Opinion
B324176
04-24-2024
THE PEOPLE, Plaintiff and Respondent, v. LEROY CLARK, Defendant and Appellant.
Richard D. Miggins, 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 Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA084003, William C. Ryan, Judge.
Richard D. Miggins, 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 Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.
RAPHAEL, J. [*]
INTRODUCTION
In 1995, separate juries convicted Leroy Clark and his codefendant Willie L. Robey of first degree felony murder, and, in a prior appeal, this court affirmed their murder convictions. (People v. Clark et al. (May 14, 1998, B099630) [nonpub. opn.].) After the Legislature enacted changes in the law governing criminal liability for defendants convicted of murder based on a felony-murder theory, Clark petitioned for resentencing under Penal Code former section 1170.95 (now section 1172.6). The superior court denied Clark's petition after an evidentiary hearing. On appeal Clark contends substantial evidence does not support the court's findings that he was a major participant in the underlying felony and acted with reckless indifference to human life. He also argues the court failed to make a finding required by section 1172.6. We affirm.
Clark filed his petition under former section 1170.95, which the Legislature later renumbered as section 1172.6 without substantive change, effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) We refer to section 1172.6 for consistency. Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The factual summary is based on the evidence presented at Clark's evidentiary hearing on his petition for resentencing.
Around July 1986, Clark traveled from Jackson, Mississippi to Los Angeles, California in his large, maroon, 1970's, four-door Cadillac. Clark, a pimp, drove with two sex workers who worked for him. The two women were nicknamed Coco and Candy. Coco was 31 years old, Black, slender, and five feet four inches to five feet six inches tall. Candy was about 17 or 18 years old, Black, and also five feet four inches to five feet six inches tall. Robey, who was Clark's friend, and Cassandra James, who was Robey's girlfriend, accompanied Clark, Coco, and Candy on the trip.
Clark had a gun with bullets. Somewhere in the desert on the way to California, Clark fired it. The group also stopped at a store, where Robey bought a necklace with a silver chain and a small, silver-and-turquoise charm in the shape of a cowboy boot. He wore the necklace around his neck as soon as he bought it.
The group arrived in Los Angeles and checked into a motel room. After Clark, Coco, and Candy spent all their money on crack cocaine, Clark "put [Coco and Candy] on the streets" to obtain money through sex work. Coco and Candy returned empty-handed. Having no money to pay for the room, the group packed up and left the motel. Clark drove the group around in his car. It was his idea to go to the Sheraton Townhouse, a Los Angeles hotel.
Around midnight Clark pulled up to the hotel and instructed Coco and Candy to go to the hotel bar, find a "trick" who had money and a room at the hotel, and return with the room number. Clark, who stayed in the car with Robey, wanted to know the room number "so they could rob [the trick]." James also waited in the car. Coco and Candy walked into the hotel. After several minutes, Coco and Candy returned. Candy said she had found a trick and gave the man's room number.
Clark directed Candy to go up to the room, get the man out of his clothes, and leave the door unlocked. Clark said he and Robey would be up shortly. Candy went back into the hotel.Several minutes passed. Clark said, "Come on man, let's go." Clark and Robey got out of the car. Clark had with him a pistol that looked like the same gun he had fired earlier. Clark put the pistol in the waistband of his pants near the small of his back. The two men entered the hotel. At some point after the men left, Coco moved the vehicle to the other side of the street. She and James waited.
One witness testified only Candy went back into the hotel, but other evidence indicated both Candy and Coco returned to the hotel, with Candy going to the Lanai section and Coco going back to the hotel bar and explaining to the bartender that she was looking for her car keys.
After Coco and James waited about 10 or 15 minutes, Candy, Clark, and Robey emerged from the hotel together and got into the car. Candy was shaking and crying. Clark asked, "What in the fuck are you crying for, bitch?" Candy replied, "You all could have killed him." Clark stated, "Well, bitch, what you give a fuck if we killed him or not?" Clark had spatters of blood on his shirt. Holding his own hand, Robey complained, "The motherfucker bit me." There was blood on the knuckles of Robey's right hand.
Clark gave a wallet to Robey and stated, "Man that motherfucker was fighting for that wallet." Clark also stated, "I bust him on the side of his head and he still didn't want to turn it loose." When Clark gave Robey the wallet, Robey opened it and counted the money. There was about $200 in the wallet and several credit cards. Robey gave Clark half the cash and kept the other half. Clark asked, "That motherfucker was fighting like that over $200?" He also asked, "Man, you didn't get the briefcase?" Robey replied, "No, I thought you got it. I was busy trying to tie the guy up." Robey mentioned "trying to hold him and tie him down."
Clark and his four cohorts headed back to Jackson, Mississippi. Clark was in charge of the credit cards. They stopped to get gas, which Clark bought with a credit card. They also stopped at a hotel, and Robey paid for the room with cash from the wallet.
The victim of the robbery was Norris Hayes, an insurance consultant staying at the Sheraton Townhouse during a business trip to Los Angeles. On July 30, 1986, Hayes was sitting around a table at the hotel bar and having drinks with coworkers after dinner. Hayes was six feet two inches tall, weighed 190 to 195 pounds, and was, according to his wife, a "very strong man" in "excellent physical condition." Sometime before 12:30 a.m., two women entered the hotel bar. They were Black, slender, and five feet three inches to five feet seven inches tall. They looked young: The women appeared to be in their 20's or late teens. One of the women wore a green top and the other woman, who appeared to be younger, wore a top that was aqua blue in color.
Hayes periodically looked over at the women and winked. He approached the woman in the blue top, kissed the back of her hand, and whispered something in her ear. The two women then left the bar. Hayes returned to his table, but excused himself and retired for the evening before the last of his group departed. When the bar closed around 1:00 a.m., one of Hayes's colleagues, who was returning to his own room, saw the back of the woman in the blue top. She was walking toward the Lanai section of the hotel where Hayes's room, room 1508, was located.
The cocktail waitress who had served the two women left the hotel bar when her shift ended and, accompanied by the bellman, walked to her car. As she walked, she noticed the two women from the hotel bar in a large, maroon, 1970's, American car. There were five people inside the car: The two women from the bar, along with a third woman and two men.
On the morning of July 31, 1986, two of Hayes's colleagues became concerned when Hayes, an early riser, did not meet them as planned. They contacted the hotel manager, who was able to open the door to Hayes's room. Inside, they discovered Hayes's dead, naked body.
The police arrived to find Hayes's body lying face down. He was handcuffed to the bedframe. Not only were there ligature or similar marks on his wrists, but there were also abrasions or ligature marks on his legs. A box spring was off the frame, and the mattress was moved aside. The mattress and box spring were on top of Hayes's upper body. A bloody towel that was wrapped around his head covered his face from his eyes down to and over his mouth. There was blood on Hayes's head and smeared on his face. His forehead had a cut or puncture wound. When his body was later moved, the towel, which had been loosely secured at the back of his head, slipped, revealing a bloody gag in his mouth.
A condom lay on a nightstand next to the bed. Across from the bed was a dresser with a briefcase on it. A broken silver chain with a silver and turquoise pendant shaped like a cowboy boot was found a few inches from Hayes's body. According to James's trial testimony, it was the necklace Robey had bought on the trip to Los Angeles.
The coroner who performed the autopsy determined the cause of death was asphyxia due to manual strangulation. Manual strangulation meant the neck was compressed by placing hands around it. Compression could result in the larynx fracturing, and Hayes's larynx was fractured into two halves. This was an unusual injury and indicated a great amount of force had been applied to Hayes's neck. Hayes also had bruises and broken ribs. The right side of his forehead had a two-inch laceration, which was the primary source of Hayes's bleeding. The nature of the forehead wound indicated it was an impact injury consistent with being hit with the butt of a gun. Hayes's injuries were consistent with a struggle having taken place.
DNA testing performed on loose hairs collected from Hayes's back and on blood stains from the mattress and bedsheet on top of the box spring excluded Hayes and Robey as contributors. Clark could not be excluded.
In 1987 Clark had a conversation with his cousin during which his cousin's girlfriend was present in the same room. Clark talked about having "use[d] the girls" when "setting up tricks for robberies." He told his cousin he was wanted for murder in California. His cousin's girlfriend asked Clark whether he did it. Clark smirked in reply and stated, "People get what they deserve."
B. Clark's Trials and Prior Appeal
Clark and Robey were charged in an information filed May 13, 1994 with murder (§ 187, subd. (a); count 1) and second degree robbery (§ 211; count 2). At Clark's first trial, a jury found him guilty of second degree robbery. It could not reach a unanimous verdict on the murder charge, and the trial court declared a mistrial on that charge. For Clark's second trial, he was tried jointly with Robey, but with separate juries deciding each defendant's guilt. For both trials, the People tried Clark on a theory of felony murder.
As explained in People v. Clark et al., supra, B099630, Clark and Robey were convicted of first degree felony murder, and a jury convicted Robey of second degree robbery. The trial court sentenced each defendant to a state prison term of 25 years to life, plus a consecutive term of five years for each defendant's respective robbery conviction. Clark and Robey appealed their judgments of conviction. Although reversing the robbery convictions as barred by the statute of limitations, this court, concluding the felony-murder convictions remained unaffected, affirmed the murder convictions.
C. Clark's Petition for Resentencing
In March 2019 Clark, representing himself, filed the petition that is the subject of this appeal. He asserted an information was filed allowing the prosecution to proceed under a theory of felony murder using the robbery charge as a predicate, he was convicted of second degree robbery and first degree murder, and he could not be convicted of murder because of changes to section 188 or 189. Following the appointment of counsel to represent Clark and additional briefing by the prosecutor and Clark's counsel, the superior court issued an order to show cause. The court observed that it was the People's burden to prove Clark's ineligibility for relief beyond a reasonable doubt.
Clark's initial attorney moved to be relieved as counsel. In January 2020 the court appointed new counsel to represent Clark. After further briefing by the prosecutor and Clark's new attorney, the court again issued an order to show cause.
The court held an evidentiary hearing on May 11, 2022 and July 13, 2022. Neither the prosecutor nor Clark's counsel presented live witness testimony. Exhibits admitted into evidence included the transcripts of the trial testimony of 20 witnesses that were part of the appellate record in People v. Clark et al., supra, B099630. After hearing argument, the court took the matter under submission.
On August 19, 2022, the court denied Clark's petition. It expressly found beyond a reasonable doubt that Clark was a major participant in the underlying robbery and that he acted with reckless indifference to human life. The court concluded by stating it "finds beyond a reasonable doubt that [Clark] is not entitled to resentencing pursuant to section 1172.6."
DISCUSSION
Prior to the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), the felony-murder doctrine provided that, "'when the defendant or an accomplice kill[ed] someone during the commission, or attempted commission, of an inherently dangerous felony,' the defendant could be found guilty of the crime of murder, without any showing of 'an intent to kill, or even implied malice, but merely an intent to commit the underlying felony.'" (People v. Strong (2022) 13 Cal.5th 698, 704 (Strong).) With the passage of Senate Bill 1437, the Legislature amended the felony-murder rule "'to more equitably sentence offenders in accordance with their involvement in homicides.'" (People v. Curiel (2023) 15 Cal.5th 433, 448 (Curiel).)
Effective January 1, 2019, Senate Bill 1437 narrowed the scope of the felony-murder rule by adding subdivision (e) of section 189. (See Curiel, supra, 15 Cal.5th at p. 448; People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 930.) Under section 189, subdivision (e), defendants who participated in a specified felony in which a death occurred and "who were neither actual killers nor acted with the intent to kill [could] be held liable for murder only if they were 'major participant[s] in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of . . . Section 190.2'-that is, the statute defining the felony-murder special circumstance." (Strong, supra, 13 Cal.5th at p. 708; see Curiel, at p. 448.)
Robbery is among the specified felonies falling within the scope of section 189, subdivision (e). (§ 189, subds. (a), (e).)
Section 1172.6 provides for defendants convicted of felony murder under the former law to petition for an order vacating their convictions and resentencing them on remaining counts if they could not now be convicted of murder because of the changes made to section 188 or 189. (§ 1172.6, subd. (a).) If the petitioner makes a prima facie showing of entitlement to relief under section 1172.6, the court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and to resentence the petitioner on any remaining counts. (§ 1172.6, subd. (d)(1).)
In addition to amending section 189 by adding subdivision (e), Senate Bill 1437 "amended section 188 to provide that, when the felony-murder rule does not apply, a principal in the crime of murder can only be convicted where he or she acted 'with malice aforethought,' and '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.'" (People v. Berry-Vierwinden, supra, 97 Cal.App.5th at p. 930; see Curiel, supra, 15 Cal.5th at p. 449 [referring to the "new requirement" imposed by Senate Bill 1437 and codified at section 188, subdivision (a)(3), that a defendant have acted with malice aforethought to be convicted of murder, except in cases of felony murder]; § 188, subd. (a)(3) ["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 solely on his or her participation in a crime"].)
At the evidentiary 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 is guilty of murder . . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3); see Curiel, supra, 15 Cal.5th at p. 450.) Not only may the court consider "evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony," as well as the "procedural history of the case recited in any prior appellate opinion," but the prosecutor and petitioner may also offer new or additional evidence. (§ 1172.6, subd. (d)(3).)
"Ordinarily, a trial court's denial of a section 1172.6 petition is reviewed for substantial evidence. [Citation.] Under this standard, we review the record '"'in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'"'" (People v. Reyes (2023) 14 Cal.5th 981, 988; accord, People v. Pittman (2023) 96 Cal.App.5th 400, 414 ["'[i]n reviewing the trial court's findings for substantial evidence, we . . . "'"examine the entire record in the light most favorable to the judgment"'"'"]; see People v. Banks (2015) 61 Cal.4th 788, 804 (Banks) [in a case in which the trier of fact found in favor of the prosecution, "we must examine the record independently" and "'"in the light most favorable to the prosecution"'" for substantial evidence "that would support a finding beyond a reasonable doubt"].) "We must 'presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial.'" (People v. Montanez (2023) 91 Cal.App.5th 245, 271; accord, People v. Clark (2016) 63 Cal.4th 522, 610 (Clark).)
B. Substantial Evidence Supports the Superior Court's Finding Beyond a Reasonable Doubt That Clark Was a Major Participant in the Robbery Acting with Reckless Indifference to Human Life
1. Relevant factors
For purposes of section 189, subdivision (e), the Supreme Court's decisions in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522 "both substantially clarified the law governing findings under Penal Code section 190.2, subdivision (d)," by refining what it means for a defendant to be a major participant in the underlying felony and to have acted with reckless indifference to human life. (Strong, supra, 13 Cal.5th at pp. 703, 706-707.) Banks and Clark identified "a nonexhaustive list of [relevant] considerations," with In re Scoggins (2020) 9 Cal.5th 667 (Scoggins) subsequently providing additional guidance. (Strong, at pp. 705-707; see People v. Cody (2023) 92 Cal.App.5th 87, 105-106; People v. Ramirez (2021) 71 Cal.App.5th 970, 986.)
In Banks, the Supreme Court listed the following as "[a]mong those factors" that may be considered in determining "whether the defendant's participation . . . was sufficiently significant to be considered 'major'": "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Banks, supra, 61 Cal.4th at p. 803, fn. omitted; see People v. Cody, supra, 92 Cal.App.5th at pp. 105-106.)
"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."'" (Scoggins, supra, 9 Cal.5th at p. 677; see People v. Cody, supra, 92 Cal.App.5th at p. 106.)
Although "'[a]wareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient' to establish reckless indifference to human life" and "'only knowingly creating a "grave risk of death"' satisfies the statutory requirement," "[r]eckless indifference to human life is 'implicit in knowingly engaging in criminal activities known to carry a grave risk of death.'" (Scoggins, supra, 9 Cal.5th at pp. 677, 676.) "Examples include 'the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property.'" (Id. at p. 676.) Reckless indifference "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; accord, Strong, supra, 13 Cal.5th at p. 706; Scoggins, at pp. 676677.)
As the Supreme Court explained in Clark, supra, 63 Cal.4th at pages 618 to 623 and more recently summarized in Strong, the factors relevant to a determination whether the defendant acted with reckless indifference to human life include "use of or awareness of the presence of a weapon or weapons, physical presence at the scene and opportunity to restrain confederates or aid victims, the duration of the crime, knowledge of any threat the confederates might represent, and efforts taken to minimize risks." (Strong, supra, 13 Cal.5th at p. 706; see Scoggins, supra, 9 Cal.5th at p. 677.) For the court's determination of reckless indifference, like any of the factors for major participation (Banks, supra, 61 Cal.4th at p. 803), "'"[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient."'" (Scoggins, at p. 677.) "We analyze the totality of the circumstances to determine whether [the defendant] acted with reckless indifference to human life." (Ibid.)
2. Substantial evidence supports the superior court's finding that Clark was a major participant in the robbery
Clark contends substantial evidence did not support the superior court's finding that he was a major participant in the robbery. The record does not support Clark's contention. As the superior court found and ample evidence supports, Clark planned the robbery that led to Hayes's death. In the court's words, Clark "directed the prostitutes to lure the victim to the hotel room"; the "entire scheme was [Clark's] idea." Clark also supplied the only gun used in the robbery; was present in the hotel room where the killing occurred; participated in the attack leading to Hayes's death, including by hitting the victim on the side of the head with the gun; and failed to alert anyone or otherwise provide aid to Hayes, as shown in part by the fact Hayes's body, handcuffed and gagged, was not discovered until the morning. Regardless of whether, as Clark asserts, it was Robey and not Clark who was the actual killer, Clark failed to take action to restrain his confederate in the robbery. After Hayes had been attacked and strangled, Clark stole from Hayes and stated, "[W]hat you give a fuck if we killed him or not?" There was more than enough evidence for the court to find beyond a reasonable doubt that Clark was a major participant in the robbery. (See, e.g., People v. Mitchell (2022) 81 Cal.App.5th 575, 591 [defendant was a major participant in the robbery where he "helped decide to rob, helped plan the robbery technique, and helped select the victim"; was "on the scene from start to finish"; "helped with the gun and split the proceeds equally with the shooter"; and "was a full partner in crime"]; see also People v. Nieber (2022) 82 Cal.App.5th 458, 477 [defendant's "presence at, and participation in, the underlying felony," as well as failing to render aid to the murder victim and leaving other victims bound with faces covered, supported finding defendant was a major participant].)
Because the actual killer is liable for murder under section 189, subdivision (e)(1), the killer is not entitled to relief under section 1172.6. (See § 1172.6, subd. (a)(1), (3).)
Clark's arguments show he misapprehends the court's ability to rely not only on direct evidence but also circumstantial evidence, as well as reasonable inferences from the evidence. (See People v. Navarro (2021) 12 Cal.5th 285, 339 ["'"[s]ubstantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence"'"]; People v. Montanez, supra, 91 Cal.App.5th at p. 271.) For example, although he acknowledges he voiced the plan to rob Hayes, he argues there was no evidence that he came up with the idea. The court's finding that it was Clark who planned the robbery could be reasonably inferred from the entirety of the circumstances: Not only did Clark give Candy and Coco instructions to follow when discussing the robbery, but he was also Candy's and Coco's pimp; the robbery plan relied on the two women's employment as sex workers; it was Clark's idea to go to the hotel on the night of the robbery; it was Clark who drove the group there in his car; and after the robbery, it was Clark who had charge of the stolen credit cards.
Similarly, Clark contends there was no evidence the gun that he had put in his waistband when he and Robey got out of the car to go to Hayes's hotel room had actually been brought to the room and used to hit the victim. He points out the court had merely "presum[ed]" the gun had been used for that purpose. However, there was evidence from which the court could reasonably infer that Clark's gun had been used, as the court found, "to strike the victim in the head": When he returned to the car, Clark said he had "bust[ed]" the victim on the side of the head, and the autopsy showed the nature of the wound at the right side of Hayes's forehead was consistent with Hayes having been hit with the butt of a gun.
Clark argues he was not a major participant in the robbery because there was no evidence he, as opposed to Robey, strangled Hayes or otherwise engaged in any actions that caused Hayes's death. The court, however, need not have found he was the actual killer to determine he was a major participant. (See Strong, supra, 13 Cal.5th at p. 708; see also § 189, subd. (e).) There was evidence from which the court could reasonably infer that Clark actively participated in attacking and beating Hayes during the robbery, including Clark's own statement that Clark had hit Hayes on the side of his head; Hayes's size and strength and the nature and extent of his injuries, indicating more than one person had been required to subdue and restrain him after a violent struggle; and DNA testing results that showed Clark could not be excluded as a contributor to the hairs collected from Hayes's body and blood stains found at the scene. By actions that included planning the robbery and participating in the attack that led to the killing, Clark played a prominent role in Hayes's death.
Clark's other arguments essentially require us to reweigh the evidence. We will not do so. (See, e.g., People v. Cody, supra, 92 Cal.App.5th at p. 112 ["[o]ur role is not to reweigh the evidence"]; see also People v. Reyes, supra, 14 Cal.5th at p. 988 [under substantial evidence standard of review, we review the record in the light most favorable to the judgment]; Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1046, fn. 4 ["while petitioner advocates the substantial evidence standard of review, his presentation of the evidence violates that standard because he presents the evidence in the light most favorable to his claim rather than to the trial court's order"].)
3. Substantial evidence supports the superior court's finding that Clark acted with reckless indifference to human life
Substantial evidence also supports the court's finding beyond a reasonable doubt that Clark acted with reckless indifference to human life. That finding relies on much of the same evidence as the court's finding he was a major participant. (See Clark, supra, 63 Cal.4th at pp. 614-615 [referring to "the interrelationship between the two elements" and the "'significant[] overlap'" in the requirements for being a major participant and having reckless indifference to human life]; People v. Cody, supra, 92 Cal.App.5th at p. 113 [major participant finding is "itself [ ] supportive" of reckless indifference finding].) As discussed, Clark planned the robbery and provided and used the only gun; was physically present in the hotel room where Hayes was killed; failed to restrain Robey; and, rather than provide aid to the victim or attempt to minimize the risks of violence, attacked and stole from Hayes and made callous remark(s) about Hayes's death. (See Strong, supra, 13 Cal.5th at p. 706 [nonexhaustive factors for reckless indifference to human life include use of or awareness of the presence of a weapon, physical presence at the scene, opportunity to restrain confederates or aid victims, and efforts taken to minimize risks]; Clark, at p. 618 ["[a] defendant's use of a firearm, even if the defendant does not kill the victim . . ., can be significant to the analysis of reckless indifference to human life"]; People v. Williams (2020) 57 Cal.App.5th 652, 664 [defendant "was present in sufficient proximity '"to observe his cohorts so that it is fair to conclude that he shared in their actions and mental state"'"]; People v. Douglas (2020) 56 Cal.App.5th 1, 10 [reckless indifference to human life shown in part where defendant "displayed no interest in moderating violence or in aiding his bloody and suffering victim"; "[r]ather, [defendant] picked [the victim's] pocket" and showed no remorse in his immediate reaction to the violence].)
The duration of the underlying felony is also a factor relevant to a reckless indifference finding. (See Strong, supra, 13 Cal.5th at p. 706; Clark, supra, 63 Cal.4th at pp. 620-621.) The People, relying in part on the testimony of a night clerk at the hotel's front desk to show Candy, Clark, and Robey left the hotel room at approximately 3:00 a.m., assert in their respondent's brief that Clark and Robey were in Hayes's room for about two hours. Clark contends the superior court relied on an estimate of the crime lasting 10 to 15 minutes. Specifically, the court stated, "It is unclear exactly how long the robbery lasted, but it was estimated at 10 to 15 minutes."
The court did not mention the night clerk's testimony and did not state it found the night clerk not credible.
Regardless of whether the court disbelieved the night clerk's testimony, determined the clerk's testimony failed to establish the robbery lasted until about 3:00 a.m., or merely overlooked it, there was substantial evidence that the duration of the robbery was at least 10 to 15 minutes. Clark does not dispute that. As the court found, and the evidence supports, Hayes had been handcuffed, and the robbery lasted a long enough time for Clark and Robey to fight Hayes and otherwise commit the acts leading to his death and to steal from him. This factor thus provides additional support for the court's finding of Clark's reckless indifference to human life. (See Clark, supra, 63 Cal.4th at p. 620 ["[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"]; see also People v. Cody, supra, 92 Cal.App.5th at p. 114 ["reasonable inference that [defendant and/or codefendant] spent more than a fleeting amount of time searching the property" supported finding of reckless indifference to life].)
Although knowledge of any threat the confederates might represent may also be relevant to determining whether Clark acted with reckless indifference to human life (Strong, supra, 13 Cal.5th at p. 706), the superior court essentially found there was no evidence to suggest that Clark was aware of any increased threat of harm posed by Robey. Nevertheless, after considering the other factors and relying on Supreme Court precedent for the principle that no one of the factors for determining reckless indifference is necessary, the superior court found beyond a reasonable doubt that Clark acted with reckless indifference to life. Clark fails to show the court erred in doing so.
C. Clark Fails To Establish the Superior Court Did Not Make a Finding Required by Section 1172.6
Section 1172.6, subdivision (d)(3), provides in part, "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 is guilty of murder . . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." Clark contends the superior court's order denying his petition should be reversed because the court failed to make the finding that the prosecution had proved beyond a reasonable doubt he was guilty of murder under California law as amended. We reject his contention.
"'"A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."'" (People v. Ruiz (2023) 97 Cal.App.5th 1068, 1081; see People v. Picazo (2022) 84 Cal.App.5th 778, 802 ["'"a trial court is presumed to have been aware of and followed the applicable law"'"]; People v. Therman (2015) 236 Cal.App.4th 1276, 1279 ["'"[w]e imply all findings necessary to support the judgment"'"].) "'"[I]t is the appellant's burden to affirmatively demonstrate error."'" (Picazo, at p. 802.)
At the section 1172.6 evidentiary hearing, the superior court told the prosecutor, "It's your job to point to me to the stuff on the record that you believe proves the defendant guilty beyond a reasonable doubt even under the new law." In denying Clark's section 1172.6 petition, the court expressly found beyond a reasonable doubt that Clark was a major participant in the underlying robbery, that he acted with reckless indifference to human life, and that he was not entitled to resentencing pursuant to section 1172.6. Although the court did not expressly state it found that the prosecution had proved beyond a reasonable doubt Clark was guilty of murder under California law as amended, the record fully supports it made that implied finding.
DISPOSITION
The superior court's order denying Clark's petition under section 1172.6 is affirmed.
We concur: FEUER, Acting P. J., MARTINEZ, J.
[*]Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.