People v. Davis CA2/5 ( 2023 )

Filed 5/15/23 P. v. Davis CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B321334
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A653841)
v.
DWAYNE ELLIS DAVIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, and Blake Armstrong, Deputy
Attorney General, for Plaintiff and Respondent.
Defendant Dwayne Ellis Davis (defendant) was convicted of
first degree felony murder and attempted robbery in 1989. In
2019, defendant petitioned for resentencing under Penal Code
section 1172.6 (former Penal Code section 1170.95).1 The trial
court issued an order to show cause, found beyond a reasonable
doubt that defendant was a major participant in the underlying
felony who acted with reckless indifference to human life, and
denied the petition. We are asked to decide (only) whether
substantial evidence supports the trial court’s reckless
indifference finding.
I. BACKGROUND
Defendant was convicted of first degree felony murder and
three counts of attempted robbery in 1989. As to each count, the
jury found true the allegation that a principal was armed with a
handgun. The trial court sentenced defendant to 25 years to life
in state prison on the murder count, plus a consecutive term of
one year for the firearm enhancement on that count. 2 This court
affirmed the judgment on appeal in 1992. (People v. Davis (Dec.
31, 1992, B048427) [nonpub. opn.] (Davis I).)
Defendant filed a petition for resentencing under section
1172.6 in 2019. The trial court summarily denied the petition
because it read the factual background set forth in our opinion in
1
Undesignated statutory references that follow are to the
Penal Code.
2
The trial court sentenced defendant to concurrent terms of
two years on each of the attempted robbery counts and stayed
additional one-year terms for the firearm enhancements on those
counts.
2
Davis I to establish that defendant was a major participant in the
underlying felony who acted with reckless indifference to human
life. We reversed and remanded for the trial court to appoint
counsel and to conduct further proceedings in accordance with
the terms of section 1172.6. (People v. Davis (May 21, 2020,
B298618) [nonpub. opn.].) On remand, the trial court issued an
order to show cause and held a hearing on defendant’s petition.
Neither the prosecution nor defendant, who was
represented by counsel at the hearing, presented new evidence.
The trial court accordingly relied on the reporter’s transcript
from defendant’s 1989 trial in making its ruling.
A. 1989 Trial Testimony
Defendant and co-defendant Manuel Lee Hill (Hill) were
tried together using two juries.
Juan Carlos Almaraz (Almaraz) testified that he and two
other men, Gustavo Franco (Franco) and Jose Carrillo (Carrillo),
went to a liquor store in Compton around 10:40 p.m. on
November 26, 1988. After leaving the store, they were followed
by three other men. When the men following Almaraz and his
group began to run, Franco and Carrillo fled but Almaraz turned
and “stood there.” The men demanded money from Almaraz.
One held Almaraz from behind, and another pointed a gun at
Almaraz’s stomach. The barrel of the gun was two or three
inches from Almaraz. Almaraz identified the gun—a chrome-
colored handgun with a white handle—at trial.
When Almaraz said he did not have any money, the man
holding him from behind checked his pockets. This person
continued to restrain Almaraz as the other two men (one of whom
had the gun) ran off in pursuit of Almaraz’s companions.
3
Almaraz saw the man with the gun fire three shots.
(Investigators later found three .25 caliber casings at the scene.)
The shooter and the third man ran back toward Almaraz and the
man restraining him, and the three perpetrators ran away
together.
Almaraz ran in the opposite direction to see what happened
to his companions. Carrillo lay on the ground, but he stood up
and crossed the street holding his stomach. He fell again, and
Almaraz sought help.3 Almaraz testified that police arrived about
two minutes after the shooting.
Carrillo died. The medical examiner who performed the
autopsy testified Carrillo suffered two gunshot wounds. One
bullet entered his back and passed through his heart and left
lung, and the other hit his left buttock. A person suffering these
wounds would have lived only a few minutes. A Los Angeles
County Sheriff’s Deputy testified that the bullets recovered from
Carrillo’s body were consistent with bullets test-fired from the
gun Almaraz identified at trial.
Almaraz testified that people began to gather when police
arrived. Almaraz told police at the scene that two of these
bystanders were involved in the robbery. Almaraz believed
defendant was one of the people he pointed out to police, but he
was “[n]ot very sure.” Almaraz could not positively identify
either defendant or co-defendant Hill at trial (because he did not
3
The trial court sustained a foundation objection to
Almaraz’s testimony that “[a] lady that was there” called the
police, and Almaraz was not asked any further questions on this
topic.
4
get a good look at the robbers’ faces), but he testified that neither
of them was the shooter.
Detective John Swanson of the Compton Police Department
testified that the men Almaraz identified the night of the incident
were Sean Ford (Ford) and Larry Blouin (Blouin). 4 Ford and
Blouin were arrested at the scene. A couple days later, police
arrested Hill’s brother, Percy Miles (Miles), who was in
possession of the murder weapon. Detective Swanson asked
Miles how he came to have the gun and subsequently arrested
defendant. Defendant told Detective Swanson he loaned the gun
to Ford, and Ford said the gun had been “used” when he returned
it to defendant.
Prosecutors initially determined they did not have
sufficient evidence to proceed against defendant and he was
released from custody. Detective Swanson subsequently spoke
with him as a witness on several occasions. Eventually, based on
information from Miles, Detective Swanson considered defendant
a suspect once again and arrested him.
Detective Swanson’s tape-recorded post-arrest interview of
defendant was played at trial. The audio was not reported in the
trial transcript and the tapes were not before the section 1172.6
court during the evidentiary hearing on defendant’s petition.
Defendant testified at trial, however, and he acknowledged
making certain statements to Detective Swanson.
Defendant testified that he and Miles found the gun in
some bushes two or three months before the robbery-murder.
Defendant kept the gun at night and Miles took it during the day,
4
An unidentified woman also identified Ford and Blouin at
the crime scene.
5
with the two passing it back and forth on a daily basis. The last
time defendant had the gun was when Miles picked it up on the
morning of the robbery-murder. Defendant testified he falsely
told Detective Swanson he sold the gun to Miles at Miles’s
urging. Defendant testified he was in a liquor store playing a
video game at the time of the robbery-murder and walked outside
when he heard gunshots—but saw nothing. He only learned
what had happened when he returned to the store the next day
and spoke with a clerk.
Defendant acknowledged telling Detective Swanson that
he, Hill, and Hill’s cousin, Antonio Ward (Ward), went out to
commit a robbery. Defendant acknowledged saying he told Miles
that Hill “did something with the gun” and “‘did a Mexican.’”
Defendant also acknowledged saying that he hid the gun in an
alley after the robbery, retrieved it the next morning, and sold it
to Miles the same day. Defendant testified these statements
were false and he made them because Detective Swanson said he
would be “getting . . . [o]ut of jail soon” if he did.5
Other defense witnesses included Hill’s mother and
girlfriend, who served as alibi witnesses for Hill, and 13-year-old
5
As summarized in Davis I, defendant’s recorded statement
indicated that “[defendant], Hill . . . and . . . Ward committed the
robbery. They went to the liquor store because they were going to
‘jack’ (rob) someone. The gun was [defendant’s]; Tony had the
gun at the liquor store, but it was Hill who shot [Carrillo].
Something went wrong during the robbery, when one of the
[victims] ran. [Defendant], Hill [and] Ward all ran back to
[defendant’s] house. [Defendant] took the gun from Hill and hid
it in an alley. The next morning, [defendant] retrieved the gun.
He sold it later that night to Percy Miles.”
6
Mark Jamal Hanna, who testified that the shooter was not Hill,
but rather a “guy [who] hop[ped] out” of a Mazda car. Hill also
testified, but defendant’s jury did not hear that testimony.
B. The Section 1172.6 Court’s Ruling on Defendant’s
Petition
At the outset of the hearing on defendant’s petition, the
section 1172.6 court emphasized it was not relying on our opinion
in Davis I in assessing the facts of the case. Rather, the trial
court relied “solely on the facts of the reporter’s transcript of the
jury trial, again, excluding the portions where [defendant’s] jury
was not present.” The trial court found that defendant “was an
individual who either was standing behind [Almaraz] doing—for
lack of a better phrase or term, a pocket check while holding the
neck or jacket area of [Almaraz] preventing him from leaving or
was one of the individuals standing to his left or right without
the gun.” Defendant then either continued to hold Almaraz or
joined the shooter in pursuing Carrillo and Franco. The gun
belonged to defendant, and he provided it to the shooter “loaded
with at least three rounds.” Defendant then took the gun back
from the shooter and sold it.
The trial court compared these facts to those in In re Loza
(2017) 10 Cal.App.5th 38 (Loza), in which this court denied a
habeas petition challenging the sufficiency of the evidence
supporting section 190.2 special circumstance findings based on
the defendant’s role as a major participant who acted with
reckless indifference to human life in the course of a gas station
robbery in which two clerks were killed. (Id. at 41-42.) The Loza
panel emphasized, among other things, that the defendant in
that case handed the gun to the shooter and held a door open to
7
facilitate his and the shooter’s escape. (Id. at 49-51.) The trial
court reasoned defendant’s conduct in this case went “above and
beyond” that in Loza because, rather than merely holding a door,
defendant “held [Almaraz] by the back of the neck or jacket area
preventing him from hindering the other suspects . . . or
[defendant] was the individual that ran after the other victim
with the shooter assisting that individual in the shooting,
preventing . . . him from being hindered from doing that.”
Based on its findings that defendant was a major
participant in the attempted robbery who acted with reckless
indifference to human life, the trial court concluded defendant
was ineligible for resentencing under section 1172.6.
II. DISCUSSION
Defendant concedes the trial court’s finding that he was a
major participant in the attempted robbery is supported by
substantial evidence and he challenges only the finding that he
acted with reckless indifference to human life. Although
defendant correctly observes that knowing an accomplice is
armed (as defendant knew here) is not alone sufficient to support
a reckless indifference finding, there is other evidence that also
supports the trial court’s finding that he disregarded a grave risk
of death—including the evidence of defendant’s role in supplying
and disposing of the murder weapon and the absence of any effort
to restrain the shooter or aid Carrillo. We shall elaborate, but
under the governing substantial evidence standard (People v.
Clements (2022) 75 Cal.App.5th 276, 298; People v. Owens (2022)
78 Cal.App.5th 1015, 1022), there is no basis to reverse the trial
court’s ruling.
8
A. The Reckless Indifference to Human Life Standard
Until recently, “neither the United States Supreme Court
nor California courts offered much guidance about the major
participant or reckless indifference standards . . . .” (People v.
Strong (2022) 13 Cal.5th 698, 705.) Our Supreme Court “first
undertook to provide that guidance in [People v.] Banks [(2015)
61 Cal.4th 788 (Banks)].” (Ibid.) The Court set forth a non-
exhaustive list of considerations relevant to determining whether
a defendant was a major participant and emphasized that
“[r]eckless indifference to human life ‘requires the defendant be
“subjectively aware that his or her participation in the felony
involved a grave risk of death.”’ [Citations.]” (Banks, supra, at
807.) The Court further emphasized that “knowledge of the
possible risk of death inherent in certain felonies (like armed
robbery)” does not constitute reckless indifference to human life.
(Id. at 809.) “[O]nly knowingly creating a ‘grave risk of death’
satisfies” the standard. (Id. at 808.)
One year later, in People v. Clark (2016) 63 Cal.4th 522(Clark), our Supreme Court discussed the reckless indifference
standard in greater detail. The Court stated, as a general
matter, that this element “encompasses a willingness to kill (or to
assist another in killing) to achieve a distinct aim, even if the
defendant does not specifically desire that death as the outcome
of his actions.” (Id. at 617.) The Court then set forth a non-
exhaustive list of “case-specific factors that [it] and other state
appellate courts have considered in upholding a determination of
reckless indifference to human life . . . .” (Id. at 618.) The factors
include (1) the defendant’s awareness that a gun will be used,
whether the defendant personally used a gun (even if not to kill
the victim), and the number of guns used; (2) the defendant’s
9
physical proximity to the murder and, relatedly, opportunities to
restrain the killer or aid the victim; (3) the duration of the felony;
(4) the defendant’s knowledge “of factors bearing on a cohort’s
likelihood of killing”; and (5) the defendant’s efforts to minimize
the risk of violence during the felony.6 (Id. at 618-622; see also In
re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins) [“Reckless
indifference to human life has 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”’”].)
B. Substantial Evidence Supports the Section 1172.6
Court’s Finding that Defendant Exhibited Reckless
Indifference to Human Life
Although the factors discussed in Clark and Scoggins are
present to varying degrees in this case, the “totality of the
circumstances” (Scoggins, supra, 9 Cal.5th at 677) provides
6
Because the defendant in Clark acted as the (abortive)
getaway driver in the armed robbery of a retail store during
which an employee’s mother was shot and killed, the Court
framed its discussion around “cases involving nonshooter aiders
and abettors to commercial armed robbery felony murders.”
(Clark, supra, 63 Cal.4th at 618.)
10
sufficient support for the section 1172.6 court’s finding that the
prosecution proved defendant acted with reckless indifference to
human life.
1. Defendant’s role in supplying and disposing of
the murder weapon
“The mere fact of a defendant’s awareness that a gun will
be used in the felony is not sufficient to establish reckless
indifference to human life.” (Clark, supra, 63 Cal.4th at 618,
citing Banks, supra, 61 Cal.4th at 809.) Nonetheless, supplying a
loaded gun to an accomplice who uses it to kill can support a
finding that a defendant was recklessly indifferent to human life.
(See, e.g., People v. Douglas (2020) 56 Cal.App.5th 1, 10
[affirming finding of reckless indifference where the defendant
gave a loaded gun to the shooter and “made no effort to unload it
or to caution [the shooter] about restraining his conduct”]; In re
Parrish (2020) 58 Cal.App.5th 539, 541, 544 [reckless indifference
established where the defendant “supplied” one of two guns used
in robbery]; Loza, supra, 10 Cal.App.5th at 53 [“more than simply
knowing [the shooter] would use a gun during the robbery, [the
defendant] supplied [the shooter] with it immediately
beforehand”].)
Defendant, however, contends his role in supplying the
murder weapon is comparable to the defendant’s actions in In re
Ramirez (2019) 32 Cal.App.5th 384 (Ramirez), which were found
to be not especially probative of a reckless indifference to human
life. The defendant in Ramirez shared a room with a juvenile
accomplice in the home of the roommate’s parents. (Id. at 389.)
When the defendant found two guns in an abandoned house, the
defendant practiced firing them with the roommate and the
11
roommate’s friend, and the roommate hid them under his bed.
(Ibid.) Two days later, the defendant went out with the
roommate and the roommate’s friend, who told him they were
each carrying one of the guns to protect themselves from
members of a rival gang. (Ibid.) Later joined by a fourth person,
the group decided to rob someone in a bar parking lot. (Id. at
390.) The roommate gave the gun he carried to the fourth
person, and the defendant and the roommate waited across the
street while the other two robbed—and shot and killed—a bar
patron. (Ibid.)
The Court of Appeal reversed the trial court’s section 190.2
special circumstance finding for lack of sufficient evidence of a
reckless indifference to human life. The appellate court did so
acknowledging a factfinder reasonably could have inferred the
defendant supplied the guns that ultimately were used in the
attempted robbery, albeit at a time when there was no evidence
that criminal conduct was then contemplated. (Id. at 404.)
Here, defendant’s role in supplying the murder weapon was
substantially greater than discovering it and relinquishing it to
someone other than the shooter days before a murder. In
contrast to Ramirez, defendant exercised greater control over the
murder weapon than either of his accomplices. Defendant
testified he shared the gun with Miles (who was not involved in
the robbery-murder) and defendant admitted he took
responsibility for hiding the gun after the murder and
subsequently sold it to Miles.7 Additionally, unlike in Ramirez,
7
Defendant’s after-the-fact repossession and sale of the
weapon that he knew was used to shoot Carrillo is significant. At
most, it provides a basis to infer defendant expected in advance
12
the evidence supports the inference that defendant must have
provided the gun to the shooter not long before the robbery-
murder: defendant testified he and Miles passed the gun back
and forth on a daily basis, with defendant taking possession at
night.
2. Defendant’s proximity to the murder and
opportunity to restrain the shooter or aid
Carrillo
“Proximity to the murder and the events leading up to it
may be particularly significant where . . . the murder is a
culmination or a foreseeable result of several intermediate steps,
or where the participant who personally commits the murder
exhibits behavior tending to suggest a willingness to use lethal
force. In such cases, ‘the defendant’s presence allows him to
observe his cohorts so that it is fair to conclude that he shared in
their actions and mental state. . . . [Moreover,] the defendant’s
presence gives him an opportunity to act as a restraining
influence on murderous cohorts. If the defendant fails to act as a
restraining influence, then the defendant is arguably more at
fault for the resulting murders.’ [Citation.]” (Clark, supra, 63
Cal.4th at 619.)
Almaraz’s testimony indicates defendant was close enough
to see the shooting, either because he was holding Almaraz (who
saw the shooter fire) or pursuing Carrillo and Franco alongside
the shooter. Although courts assign less weight to this factor in
cases involving relatively sudden or spontaneous acts of violence
that the gun would be used to kill. At least, it provides a basis to
infer defendant was indifferent to how the gun had been used.
13
(People v. Keel (2022) 84 Cal.App.5th 546, 560 (Keel); In re
McDowell (2020) 55 Cal.App.5th 999, 1014), it remains
significant that defendant did not caution the shooter against
using the gun nor urge him not to pursue the fleeing victims. In
addition, defendant was not a passive observer. Whether he
joined the shooter in pursuing Carrillo and Franco or continued
to restrain Almaraz, defendant ensured the shooter was not
outnumbered. (People v. Bascomb (2020) 55 Cal.App.5th 1077,
1089 [reasoning that a defendant who “used his weapon to
keep . . . other [robbery] victims at bay . . . actively enabled the
murder” of a victim in another room].)
Defendant’s failure to render or summon aid also supports
a finding of reckless indifference to human life. Defendant’s
contention that nothing he could have done “would have made
any difference” erroneously frames the issue in terms of whether
he could have saved Carrillo after he was shot. The relevant
inquiry, however, is what defendant’s actions say about his
“frame of mind concerning [Carrillo’s] death.” (Clark, supra, 63
Cal.4th at 620.) Despite the medical examiner’s testimony that a
person with Carrillo’s wounds would not have lived more than a
few minutes, there is no indication that a lay person would have
known the wounds would prove fatal; Almaraz testified Carrillo
was able to stand and cross the street even after defendant and
his companions fled. And although someone evidently called for
help, there is no indication defendant knew they had done so or
that police were on the way. Defendant’s comparison of this case
to In re Taylor (2019) 34 Cal.App.5th 543, in which the Court of
Appeal held the defendant’s flight from the scene of a murder did
not reflect reckless indifference to human life in part because “it
14
appear[ed] [the defendant] knew help was arriving” (id. at 559),
is therefore inapposite.
3. Duration of the robbery
As our Supreme Court explained in Clark, “[w]here a
victim is held at gunpoint, kidnapped, or otherwise restrained in
the presence of perpetrators for prolonged periods, ‘there is a
greater window of opportunity for violence’ [citation], possibly
culminating in murder. The duration of the interaction between
victims and perpetrators is therefore one consideration in
assessing whether a defendant was recklessly indifferent to
human life.” (Clark, supra, 63 Cal.4th at 620.) Clark cites Tison
v. Arizona (1987) 481 U.S. 137, in which the defendants “‘guarded
the victims at gunpoint while [the group of perpetrators]
considered what next to do,’” to illustrate the principle. (Clark,
supra, at 620.) At the other end of the spectrum are brief
encounters in which “events unfurl[ ] in rapid succession” and
deadly violence is an “‘“impulsive” response to the victim’s
unexpected resistance, as opposed to the culmination of a
prolonged interaction that increased the opportunity for violence.’
[Citations.]” (Keel, supra, 84 Cal.App.5th at 561.)
Although there was no extended contact between the
robbers and victims in this case, defendant helped to prolong the
incident either by restraining Almaraz while his companions
pursued Carrillo and Franco or by joining the shooter in the
pursuit. The decision to pursue (or facilitate the pursuit of)
Carrillo and Franco with a gun increased the risk of deadly
violence because Carrillo and Franco’s flight demonstrated they
had no intention of yielding to threats alone. Under these
15
circumstances, the brevity of the encounter is at best a neutral
factor.
4. Defendant’s knowledge of the shooter’s
propensity to use deadly violence
“A defendant’s knowledge of factors bearing on a cohort’s
likelihood of killing are significant to the analysis of reckless
indifference to human life. [The] [d]efendant’s knowledge of such
factors may be evident before the felony or may occur during the
felony.” (Clark, supra, 63 Cal.4th at 621, emphasis added.) Here,
as in Clark, “no evidence was presented at trial that [the shooter]
was known to have a propensity for violence, let alone evidence
indicating that defendant was aware of such a propensity.”
(Ibid.) Unlike the defendant in Clark, however, who “had no
opportunity to observe anything in [the shooter’s] actions just
before the shooting that would have indicated that [the shooter]
was likely to engage in lethal violence” (ibid.), defendant was
present to see the shooter point a loaded gun at Almaraz’s
stomach. Defendant’s inaction as the shooter ran off in pursuit of
Carrillo and Franco was informed by knowledge that the shooter
had no compunctions about making active use of the firearm.
Defendant contends the sheer senselessness of the
shooting—nobody even checked Carrillo’s pockets—demonstrates
he could not have anticipated it. This argument assumes, with
no basis, that the shooter and the person who joined him in
chasing Carrillo and Franco did not have good reason (e.g., lack
of ammunition) to break off the pursuit. More significantly, even
if defendant and his associates simply panicked and fled with
nothing to show for their efforts, this does not mean the shooter
never had a motive to fire.
16
5. Efforts to minimize risk of violence
In Clark, our Supreme Court determined “there [was]
evidence that [the] defendant planned the crime with an eye to
minimizing the possibilities for violence” because, among other
things, he planned to rob a store “after closing time, when most of
the employees had left the building” and “there were not
supposed to be any bullets in the gun” used in the robbery.
(Clark, supra, 63 Cal.4th at 621-623.) Defendant does not
identify any specific actions he took to minimize the risk of
violence in this case, but he suggests this factor is neutral
because “there appears to be nothing in the plan that one can
point to that elevated the risk to human life beyond those risks
inherent in any armed robbery.” (Id. at 623.) We accept this
factor does not point strongly one way or the other, but that does
not help defendant in light of our analysis of the other factors—
particularly his role in supplying the murder weapon and failure
to do anything to restrain the shooting or summon aid.
6. Defendant’s youth
In addition to the factors identified in Clark and Scoggins,
some courts have recognized youth as a relevant consideration in
determining whether a defendant acted with reckless indifference
to human life. (People v. Ramirez (2021) 71 Cal.App.5th 970, 990;
People v. Jones (2022) 86 Cal.App.5th 1076, 1091-1093 (Jones).)
They have done so even where the defendant is 18 or older.
(Jones, supra, at 1092-1093 [reversing denial of resentencing
petition and remanding for consideration of 20-year-old’s youth].)
Defendant, who was 18 years old at the time of the offense,
argues for the first time in his reply brief that his age weighs
against a reckless indifference finding. Assuming defendant’s
17
age is an appropriate factor, it does not outweigh defendant’s
conduct that demonstrates his indifference as the robbery in this
case escalated to murder. As one court has stated, “Youth can
distort risk calculations. Yet every 18 year old understands
bullet wounds require attention. The fact of youth cannot
overwhelm all other factors. [Citation.]” (People v. Mitchell
(2022) 81 Cal.App.5th 575, 595.)
DISPOSITION
The order denying defendant’s petition for resentencing is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
18