in the case of talk about this to try to stop the violent behavior that occurs. [¶] And even considering his youth, you know, that was his gun, or that was the gun that he brought, and he just didn’t do anything. So I still think that even considering his youth, he was a person who acted with reckless indifference.

12 And I would find based on what was presented at the hearing on this that the People have proven beyond a reasonable doubt that the defendant could have been sentenced under the law as it was amended in 2019. . . .” (Italics added.) Defense counsel interrupted stating, “It is not that he could have been. They have to prove beyond a reasonable doubt that he would be.” The court replied, “Right. That he—I said they proved beyond a reasonable doubt that he could have been convicted of murder under this statute. Okay. That he would have been convicted of murder under that statute. Is that how you would like me to put it?” Defense counsel replied, “Yeah. Not ‘could have been.’ ” The court responded, “Perfect. He was still eligible to be prosecuted and there was sufficient evidence to find beyond a reasonable doubt that he was both a major participant who acted with reckless indifference to human life.” (Italics added.) DISCUSSION Legal Standard of Proof Senate Bill No. 1437 (2017–2018 Reg. Sess.) amended “ ‘ “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 is not the actual killer, did not act with 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).)’ [Citation.] Senate Bill [No.] 1437 did this by amending section 188, which defines malice, and section 189, which defines the degrees of murder. (Stats. 2018, ch. 1015, §§ 2, 3.) Amended section 188 states: ‘Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based 13 solely on his or her participation in a crime.’ (§ 188, subd. (a)(3).) Amended section 189 states: ‘A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: . . . (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life. . . .’ (§ 189, subd. (e).) “Senate Bill [No.] 1437 [(2017–2018 Reg. Sess.)] also established resentencing relief for eligible defendants. [Citations.] Under former section 1170.95 (now § 1172.6, subd. (a)), ‘[a] person convicted of felony murder or murder under the natural and probable consequences theory may file a petition’ with the sentencing court to have his or her murder conviction vacated and to be resentenced on any remaining counts ‘when . . . “. . . the petitioner has made a prima facie case for relief.” ’ [Citations.] If the defendant makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. (§ 1172.6, subds. (c), (d)(3).)” (People v. Didyavong (2023) 90 Cal.App.5th 85, 93–94 (Didyavong).) At an evidentiary hearing to determine whether a petitioner is entitled to relief under section 1172.6, “the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder” under current law. (§ 1172.6, subd. (d)(3).) “To sustain their burden, the People may rely on the record of conviction ‘or offer new or additional evidence.’ ” (People v. Clements (2022) 75 Cal.App.5th 276, 294 (Clements).) “A finding that there is substantial evidence to support the conviction for murder . . . is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3).) The trial court must “act as an independent fact finder and determine, in the first 14 instance, whether the petitioner committed murder under the law as amended by Senate Bill [No.] 1437 [(2017–2018 Reg. Sess.)].” (Didyavong, supra, 90 Cal.App.5th at p. 95; People v. Guiffreda (2023) 87 Cal.App.5th 112, 123.) Defendant contends the court applied an “incorrect legal standard” at the hearing, “concluding that resentencing should be denied because Miller ‘was still eligible to be prosecuted,’ because Miller ‘could have been sentenced’ for murder, and because ‘there was sufficient evidence to find’ reckless indifference to human life.” (Capitalization & boldface omitted.) Specifically, defendant contends the court “facially misstated the standard that was at issue several different ways” and showed “a failure to act as an independent fact-finder and a misapprehension about the issue that needed to be determined.” The Attorney General asserts defendant’s claim of error has been forfeited because he “did not object to the resentencing court’s ruling or otherwise express a belief that the court had applied the wrong standard of proof.” (See People v. Schell (2022) 84 Cal.App.5th 437, 444 [finding forfeiture where claim that “so called ‘canon of constitutional doubt’ precluded trial court from finding guilt of second degree murder” at § 1172.6 resentencing hearing “on theory that was not presented at trial”].) In response, defendant asserts “the most prominent category of claims that may be raised without a predicate objection is exactly the sort of claim [he] raises—i.e., a question of law that affected his substantial rights.” Regardless of any issues of forfeiture, an issue we decline to decide, we conclude defendant has failed to demonstrate the trial court misapplied the standard of proof or misapprehended its role at the hearing.

15 We begin with the premise that “[a]bsent evidence to the contrary, we presume that the trial court knew the law and followed it.” (People v. Ramirez (2021) 10 Cal.5th 983, 1042.) The evidentiary hearing took place years after the Legislature amended section 1172.6 to specify the beyond a reasonable doubt standard and clarified the trial court’s role as an independent finder of fact. Additionally, the court and defense counsel cited this standard. Moreover, we do not read the court’s three comments in the way urged by defendant. That the court stated “the prosecution proved beyond a reasonable doubt defendant could have been sentenced” for murder instead of the prosecution proved beyond a reasonable doubt defendant “would be” guilty appears to have been a misstatement by the court. Indeed, earlier in an exchange between the court and counsel, defense counsel herself stated the burden of proof in the same way now complained of on appeal. Counsel noted the standard was, “Proof beyond a reasonable doubt that he could be found guilty under the current status of the felony murder rule.” Despite any such misstatements, it is clear the parties and the court were aware of the applicable legal standard. Indeed, the court started its ruling by clarifying the standard with counsel. The court subsequently read the burden of proof directly from the statute, stating “Subsection (d)(3) says: At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove beyond a reasonable doubt that the petitioner was guilty of murder. . . .” After the court found the People had proven beyond a reasonable doubt that the defendant “could have been sentenced” under the law, defense counsel immediately corrected the court stating, “not that he could have been. They have to prove beyond a reasonable doubt that he would be.” The court then responded, “Right. . . . I 16 said they proved . . . that he could have been convicted. . . . Okay. That he would have been convicted of murder under the statute. Is that how you would like me to put it?” Defense counsel responded, “Yeah. Not ‘could have been.’ ” People v. Garrison (2021) 73 Cal.App.5th 735 (Garrison), on which defendant relies, does not compel a different result. In that case, the trial court ruled on the defendant’s resentencing petition before the 2022 amendments to section 1172.6, during a period of time when the trial court’s role and the standard of proof were unsettled legal issues. In denying the petition, the trial court stated, “ ‘I also find beyond a reasonable doubt that Mr. Garrison could have been convicted as the actual shooter and actual killer in this felony murder case.’ ” (Garrison, at p. 741.) On appeal, the Attorney General conceded the trial court had applied an incorrect substantial evidence standard. (Id. at p. 745, fn. 6.) However, the appellate court did not expressly accept the concession and instead concluded “[a]ssuming Garrison is correct that the trial court applied the wrong standard of proof at the section 1170.95, subdivision (d)(3) hearing, Garrison cannot demonstrate any prejudicial error.” (Id. at p. 745, italics added.) The Garrison court thus did not decide whether the trial court’s language indicated it applied the incorrect standard of proof. And, in any event, here the trial court’s ruling occurred years after the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) and case law established the proper standard of proof and the trial court’s role in the proceedings. Nor does the court’s statement “there was sufficient evidence to find” reckless indifference to human life demonstrate the court applied a substantial evidence standard of review, as opposed to the required beyond a reasonable doubt standard of proof. The phrase “sufficient evidence” merely 17 describes the quantity or quality of evidence the court determined supported its particular finding or conclusion. Indeed, that phrase can be used by a trier of fact when making a factual finding in the first instance under any standard of proof, or it can be used by a reviewing court when applying a standard of review. Additionally, the court reiterated it was applying a beyond a reasonable doubt standard of proof during its ruling. (People v. Oliver (2023) 90 Cal.App.5th 466, 481, fn. 6 [finding no error in “the court’s passing reference to ‘sufficient evidence,’ ” which court concluded “could only mean that there was ‘enough evidence’ to prove the required facts beyond a reasonable doubt” where court started and ended hearing by indicated burden of proof on prosecution and prosecutor repeated stated reasonable doubt standard applied].) Defendant contends the court’s comments that “it was ‘not sure why’ the [L]egislature ‘threw . . . in’ a prohibition on the use of the substantial evidence standard,” did not “inspire confidence that the court ultimately recognized its burden to act as the fact-finder, or that it understood what the fact was that needed to be proven.” However, the court stated, “So it talks about how a lower burden is not sufficient. I am not sure why they threw that in, but they chose to do that. But that is the standard I am following.” (Italics added.) Thus, the record shows the court was acutely aware of the applicable standard and affirmatively stated it was following that standard. Finally, the record establishes the court was aware of its role as fact finder and that the court independently determined defendant was a major participant who acted with reckless indifference to human life. The court specifically stated it was “the trier of fact” and stated both that “I will find that [defendant] was a major participant,” and “I still think even considering his youth, he was a person who acted with reckless indifference.”

18 Although the court used somewhat inartful or imprecise language in makings its ruling, the entirety of the ruling leaves us convinced the court was aware of the applicable legal standard and understood its role as fact finder. (See, e.g., People v. Price (1992) 4 Cal.App.4th 1272, 1276 [use of inartful language “cannot be equated with having applied the wrong standard”].) Any Error Harmless3 Even assuming the resentencing court applied the wrong standard of proof, any error was harmless. That is, it is not reasonably probable defendant would have received a more favorable outcome had the court applied the correct standard of proof because the evidence establishes, despite defendant’s youth, he was a major participant in the underlying robbery who acted with reckless indifference to human life. (People v. Vance (2023) 94 Cal.App.5th 706, 716–717 [court’s use of wrong evidentiary standard in § 1172.6 hearing evaluated for harmless error under “state law ‘reasonably probable’ standard]; Garrison, supra, 73 Cal.App.5th at p. 745 [“[a]ssuming [defendant] is correct that the trial court applied the wrong standard of proof at the [former] section 1170.95, subdivision (d)(3) hearing, [defendant] cannot demonstrate prejudicial error”].)

3 We review a trial court’s factual findings following a section 1172.6, subdivision (d) hearing for substantial evidence. (Clements, supra, 75 Cal.App.5th at p. 298; Garrison, supra, 73 Cal.App.5th at p. 747.) We “ ‘ “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 of fact in finding [the defendant guilty] beyond a reasonable doubt.” ’ ” (Clements, at p. 298; ibid. [on appeal, “our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder’s findings beyond a reasonable doubt”].)

19 In People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 (Clark), our Supreme Court discussed several factors to consider in determining whether a defendant was a major participant in the underlying felony who acted with reckless indifference to human life. (Banks, at p. 803 [discussing major participant factors]; Clark, at pp. 618–623 [discussing reckless indifference factors].) In Clark, the court discussed the following reckless indifference factors: (1) the defendant’s awareness that a gun or other weapon would be used during the target offense; (2) the defendant’s presence at the crime and whether he had an opportunity to prevent the crime or aid the victims; (3) the duration of the felony, including how long the defendant and the victim interacted before the killing; and (4) the defendant’s apparent efforts to reduce the risk of violence during the commission of the target offense. (Clark, supra, 63 Cal.4th at pp. 618–623.)4 Here, defendant was aware a gun was likely to be used during the robbery. Though defendant contends Mackey promised he would not shoot, Mackey himself testified he “ ‘knew it was a possibility’ ” that he would shoot. Additionally, Mackey and Thomas discussed shooting the victims. And Thomas felt it necessary to warn Mackey, “ ‘ “If you shoot him, you going to have to kill him, and it’s going to be over with.” ’ ” Defendant also told police, the plan was to take $4,000 worth marijuana and run and not shoot anyone but for some reason “ ‘it was in Mr. Mackey’s head to shoot the people’ ” but he did not know why Mr. Mackey had done that.” Defendant also supplied the firearm for the murder. When defendant discussed the crime with Thomas, it was he and not Thomas who suggested 4 Defendant does not challenge the court’s finding that he was a major participant in the underlying felony.

20 getting a gun. Defendant carried through with procuring a firearm, despite thinking Mackey was also getting a gun. After obtaining the weapon, he gave it to Mackey, a man who defendant described as having been “hit in the head as a child, and I guess he was more angry than other people.” Mackey had once gotten angry at defendant and had “threatened to fight him and steal his car.” While the crime seems to have happened over a relatively short period of time, defendant was present at the crime and had the opportunity to reduce the risk of violence and aid the victim but failed to do either. Defendant sat in the back seat of the victim’s car and watched as Mackey pointed the gun in the direction of one of the victims and it appeared to defendant as if Mackey “was literally trying to pull the trigger, but the . . . safety was on.” Defendant did not intervene, instead he got out of the car, despite thinking “ ‘Mackey was psyching himself up to shoot them.’ ” As he grabbed the marijuana and ran, defendant heard gunshots but did not stop to aid the victims or call for help, instead he told Mackey “ ‘that was not called for,’ ” and he “ ‘[h]oped they weren’t dead.’ ” Nothing in the record suggests defendant tried to deescalate the violence or help the victims in any way. In short, the trial court’s finding that defendant acted with reckless indifference to human life was amply supported by the evidence. On such a record, we hold any error was harmless because it is not reasonably probable that absent the error defendant would have achieved a more favorable result. (People v. Vance, supra, 94 Cal.App.5th at pp. 716–717.) DISPOSITION The trial court’s order is affirmed.

21 _________________________ Banke, J.

We concur:

_________________________ Humes, P. J.

_________________________ Smiley, J.

A172900, People v. Miller