Youth is a factor in totality of circumstances in determining major participant who acted with reckless indifference to human life

THE PEOPLE, Plaintiff and Respondent, v. ALIJONDRO JONES, Defendant and Appellant. (Cal. Ct. App., Dec. 23, 2022, No. A162634) 2022 WL 17884050, at *1

Summary: Jones appealed from an order denying his motion for resentencing under Penal Code section 1170.95 after he was convicted of first degree murder under a felony-murder theory. The court found him ineligible for relief because he was a major participant who acted with reckless indifference to human life. On appeal, Jones contends (1) the trial court was precluded from relying on evidence that he was the actual shooter because the jury found not true the allegations that he personally used a firearm; (2) insufficient evidence supports the trial court’s determination that he was a major participant who acted with reckless indifference to human life; (3) the trial court erred in not considering his youth as a factor in making that determination; and (4) defense counsel provided ineffective assistance by not raising the “collateral estoppel” argument and by not raising the issue of Jones’s youth after the court’s ruling. In a supplemental opening brief, Jones contends the order must be reversed due to a recent decision in this appellate district, People v. Cooper(2022) 77 Cal.App.5th 393 (Cooper).

Because the trial court’s ruling occurred before the decision in In re Moore (2021) 68 Cal.App.5th 434 (Moore), it cannot be presumed from the record that the trial court considered evidence of Jones’s youth, which Mooreheld to be “a relevant factor” in deciding whether a defendant was a major participant who acted with reckless indifference to human life. (Id. at p. 454, italics added.) The Court of Appeal remanded for the court’s consideration of all relevant factors consistent with prevailing law.

Jury instructions on first degree felony murder

The jury was instructed on first degree felony murder and told that Jones could be guilty under this theory if a coparticipant committed the fatal act. The jury convicted Jones of first degree felony murder but found not true the allegation that he had personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)). (The jury did not return verdicts on the personal and intentional discharge allegations under section 12022.53, subdivisions (c) and (d), because the verdict forms instructed the jury to return findings on those allegations only if it found true the personal use allegation.)

Jones was sentenced to prison for 25 years to life.

Jones’s Petition for Resentencing

In 2018, Senate Bill No. 1437 (SB 1437) was enacted to “amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); see People v. Gentile (2020) 10 Cal.5th 830, 842.)

SB 1437 amended section 189 so that murder liability is not imposed on persons convicted of felony murder unless they were the actual killer, an aider and abettor who acted with intent to kill, or a major participant in the underlying felony who acted with reckless indifference to human life.

SB 1437 also created section 1170.95, which established a procedure for defendants convicted of murder under the old law to seek resentencing in the trial court if they believe they could not be convicted of that crime given the above amendment to section 189.

In December 2020, Jones filed a petition for resentencing under section 1170.95 (now renumbered as section 1172.6). In March 2021, after an evidentiary hearing under section 1170.95, subdivision (d), the trial court denied Jones’s petition.

The court considered whether the prosecution had proved beyond a reasonable doubt that Jones was a major participant in the robbery and acted with reckless indifference to human life as set forth in section 190.2, subdivision (d). The court described its findings according to factors discussed in People v. Clark (2016) 63 Cal.4th 522 (Clark) and People v. Banks (2015) 61 Cal.4th 788 (Banks).

The court found that Jones was a major participant in the underlying felony and displayed a reckless indifference to human life based on Jones’s subjective awareness that his participation in the felony involved a great risk of death, not just a foreseeable risk.

major participant who acted with reckless indifference to human life

“The ultimate question pertaining to being a major participant is whether the defendant’s participation in criminal activities known to carry a grave risk of death was sufficiently significant to be considered major.” (Clark, supra, 63 Cal.4th at p. 611, citing Banks, supra, 61 Cal.4th at p. 803, internal quotation marks omitted.) “Among the relevant factors in determining this question, [the California Supreme Court has] set forth the following: ‘What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inactions play a particular role in the death? What did the defendant do after lethal force was used?’ ” (Clark, at p. 611.)

acted with reckless indifference to human life

 Factors relevant in determining whether the defendant acted with reckless indifference to human life include: “(1) Knowledge of weapons, and use and number of weapons”; “(2) Physical presence at the crime and opportunities to restrain the crime and/or aid the victim”; “(3) Duration of the felony”; “(4) Defendant’s knowledge of cohort’s likelihood of killing”; and “(5) Defendant’s efforts to minimize the risks of violence during the felony.” (Id. at pp. 618–623, capitalization and italics omitted.)

Reckless indifference to human life “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.” (Clark, supra, 63 Cal.4th at p. 617.) As to its subjective element, “[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed” and consciously disregard “the significant risk of death his or her actions create.” (Banks, supra, 61 Cal.4th at p. 801.) As to its 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.” (Clark, supra, 63 Cal.4th at p. 617.) “ ‘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.)

Court of Appeal remands to consider Jones’s youthful age

The Court cannot conclude whether there is substantial evidence that Jones was a major participant and acted with reckless indifference to human life based on the totality of the circumstances—as we would have to do to uphold the order. (See Moore, supra, 68 Cal.App.5th at pp. 454–455.) The Banks and Clark factors are not exclusive. As discussed next, the totality of the circumstances necessarily includes the defendant’s youthful age, which the record does not indicate the court considered.

Youthful Age

At the resentencing hearing, defense counsel told the court that Jones “was barely 20 years old at the time of this crime,” “immature” and “still developing.” Counsel asked the court to consider Jones’s youth, referring the court to Miller v. Alabama (2012) 567 U.S. 460 (Miller) and Graham v. Florida (2010) 560 U.S. 48 (Graham) for the proposition that “recklessness is a hallmark of youth, but it does not alone demonstrate a reckless disregard for the value of human life.”

In addition, the record of conviction included a report provided by the defense for the sentencing hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 and section 3015. As Jones describes it, the report asserted that he had a traumatic and violent upbringing.

In denying the petition, the court did not mention Jones’s age or maturity level. Jones says the court “ignored” the evidence, constituting error in light of cases holding that a defendant’s age must be considered when determining whether the defendant was a major participant who acted with reckless indifference to human life.

Here, Jones volunteered to perpetrate the crime he helped to plan and then grabbed a loaded gun to do it, and he has not yet explained how his exposure to violence and becoming numb to people being shot makes it less likely he acted with reckless indifference to life.

Here, in the interest of justice, the Court of Appeal remanded so the trial court could have a meaningful opportunity to consider Jones’s youth as part of the totality of the circumstances in  determining whether he was a major participant who acted with reckless indifference to human life.