In re Richardson CA1/5 ( 2022 )

Filed 4/27/22 In re Richardson CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FIVE
In re EUGENE RICHARDSON A162474
on Habeas Corpus.
(Alameda County
Super. Ct. No. C164916)
This case is before us following the California Supreme Court’s order to
show cause before this court why petitioner is not entitled to relief on his writ
of habeas corpus. Petitioner claims his counsel rendered ineffective
assistance by failing to argue that petitioner’s youth at the time of the offense
should be one of the factors considered during the hearing under Penal Code
section 1170.951 to determine if he was eligible for resentencing.
The People filed a return, and petitioner filed a traverse and lodged
exhibits. Pursuant to our request, the parties submitted supplemental
briefing regarding the propriety of consideration of exhibits submitted with
the traverse.
We grant the petition and remand for a new hearing under section
1170.95 where the trial court shall consider petitioner’s youth at the time of
1 All statutory references are to the Penal Code unless otherwise
stated.
1
the offense as one of the factors in determining whether petitioner acted with
reckless indifference to human life.
FACTUAL AND PROCEDURAL BACKGROUND
I. Trial, Verdict, and Sentence
We incorporate the facts from our prior opinion in petitioner’s direct
appeal (People v. Richardson (June 4, 2013, A134783) [nonpub. opn.] pp. 2–3
(Richardson I)), which stated as follows:
“On the evening of October 15, 2009, Wayl Al Junaidi’s mother gave
him $20 and sent him to buy milk at a [store] near their residence. When he
left home, he had a brown trifold wallet and a diamond ring. Later that
evening, a police officer . . . discovered the wounded Al Junaidi in a parking
lot . . . in Oakland. Al Junaidi later died at [a hospital], and a forensic
pathologist testified that the cause of death was a gunshot wound. No
money, wallet, or jewelry were [sic] recovered from the location at which the
victim was found.
“At trial, [R.C.] testified that on the night of October 15, 2009, he was
cleaning up in the parking lot when he saw a red van pull up. Three men got
out of the van and ran past him. [R.C.] saw the victim walking along Foothill
Boulevard and then heard a loud pop. He saw the victim fall, and then the
three men ran back to the red van. One man carried a silver pistol about six
to eight inches in length. The red van then drove away. [R.C.] approached
the victim, who was bloody but still alive. The entire incident lasted only
three to five minutes.
“[R.C.] later repeated his story to a police investigator. He told the
investigator he saw three men come out of a red van . . . and walk past him as
he was cleaning up the parking lot. [R.C.] identified Richardson and another
suspect from photo lineups. [R.C.] had identified the same two suspects at
2
the preliminary examination. He said Richardson stood over the victim and
was carrying the gun when the men returned to the van.
“[M.A.’s] bedroom window looked out over the parking lot. She was
home on October 15, 2009[,] before 11:00 p.m., and when she looked out at
her car in the parking lot, she saw the tops of three men’s heads. She heard a
loud bang and looked out the window again. [M.A.] saw one man running
away toward the red van, one man standing by a dumpster, and a third man
struggling and arguing with the victim. The man struggling with the victim
was trying to ‘put his hands into the victim’s sides’ and ‘was putting his hand
in one area and another as if he were looking for something[.]’ The man was
bent over the victim, and it looked as though he was trying to take something
from him. The man with the victim wore dark pants and a dark jacket and
had shoulder-length braids. After about a minute the man with the victim
and the man near the dumpster ran to the red van where the third man had
the engine running. [M.A.] saw the victim take a step and then fall to the
ground.
“[M.A.] later identified Richardson as the man struggling with the
victim. At trial she remembered his face although his hairstyle was different
from the braids he had worn on the night of the murder. Her identification
was based on Richardson’s face, which she had seen clearly when he passed
by her window.
“[S.R.] testified she knew Richardson for about two months because he
was dating her sister. She could not identify Richardson in court, but she
had identified him earlier from a police photograph. [S.R.] said Richardson
had showed her a large man’s ring with multiple diamonds on it and had
asked her opinion about its value. He told [S.R.] he had gotten the ring in a
robbery when he killed ‘an Arabian boy.’ ”
3
The jury found Richardson guilty of first degree felony murder (§ 187,
subd. (a); former § 189) and found true the allegation that he personally used
a firearm (§ 12022.53, subd. (b)). It found not true the allegations that he
“ ‘personally and intentionally discharged a firearm and caused great bodily
injury or death to [Al Junaidi]’ ” and that he “personally and intentionally
discharged a firearm” (§ 12022.53, subds. (c), (d)). The trial court sentenced
Richardson to 25 years to life for murder and to a consecutive 10-year term
for the firearm use enhancement. In June 2013, we affirmed the judgment.
(Richardson I, supra, A134783, at pp. 1, 4–5, 16.)
II. Section 1170.95 Petition and Appeal from Denial of Petition
In January 2019, Richardson filed a petition for writ of habeas corpus,
citing section 1170.95, which the trial court treated as a petition for
resentencing. Petitioner argued he could not be convicted of felony murder
under current law and was entitled to resentencing under section 1170.95.
The trial court found petitioner made a prima facie showing he was entitled
to relief under section 1170.95. The People’s written response attached our
decision in Richardson I and argued that Richardson was a major participant
in the robbery and acted with reckless indifference to human life. The People
focused on the facts that petitioner was armed with a gun and actively robbed
the victim after the victim had been shot and never sought aid for the victim.
The People’s response also argued that Richardson, who was the only person
observed with a gun, was likely the actual killer.
Richardson’s counsel filed a brief in support of resentencing in which he
relied upon the witness testimony of M.A., R.C., and S.R. He argued that the
jury’s not true findings on the two allegations of intentional discharge of a
firearm (§ 12022.53, subds. (c), (d)) established that he was not the actual
killer. He further argued that under the standards outlined in People v.
4
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th
522 (Clark), the People cannot prove beyond a reasonable doubt that
Richardson acted with reckless indifference to human life.
In advance of the evidentiary hearing, the People filed a memorandum
arguing that the evidence in the trial record established beyond a reasonable
doubt that Richardson was the actual killer and/or that he acted with
reckless indifference to human life as a major participant in the robbery. The
People asked the trial court to review the trial testimony of R.C., M.A., S.R.,
Sergeant Tony Jones and Detective Jason Andersen.
At the hearing, the People argued Richardson was ineligible for
resentencing because the trial record evidence established Richardson was
the actual killer despite the not true findings on the section 12022.53,
subdivisions (c) and (d) allegations. In support of this argument, the People
pointed to evidence that Richardson was the only person seen with a gun and
to S.R.’s testimony that Richardson admitted to her that he was the shooter.
The People also argued the evidence supported a finding that Richardson was
a major participant who acted with reckless indifference to human life.
Richardson’s counsel responded that there was insufficient evidence to find
Richardson was the actual killer because of the jury’s not true findings on the
intentional discharge allegations and that Richardson’s comment to S.R. may
have been “a 16-year-old bragging . . . .” He further argued that Richardson’s
acquittal on the allegations that he intentionally discharged a firearm
established that the jury did not believe S.R. Richardson’s counsel conceded
that Richardson was a major participant in the robbery, but he argued that
the facts did not support a finding of reckless indifference to human life.
Other than counsel’s comment that Richardson’s statement to S.R. may have
been “a 16-year-old bragging,” counsel did not reference Richardson’s age.
5
Nor did he offer any evidence or argument as to how Richardson’s youth
impacted the determination of whether he acted with reckless indifference to
human life.
The trial court stated it read the testimony of M.A., R.C., and S.R., and
portions of the testimony of Sergeant Jones and Detective Andersen. The
trial court found that the facts supported a verdict beyond a reasonable doubt
that Richardson was the actual killer. In addition, it noted that the parties
agreed Richardson was a major participant in the robbery, then found that
the evidence also proved Richardson demonstrated reckless indifference to
human life.2 However, the record is silent as to whether the trial court
considered Richardson’s age as a factor. The trial court concluded that “the
prosecution has proved beyond a reasonable doubt under one theory or the
other that Mr. Richardson is ineligible under this statute for resentencing,”
and it denied the petition.
Richardson appealed from the denial of his petition, and we affirmed
the trial court’s decision on the grounds that the trial court correctly found
Richardson to be a major participant in the felony who acted with reckless
indifference to human life. (People v. Richardson (May 12, 2021, A159828)
[nonpub. opn.] pp. 1–2, 15 (Richardson II).) One of the issues raised in
Richardson II was that the trial court should have considered Richardson’s
age at the time of the crime in determining whether he acted with reckless
indifference to human life. Our decision found that Richardson forfeited this
2 Specifically, the trial court referenced the following factors: “He is
present. He is there with a gun. He is involved with planning activity with
the robbery. He is the person who makes off with the loss. He is the person
who immediately has the ability to seek help for the person who has been
shot, but instead he continues to fight that person and struggle with that
person and go through that person’s pockets, allowing that person to go down
to the ground and die, essentially.”
6
claim by failing to raise the issue of his age in the trial court. (Richardson II,
supra, A159828, at p. 13.)
III. Habeas Corpus Petition
While the appeal in Richardson II was pending, Richardson filed a
petition for a writ of habeas corpus arguing that his counsel rendered
ineffective assistance regarding his section 1170.95 petition. Among other
claims, Richardson asserted his counsel “failed to raise the fact petitioner was
only 16 years old and should not be held to the same standard of ‘reckless
indifference’ as a fully mature adult offender . . . .” We issued an order
summarily denying Richardson’s petition.
On July 12, 2021, Richardson filed a petition for writ of habeas corpus
in the California Supreme Court asserting the same arguments as in his
earlier habeas corpus petition filed with this court. The California Supreme
Court issued an order to show cause stating: “The Secretary of the
Department of Corrections and Rehabilitation is ordered to show cause before
the Court of Appeal, First Appellate District, Division Five, when the matter
is placed on calendar, why petitioner is not entitled to relief based on his
claim that trial counsel rendered ineffective assistance by failing to argue
that petitioner’s youth at the time of the offense should be one of the factors
considered during the resentencing hearing under Penal Code section
1170.95, when determining whether petitioner was a major participant in the
robbery who acted with reckless indifference to human life. (People v. Banks
(2015) 61 Cal.4th 788; People v. Clark (2016) 63 Cal.4th 522; In re Scoggins
(2020) 9 Cal.5th 667.)”3
Richardson also filed a petition for review of our decision in
3
Richardson II affirming the trial court’s denial of his resentencing petition.
The California Supreme Court denied review of our decision in Richardson II.
7
DISCUSSION
The Supreme Court’s order to show cause limits the issue for our
consideration to whether Richardson’s counsel rendered ineffective assistance
by failing to argue during the section 1170.95 hearing that Richardson’s
youth should be considered in determining whether he acted with reckless
indifference to human life.4 In order to prevail, Richardson must establish
that his counsel’s performance was deficient and that the deficient
performance was prejudicial, meaning that there is a reasonable probability
that but for counsel’s failings the result would have been more favorable to
Richardson. (People v. Rices (2017) 4 Cal.5th 49, 80.)
To provide context for our decision as to whether Richardson’s counsel
rendered ineffective assistance during the section 1170.95 hearing, we first
explain the legislative changes regarding felony murder and the procedures
for resentencing eligibility. Then we address recent case law regarding the
impact of youth in determining whether a defendant acted with reckless
indifference to human life.
I. Senate Bill No. 1437
“Under the felony-murder rule as it existed prior to Senate Bill 1437, a
defendant who intended to commit a specified felony could be convicted of
murder for a killing during a felony . . . without further examination of his or
her mental state.” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247–
248.) Senate Bill No. 1437, which became effective on January 1, 2019,
restricted the application of the felony murder rule by amending sections 188
4 The parties agreed in the trial court that Richardson was a major
participant in the robbery, and Richardson does not argue otherwise in his
habeas corpus petition. Accordingly, only the “reckless indifference to human
life” prong of section 189, subdivision (e)(3)’s requirement for felony murder is
at issue here. (§ 189, subd. (e)(3).)
8
and 189. (Lamoureux, at pp. 248–249.) “Section 189, subdivision (e), as
amended, provides that a participant in a specified felony is liable for murder
for a death during the commission of the offense only if one of the following is
proven: ‘(1) The person was the actual killer. [¶] (2) The person . . . , with the
intent to kill, aided, abetted . . . , or assisted the actual killer . . . . [¶] (3) The
person was a major participant in the underlying felony and acted with
reckless indifference to human life . . . .’ ” (Id. at p. 248.)
Section 1170.95 provides a procedure for offenders previously convicted
of felony murder to obtain the benefits of the changes to sections 188 and 189,
retroactively. (§ 1170.95; People v. Bascomb (2020) 55 Cal.App.5th 1077,
1086.) A petitioner must first make a prima facie showing that: (1) the
prosecutor proceeded under a felony-murder theory; (2) the petitioner was
convicted of first degree murder; and (3) the petitioner could not be convicted
of first degree murder under current law because of changes to section 188 or
189. (§ 1170.95, subd. (a)(1)–(3).) If a petitioner meets this prima facie
threshold, then the trial court holds a hearing to determine whether to vacate
the murder conviction and to recall the sentence. (§ 1170.95, subd. (d)(1).)
The prosecution bears the burden to prove beyond a reasonable doubt that
the petitioner is guilty of murder under amended section 188 or 189.
(§ 1170.95, subd. (d)(3).)5
II. Youth at the time of the offense is a factor to be considered in
deciding whether a defendant acted with reckless indifference to
human life.
As discussed in Richardson II, supra, A159828, at page 2, California
Supreme Court authority has defined “reckless indifference to human life” as
5 Senate Bill No. 775 (2021–2022 Reg. Sess.) further amended section
1170.95 and took effect on January 1, 2022. None of those amendments
affect our decision.
9
having “a subjective and an objective element. [Citation.] As to the
subjective element, ‘[t]he defendant must be aware of and willingly involved
in the violent manner in which the particular offense is committed,’ and he or
she must consciously disregard ‘the significant risk of death his or her actions
create.’ [Citations.] As to the objective element, ‘ “[t]he risk [of death] must
be of such a nature and degree that, considering the nature and purpose of
the actor’s conduct and the circumstances known to him [or her], its
disregard involves a gross deviation from the standard of conduct that a law-
abiding person would observe in the actor’s situation.” ’ [Citation.]
‘Awareness of no more than the foreseeable risk of death inherent in any
[violent felony] is insufficient’ to establish reckless indifference to human life;
‘only knowingly creating a “grave risk of death” ’ satisfies the statutory
requirement. [Citation.] Notably, ‘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.” (In re Scoggins (2020) 9
Cal.5th 667, 677 (Scoggins).)
Whether a defendant acted with reckless indifference to human life
depends upon the totality of the circumstances. (Scoggins, supra, 9 Cal.5th
at p. 677.) “Relevant factors include: Did the defendant use or know that a
gun would be used during the felony? How many weapons were ultimately
used? Was the defendant physically present at the crime? Did he or she
have the opportunity to restrain the crime or aid the victim? What was the
duration of the interaction between the perpetrators of the felony and the
victims? What was the defendant’s knowledge of his or her confederate’s
propensity for violence or likelihood of using lethal force? What efforts did
the defendant make to minimize the risks of violence during the felony?
10
[Citation.] ‘ “[N]o one of these considerations is necessary, nor is any one of
them necessarily sufficient.” ’ [Citation.]” (Ibid.)
Youth is not a factor explicitly mentioned in the Scoggins decision, or in
Banks or Clark, on which Scoggins relies. (Scoggins, supra, 9 Cal.5th at pp.
667–678; Banks, supra, 61 Cal.4th at p. 803; Clark, supra, 63 Cal.4th at pp.
618–623.) However, several recent Court of Appeal decisions have addressed
this issue. In re Moore (2021) 68 Cal.App.5th 434 (Moore), which involved a
defendant who was 16 years old at the time of the offense, held that “a
defendant’s youth is a relevant factor in determining whether the defendant
acted with reckless indifference to human life” and reasoned that “the
‘hallmark features’ of youth—‘among them, immaturity, impetuosity, and
failure to appreciate risks and consequences’—are arguably more germane to
a juvenile’s mental state than to his or her conduct. [Citation.]” (Id. at p.
454.)
In People v. Harris (2021) 60 Cal.App.5th 939, review granted April 28,
2021, S267802, the court reversed the trial court’s denial of a section 1170.95
petition without issuing an order to show cause and remanded with
directions to the trial court to issue an order to show cause. (Harris, at p.
945.) In discussing the application of the Banks and Clark factors, the court
stated that “given Harris’s youth at the time of the crime [age 17],
particularly in light of subsequent case law’s recognition of the science
relating to adolescent brain development (see, e.g., Graham v. Florida (2010)
560 U.S. 48 [citations]; Miller v. Alabama (2012) 567 U.S. 460 [citations];
People v. Gutierrez (2014) 58 Cal.4th 1354 [citations]), it is far from clear that
Harris was actually aware ‘of particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of other participants.’ ”
(Harris, supra, 60 Cal.App.5th at p. 960.)
11
People v. Ramirez (2021) 71 Cal.App.5th 970 reversed the denial of a
section 1170.95 petition after an evidentiary hearing and found that the
defendant’s youth (age 15) at the time of the carjacking was a significant
factor to be considered in determining whether he acted with reckless
indifference to human life. (Ramirez, at p. 990.) “A juvenile’s immaturity
and failure to appreciate the risks and consequences of his or her actions bear
directly on the question whether the juvenile is subjectively ‘ “aware of and
willingly involved in the violent manner in which the particular offense is
committed” ’ and has ‘consciously disregard[ed] “the significant risk of death
his or her actions create.” ’ [Citations.]” (Id. at p. 991.)
We agree with the Moore, Harris, and Ramirez decisions insofar as they
find that a defendant’s age is a relevant factor to consider in determining
whether a defendant acted with reckless indifference to human life.
However, as the California Supreme Court has stated, in making such a
determination, a court must consider the totality of the circumstances and no
one factor is controlling. (Scoggins, supra, 9 Cal.5th at p. 677.) Thus, a
defendant’s age should be considered, along with the multiple other factors
discussed in Scoggins, as part of the totality of the circumstances used to
determine whether a defendant acted with reckless indifference to human
life. (Ibid.)6
In re Harper (Mar. 17, 2022, E076045) ___ Cal.App.5th ___ [p. 26]
6
(Harper) reads Moore to mean that youth is the “decisive” factor in
determining whether a defendant acted with reckless indifference to human
life. We disagree that Moore should be read so broadly. Moore analyzed the
various Clark factors and found that many suggested Moore did not act with
reckless indifference to human life. (Moore, supra, 68 Cal.App.5th at pp.
451–453.) It further specifically stated that “youth is a relevant factor” and
then concluded that under the totality of the circumstances of the case,
including the defendant’s youth, a rational trier of fact could not find that
12
III. Richardson received ineffective assistance of counsel.
To prevail on his claim of ineffective assistance of counsel, Richardson
must demonstrate that his counsel’s performance was deficient because it fell
below an objective standard of reasonableness and that his counsel’s
deficiencies resulted in prejudice. (People v. Rices, supra, 4 Cal.5th at p. 80.)
To establish prejudice, Richardson must show a “ ‘ “reasonable probability
that, but for counsel’s failings, the result would have been more favorable to
the defendant.” ’ ” (Ibid.)
A. Deficient Performance
The People do not dispute that Richardson’s counsel’s performance was
deficient because he failed to argue Richardson’s youth is a factor to be
considered in determining whether he acted with reckless indifference to
human life. Instead, the People contend Richardson was not prejudiced by
his counsel’s failure to assert youth as a factor. Richardson’s petition
includes a declaration from his counsel stating that he had no tactical reason
for not raising the issue of the effect of youthful cognitive immaturity on the
determination of reckless indifference to human life. As discussed ante, and
as the People appear to concede, youth is a relevant factor to be considered as
part of the totality of the circumstances in determining whether a defendant
acted with reckless indifference to human life.
The record before the trial court at the evidentiary hearing on the
section 1170.95 petition included several references to petitioner’s age at the
time of the crime. The section 1170.95 petition states, as one of the facts
supporting the petition, that Richardson “was 16 when the crime was
committed.” The section 1170.95 petition also refers to the direct appeal in
Moore acted with reckless indifference to human life. (Moore, at pp. 454–
455.)
13
Richardson I as involving issues of “[i]nability of a minor to form the
requisite intent.” The trial court also stated it had reviewed portions of the
testimony of Detective Andersen, who testified that Richardson was 16 years
old at the time of the crime. Further, during argument on the section
1170.95 petition, defense counsel noted that Richardson’s statement to S.R.
regarding the robbery may have been “a 16-year-old bragging to [S.R.].”
However, counsel did not argue either in his written submission or
during the evidentiary hearing that the resentencing court must consider
Richardson’s youth in determining whether he acted with reckless
indifference to human life. The mere reference to Richardson’s age in his
petition and in counsel’s comment regarding “a 16-year-old bragging” are not
equivalent to a reasoned argument regarding the possible impact of
Richardson’s youth on the issues before the resentencing court. (See People v.
Guerrero (Mar. 14, 2022, B311548) ___ Cal.App.5th ___ [pp. 10–12] [finding
trial court failed to consider youth-related mitigating factors under §§ 190.3
& 190.5 despite trial court’s singular statement on record that defendant was
16].)
We acknowledge counsel’s statement in his declaration that at the time
of the resentencing hearing there was no appellate case law discussing the
effect of youth on a finding of reckless indifference to human life. However,
the science relating to adolescent brain development and the concept that a
defendant’s age should be considered in sentencing decisions is not new.
(See, e.g., Miller v. Alabama (2012) 567 U.S. 460, 470–473, 477–480; Graham
v. Florida (2010) 560 U.S. 48, 68; People v. Gutierrez (2014) 58 Cal.4th 1354,
1388–1390.) Given the body of law holding that youth matters in sentencing
decisions, it follows that youth is a relevant factor in determining a
defendant’s eligibility for resentencing under section 1170.95. We find that
14
Richardson’s counsel’s performance at the section 1170.95 hearing was
deficient based on his failure to raise Richardson’s youth as a factor to be
considered in determining whether he acted with reckless indifference to
human life.
B. Prejudice
Next, we consider whether Richardson was prejudiced by his counsel’s
deficiencies. That is, whether there is a “ ‘ “reasonable probability that, but
for counsel’s failings, the result would have been more favorable to the
defendant.” ’ ” (People v. Rices, supra, 4 Cal.5th at p. 80.)
1. The People’s “No Prejudice” Arguments
The People offer two arguments in support of their position that
Richardson was not prejudiced by his counsel’s failure to argue youth factors
during the section 1170.95 hearing. First, they argue Richardson was not
prejudiced based on our decision in Richardson II, which deemed forfeited
Richardson’s argument that the resentencing court should have considered
Richardson’s youth. (Richardson II, supra, A159828, at p. 13.) Richardson
asserts our prior decision then “analyze[d] the effect of petitioner’s age on the
resentencing court’s finding.” (See Richardson II, at p. 13.) Richardson II
inferred that the judge at the section 1170.95 hearing was aware of
Richardson’s age based on references in the record. (Richardson II, at p. 15.)
We stated that given the numerous other factors supporting the trial court’s
reckless indifference to human life finding, even if the trial court had more
explicitly addressed Richardson’s age, this factor would not have tipped the
scales in Richardson’s favor. (Ibid.)
Second, the People contend that Richardson was not prejudiced because
the trial court found beyond a reasonable doubt that Richardson was the
actual killer. Under sections 189, subdivision (e) and 1170.95,
15
subdivision (d)(1), a defendant who is the actual killer is not eligible for
resentencing. Accordingly, the People assert that the trial court’s actual
killer finding provides a separate, independent basis for its denial of the
section 1170.95 petition and, therefore, Richardson was not prejudiced by his
counsel’s failure to rely on youth as a factor to show he did not act with
reckless indifference to human life.
We find the People’s arguments unpersuasive given the Supreme
Court’s order to show cause, which specifically instructs us to determine “why
petitioner is not entitled to relief based on his claim that trial counsel
rendered ineffective assistance by failing to argue that petitioner’s youth at
the time of the offense should be one of the factors considered during the
resentencing hearing under Penal Code section 1170.95 . . . .” (Italics added.)
“ ‘Issuance of an OSC . . . indicates the issuing court’s preliminary
assessment that petitioner would be entitled to relief if his factual allegations
are proved.’ ” (People v. Duvall (1995) 9 Cal.4th 464, 475.) By issuing the
order to show cause, the Supreme Court determined petitioner made a
prima facie case for relief. (Ibid.) At the very least, the Supreme Court’s
issuance of the order to show cause requires that we reconsider our statement
in Richardson II that further consideration of Richardson’s youth would not
have altered the trial court’s determination that he acted with reckless
indifference to human life.
Further, the petition filed with the Supreme Court attached our
decision in Richardson II, which includes in the procedural background that
(1) the jury did not find that Richardson intentionally discharged a firearm
(§ 12022.53, subds. (c), (d)) but did find he used a firearm (§ 12022.53, subd.
(b)) and (2) the trial court’s denial of the section 1170.95 petition was based
on both its finding that Richardson was the actual killer and its finding that
16
he was a major participant in the robbery and acted with reckless
indifference to human life. Thus, the Supreme Court was aware of the
potentially inconsistent findings by the jury and the trial court at the section
1170.95 hearing regarding whether Richardson was the actual killer.
However, the Supreme Court’s order focuses solely on the impact of youth
factors on the major participant/reckless indifference findings. We infer that
the Supreme Court questioned the validity of the trial court’s actual killer
finding on this record. It instructed us to focus only on the youth issue as it
impacts the finding of reckless indifference to human life. We shall do as
instructed.
2. Impact of Youth Factors on Finding of Reckless Indifference
to Human Life
The habeas corpus petition argues defense counsel should have
presented evidence of petitioner’s “ ‘immaturity, vulnerability and lack of true
depravity’ ” at age 16, by showing petitioner had no history of violence before
the offense and no violence since he has been incarcerated. It further states
that it “appears [petitioner was] the only juvenile involved in this crime” and
suggests that defense counsel should have brought this to the trial court’s
attention. According to the habeas corpus petition, Richardson’s codefendant,
Davon Young, was an adult offender who pleaded no contest to robbery with
an enhancement for committing the offense while on bail.7 The
habeas corpus petition further asserts, “The brother of [S.R.], who owned and
likely drove the van that was seen to be involved in this robbery, was also an
adult.” The supporting evidence cited in the habeas corpus petition does not
state who owned or drove the van at the time of the crime, or that S.R.’s
7We grant petitioner’s request that we take judicial notice of the record
in Richardson I and Richardson II.
17
brother was an adult, although it suggests a connection between the van and
a relative of S.R.8 The petition states, without any evidentiary support,
“Petitioner was introduced to this family because he became sexually
involved with the adult sister of [S.R.] and her brother.” Finally, the petition
argues that petitioner was following the directions of his codefendant to leave
the scene after the victim was shot. Petitioner cites to M.A.’s testimony that
when she looked out the window after she heard the gunshot, she heard one
of the coparticipants say, “ ‘[L]et’s go, go, go.’ ”
Petitioner submitted additional declarations with his traverse,
including one from his maternal grandmother, who raised him, and one from
a church pastor who knew Richardson and his family. Richardson’s
grandmother’s declaration attests to his good character, evidenced by his
helping his grandmother after she became disabled. She asserts Richardson
was friends with the younger brother of S.R. and L.R. and became sexually
involved with L.R., who was then in her mid-20’s. She further declares that
Richardson committed the robbery “with members of the [R.] household.”
The church pastor’s declaration also attests to Richardson’s good character;
describes him as respectful, loving, and caring; and states he volunteered to
help clean up streets in his neighborhood. Additional exhibits petitioner
submitted with his traverse are the probation officer’s report and
recommendations; records of his successful completion of prison educational
8 The habeas corpus petition cites to testimony of Detective Andersen
stating that he had seen the van before, when “there was an arrest made out
of that vehicle in which [A.R., J.O., and C.S.] were stopped in that van.”
Detective Andersen confirmed that A.R. was related to S.R. He further
testified that the arrest of the individuals in the van related to another
incident. Only two individuals were arrested for Al Junaidi’s murder, and
Detective Andersen testified he was not ever able to identity the third
individual involved.
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programs; codefendant Young’s criminal record; and copies of two
neuroscience articles discussed in Miller v. Alabama, supra, 567 U.S. 460,
Roper v. Simmons (2005) 543 U.S. 551, and Graham v. Florida, supra, 560
U.S. 48.9
According to petitioner, had the trial court been given evidence of
petitioner’s “ ‘immaturity, impetuosity, and failure to appreciate risks and
consequences,’ ” it would have changed the court’s analysis of petitioner’s
capacity for subjective awareness of the risk created.
Richardson argues the facts of his case are “remarkably close” to those
in Moore, supra, which granted a habeas corpus petition challenging the
sufficiency of the evidence supporting a felony-murder special-circumstance
finding. (68 Cal.App.5th at p. 439.) We find Moore readily distinguishable.
In Moore, the 16-year-old defendant and two coparticipants stole a car from a
mall and then drove around the mall parking lot looking for a carjacking
target. (Id. at p. 440.) One of the coparticipants got out of the car alone and
robbed a family at gunpoint and then, without provocation, shot one of the
victims. The shooter then got back into the car the defendant was driving,
and they left the scene. (Id. at p. 441.) Moore admitted he stole a car and
that the robbery and shooting occurred while he was driving a stolen car. (Id.
at p. 443.) However, Moore never left the car during the robbery and
9 Following the petitioner’s submission of multiple exhibits with his
traverse, we requested supplemental briefing regarding the propriety of
considering evidence submitted with a traverse. The People’s supplemental
brief conceded that a traverse and accompanying exhibits may provide
additional facts to support claims made in the petition for writ of
habeas corpus, as long as they do not add new claims to the petition. The
People objected only to certain exhibits that postdated Richardson’s March 2,
2020 resentencing hearing because such exhibits were not available for
Richardson’s counsel to present at the resentencing hearing. Richardson
withdrew the exhibits that postdated March 2, 2020, and we disregard them.
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shooting, and he did not use a gun. (Id. at p. 452.) In contrast, Richardson
was an active participant in the robbery who wielded a firearm. Although
both Richardson and Moore were 16 years old when they committed their
respective crimes, their roles and their actions toward their victims differed
significantly. “[D]efendants who have shown their culpability was too slight
under Banks and Clark ‘are those who were not wielding guns themselves
and also not present for the shooting (either because they were acting as
getaway drivers or because they were involved in the planning of the crime
only).’ [Citations.]” (People v. Bascomb, supra, 55 Cal.App.5th at p. 1090.)
More recently, Harper considered whether a jury’s robbery-murder
special-circumstance finding must be vacated because under Banks and
Clark the evidence did not establish that the defendant, who was 16 years old
at the time of the offense, was a major participant in the robbery or acted
with reckless indifference to human life. (Harper, supra, ___ Cal.App.5th ___
[p. 2].) The defendant was present during the robbery of a shopkeeper known
to the defendant and his coparticipants, although he stayed in the front
section of the store while his coparticipants handcuffed the victim and took
him into a bathroom, where they cut him with a knife, shot him, and robbed
him of his wallet. (Harper, supra, ___ Cal.App.5th ___ [pp. 3–4].) The
defendant interacted with his coparticipants during the robbery; stole
merchandise from the store; heard pounding and yelling coming from the
bathroom, indicating the victim was struggling; and heard the gunshot.
(Harper, supra, ___ Cal.App.5th ___ [pp. 4, 16, 19].) The court found
sufficient evidence that defendant was a major participant in the robbery and
acted with reckless indifference to human life based on the Banks and Clark
factors. (Harper, supra, ___ Cal.App.5th ___ [pp. 10–22].) It then addressed
whether the defendant’s youth should be considered to decrease his
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culpability. (Harper, supra, ___ Cal.App.5th ___ [p. 22].) It assumed, without
deciding, that youth is a proper factor that may be considered under the
totality of the circumstances. (Harper, supra, ___ Cal.App.5th ___ [pp. 22–
23].) The court found the defendant’s youth did not warrant a different result
where the evidence showed defendant, who was only a few days shy of his
17th birthday and held himself out as a 19-year-old, willingly participated in
the robbery of the shopkeeper despite knowing there was a very high risk the
victim would die, gave a shotgun to a coparticipant as they entered the store,
told another coparticipant where she could find knives during the robbery,
took merchandise from the store, and made statements during and after the
robbery that reflected a callous indifference to whether the victim lived or
died. (Harper, supra, ___ Cal.App.5th ___ [pp. 30–32].)
The facts of this case fall somewhere between those in Moore and
Harper. Richardson actively participated in the robbery from start to finish
and used a gun during the robbery, and his response to the shooting was to
physically struggle with the injured victim to complete the robbery before
leaving him to die. However, the duration of the crime was short, and there
is no information regarding Richardson’s knowledge of his coparticipants’
propensity for violence. (Scoggins, supra, 9 Cal.5th at p. 677.)
The trial court’s ruling references the multiple Clark–Scoggins factors
supporting its determination. However, it does not address how Richardson’s
youth may have impacted these factors. Given that Richardson’s counsel
made no such argument, it is understandable that the trial court’s ruling is
silent on the issue. However, as noted ante, we agree with Moore, Ramirez,
and Harris that youth should be considered in determining whether a
defendant acted with reckless indifference to human life. A defendant’s
youth has particular relevance to the subjective element of “reckless
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indifference to human life,” which requires that “ ‘[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.’ ” (Scoggins, supra, 9
Cal.5th at p. 677.)
We cannot say there is no reasonable probability that the trial court
would have ruled differently if defense counsel had explicitly argued and
presented evidence that Richardson’s youth should be considered in
determining whether Richardson acted with reckless indifference to human
life. Therefore, we remand for a new hearing at which Richardson’s counsel
may present evidence and argument regarding the impact of Richardson’s
youth. We do not hold that Richardson’s age is the deciding factor. Nor do
we decide whether Richardson acted with reckless indifference to human life
when his age, combined with the other Clark–Scoggins factors, is considered.
Rather, we leave it to the trial court to determine on remand, with the benefit
of evidence and argument regarding the impact of Richardson’s youth at the
time of the offense, whether Richardson’s actions at the age of 16 constituted
reckless indifference to human life such that he is ineligible for resentencing
under section 1170.95.
DISPOSITION
The order denying Richardson’s section 1170.95 petition is vacated, and
the matter is remanded for a new evidentiary hearing at which Richardson
may argue, and the trial court shall consider, the impact of Richardson’s
youth at the time of the offense as a factor in determining whether
Richardson acted with reckless indifference to human life.
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_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Needham, J.
_________________________
Burns, J.
A162474/In re Eugene Richardson on Habeas Corpus
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