Opinion
B305378
08-12-2021
THE PEOPLE, Plaintiff and Respondent, v. ZOELEE ISAAC, Defendant and Appellant.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. BA099542 Stephen A. Marcus, Judge.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, ACTING P. J.
On August 6, 1996, a jury convicted defendant and appellant Zoelee Isaac of first degree murder (Pen. Code, § 187, subd. (a); count 1) with a robbery-murder special circumstance finding (§ 190.2, subd. (a)(17)), robbery (§ 211; counts 2, 4 & 5), assault with a firearm (§ 245, subd. (a)(2); counts 3, 7-10), possession of a firearm by a felon (§ 12022, subd. (a)(1); count 12), and conspiracy to commit robbery (§ 182, subd. (a)(1); count 13). As to counts 1 through 3, the jury found principal firearm use allegations to be true (§ 12022, subd. (a)(1)), and found both principal firearm and personal firearm use allegations to be true as to counts 4, 5, and 7 through 10 (§ 12022.5, subd. (a)). He was sentenced to 22 years eight months in state prison, plus life without the possibility of parole. On direct appeal, we modified defendant's sentence to strike a four-month principal armed enhancement attached to count 3 and affirmed the judgment as modified. (People v. Key (Aug. 5, 1998, B105415) [nonpub. opn.], pp. 3-4, 32 (Key).)
All further statutory references are to the Penal Code unless otherwise indicated.
On January 2, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. Over the People's opposition, the trial court found that defendant had established a prima facie case and held an evidentiary hearing pursuant to section 1170.95, subdivision (d). Following the presentation of evidence and argument, the trial court denied defendant's petition, finding that (1) he was a direct aider and abettor who had the intent to kill, and (2) he was a major participant in the crimes who acted with reckless indifference to human life.
Defendant timely appealed. On appeal, he argues that the trial court's order denying his section 1170.95 petition must be reversed because the trial court relied upon a material factual error, namely whether he was armed during the commission of the crimes, in denying the petition. Without that “fact, ” there is insufficient evidence that he either aided and abetted with intent to kill or was a major participant who acted with reckless indifference to human life. We are not convinced by defendant's arguments. Accordingly, we affirm the trial court's order.
FACTUAL BACKGROUND
I. The Home Bank murder and robbery (counts 1-3)
“On the morning of July 20, 1994, [Sonja] Key, [Timothy Thomas] Williams, [defendant], and one other man entered Home Bank. They were all armed. Key was wearing a wig. Williams, dressed in what appeared to be a brown United Parcel Service uniform, approached the bank guard Juan Corona. An argument and struggle for Corona's gun ensued. Key walked over to the two men. She began to struggle with Corona. She said, ‘Get him off me or I'll pop him.' Key shot Corona in the neck, and he subsequently bled to death. Key ordered everyone in the bank to the floor. [Defendant] and the fourth robber brandished their weapons and demanded money. They demanded that teller Jumpee Sue Martinez and corporate officer Roy Foster give them money from the teller drawers. They did so. The robbers took $2, 869 in all from unlocked teller stations and then fled in a stolen hot-wired van. They abandoned the van and were driven off in a Pontiac. The van contained wigs and a bucket of soapy water.” (Key, supra, B105415, at p. 6.)
II. The Gilmore Bank assaults and robbery (counts 4-10)
“On the morning of July 26, 1994, [Francis D.] Flowers, [defendant], Key and Tianay Robinson, ... all armed, entered the Gilmore Commercial and Savings Bank. All four were wearing wigs. As an elderly customer, Doris Ingber, was leaving the bank, Robinson threw her down and pushed her head to the floor. Then the four robbers announced that it was a holdup and demanded to know where the vault was. [Defendant] put a gun to the head of security guard Raymond Gomez, then threw him to the floor. Robinson shot Gomez as he lay on the floor. Flowers threatened the tellers at gunpoint and filled a grocery bag with $7, 580 from the tellers' drawers. Flowers demanded that teller Esmirna Lozano give him the money from her teller drawer. She did so. Flowers later slapped Lozano for saying she had no keys to teller Patsy Beene's drawer. Flowers and [defendant] pointed their guns at Patsy Beene, who at first refused to open her teller drawer. She later did so, and Flowers took the cash in the drawer. Flowers pointed his gun at Moses Aguilar, a teller, and demanded that he give him money. After Aguilar turned over his cash, Flowers ordered Aguilar to lie down on the floor.” (Key, supra, B105415, at pp. 6-7.)
“Either Flowers or [defendant] kicked open the door to the safe deposit area, where bookkeeper Ofelia Hovian was working. The robber held a gun to her head and he and Key demanded that Hovian show them where the money was. Hovian went under a desk, and the man kicked her in the side. Hovian showed the intruders where the safe deposit boxes were. The robbers fled in a hot-wired stolen blue Oldsmobile, which they later abandoned a few miles away. The Oldsmobile contained three white wet trash bags, one of which contained a soaked $1 bill.” (Key, supra, B105415, at p. 7.)
III. The Wells Fargo Bank conspiracy to commit robbery (count 13)
“On the morning of August 3, 1994, Williams, Robinson, and [defendant] were apprehended in a stolen hot-wired van within 200 feet of a Wells Fargo Bank. [William] Blackwell, Flowers, and Key were apprehended in a red Pontiac. Police, who had been watching defendants' activities, concluded that they were about to rob the bank. Key, Flowers, and Robinson had been wearing wigs when first seen, although they removed them before exiting the vehicles. Robinson, [defendant], Key[, ] and Flowers were all wearing heavy makeup. The police found loaded guns, a laundry basket with plastic trash bag liners filled with water, wigs, a pillowcase, and a police scanner and manual in the vehicles. They also found incriminating evidence in Key's apartment, from which the five had exited just before driving to the Wells Fargo Bank, and in [defendant's] residence.” (Key, supra, B105415, at p. 7.)
“Robinson, [defendant], and Blackwell gave statements implicating themselves in various of the events to police officers.” (Key, supra, B105415, at p. 8.)
IV. Court of Appeal prior opinion
On direct appeal, we affirmed the judgment. As is relevant to the issues raised in this appeal, we rejected defendant's claim that insufficient evidence supported the jury's finding that he acted with reckless indifference to human life. (Key, supra, B105415, at pp. 24-25.) “Here, the evidence showed that all of the Home Bank robbers were armed, not just the shooter. Key announced that she was going to shoot Corona unless someone ‘got him off her.' [Defendant] did nothing to prevent the shooting. After the shooting, the guard lay on the floor bleeding to death while the robbers gathered up cash before departing the bank. [Defendant] did nothing to come to his aid. There was sufficient evidence from which the jury could have concluded that [defendant] acted with reckless indifference to human life. [Citations.]” (Key, supra, B105415, at pp. 24-25.)
PROCEDURAL BACKGROUND
I. Defendant's section 1170.95 petition
On January 2, 2019, defendant filed a petition for resentencing and requested that counsel be appointed to represent him during the resentencing process. The trial court appointed counsel and requested briefing on the petition.
II. The People's opposition
On May 14, 2019, the People filed an opposition to defendant's petition. The People argued, inter alia, that defendant was not entitled to relief because both the jury at trial and the Court of Appeal on direct appeal found that he was a major participant who acted with reckless indifference to human life.
According to the People, they were tasked with proving that defendant was ineligible for resentencing beyond a reasonable doubt. And, they met that burden by proving that defendant was a major participant in the take-over robbery and murder of the bank's security guard. His conduct demonstrated his “active participation and reckless indifference to the victim's life as required by section 189, subdivision (e).” In support, they pointed out that defendant played a key role in the sophisticated plan to rob the bank. He and his crew took the bank's money and fled in a stolen van.
The People also asserted that defendant had to have been aware of the particular danger of his crime given that part of the plan was to take the security guard by surprise and then take his gun. And, defendant was in a position to facilitate or prevent the murder. He was present at the scene of the crime; Key told him that she was going to kill Corona if someone did not get him off of her; and he did not intervene or render aid to the dying man.
Attached to the opposition was a copy of Key, a copy of the jury verdict, and a copy of the jury instructions given at defendant's trial.
III. Defendant's response
Through counsel, defendant responded to the People's opposition. Among other things, counsel argued that defendant was entitled to an evidentiary hearing and that he was “eligible for resentencing under Section 1170.95 because he did not act with reckless indifference to human life through his role in the offense at issue.”
IV. Hearing on defendant's petition and trial court order
On February 19, 2020, the trial court determined that defendant had set forth a prima facie case for relief because the People had prosecuted him on a felony murder theory. It then proceeded into a hearing on the petition, pursuant to section 1170.95, subdivision (d).
The parties submitted on their briefs and whatever materials had been submitted by the parties to the trial court. Defendant did not testify, but counsel argued that defendant was “differently situated” from the other defendants in this case, including Williams, whose section 1170.95 petition had earlier been denied.
On May 4, 2021, we affirmed the trial court order denying Williams's section 1170.95 petition. (People v. Williams (May 4, 2021, B304345) [nonpub. opn.], at p. 1.)
After entertaining oral argument, the trial court denied defendant's section 1170.95 petition. It stated that defendant was “a major participant” who acted with “reckless indifference of life.” In so finding, the trial court relied upon evidence that “this was an armed takedown robbery of a bank” and “[t]here was no effort to minimize violence. They robbed it in the middle of the day. They had to know there was an armed security guard.” And, defendant had to have been aware “of the dangers of robbing a bank during working hours with an armed guard.”
Furthermore, defendant “was there, and he was present, and he was not outside as the getaway driver. He wasn't in the parking lot as is the case in [People v. Clark (2016) 63 Cal.4th 522, 611 (Clark)]. He was there in the bank. He was part of this well-orchestrated and planned robbery.”
The trial court also pointed to the evidence that the robbery was well planned: the robbers stole a car in the morning and then, after they left the bank, “within a short distance they switch[ed] cars.” “Not only do they do all those things, but they wear disguises.... [T]hey have buckets of water in the van. That's to deal with the dye that might be on the packets of money that they steal. They have wigs on. There are just all kinds of things that show that this [was] highly sophisticated.”
The trial court added: “[W]hile certainly I'm supposed to only focus on the facts of this particular bank robbery, which is the Home Bank robbery, it seems crazy to me that I'm supposed to absolutely ignore the fact that later on these guys commit a bunch of other robberies... [that] have these same features and factors.”
In addition, the trial court found that, “although this was not argued to the jury, ” defendant was a direct aider and abettor who acted with intent to kill.
After setting forth these reasons, the trial court denied defendant's petition.
DISCUSSION
I. Relevant law
Section 1170.95 provides a mechanism whereby people “who believe they were convicted of murder for an act that no longer qualifies as murder following the crime's redefinition in 2019[] may seek vacatur of their murder conviction and resentencing by filing a petition in the trial court.” (People v. Drayton (2020) 47 Cal.App.5th 965, 973.)
In order to obtain resentencing relief, the petitioner must file a facially sufficient section 1170.95 petition. (§ 1170.95, subds. (a)(1)-(3), (b)(1)(A).) If a petitioner does so, then the trial court proceeds to section 1170.95, subdivision (c), to assess whether the petitioner has made a prima facia showing for relief, thereby meriting an evidentiary hearing. (People v. Lewis (July 26, 2021, S260598) ___ Cal.5th ___ [2021 Cal.LEXIS 5238, at pp. *6-*7].)
At the evidentiary hearing, the parties may rely upon evidence in the record of conviction or new evidence to demonstrate whether the petitioner is eligible for resentencing. (§ 1170.95, subd. (d)(3).) The prosecution bears the burden of proving, “beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).) If the prosecution cannot meet its burden, and the petitioner prevails, he is entitled to vacatur of the murder conviction and resentencing as set forth in section 1170.95, subdivision (e).
II. The trial court properly denied defendant's petition for resentencing
The trial court properly denied defendant's petition for resentencing because at the evidentiary hearing, the trial court acted as an independent factfinder and determined, beyond a reasonable doubt, that defendant is guilty of murder under current law. And, the trial court's findings that defendant acted either as a direct aider and abettor with intent or a major participant with reckless indifference to human life are supported by substantial evidence.
In the respondent's brief, the People argue that we should affirm the trial court's order because he was not entitled to an evidentiary hearing in the first place; according to the People, defendant was ineligible for section 1170.95 relief as a matter of law. We need not decide this issue. As set forth below, the People proved “beyond a reasonable doubt” that defendant was a direct aider and abettor and a major participant in the crime who acted with reckless indifference to human life.
A. The trial court applied the correct legal standard
There is currently a split of authority as to whether a trial court may deny a section 1170.95 petition only if it finds the prosecution has proven, beyond a reasonable doubt, that the petitioner is guilty of murder under a still-valid theory. (Compare People v. Duke (2020) 55 Cal.App.5th 113, 123 (Duke), review granted Jan. 13, 2021, S265309 [holding that the prosecution need only prove “that the defendant could still have been convicted of murder under the new law-in other words, that a reasonable jury could find the defendant guilty of murder with the requisite mental state for that degree of murder [under current law]. This is essentially identical to the standard of substantial evidence, in which the reviewing court asks ‘“whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.... [¶]...” [Citation.]' [Citation]”] with People v. Lopez (2020) 56 Cal.App.5th 936, 942 (Lopez), review granted Feb. 10, 2021, S265974 [holding that the plain language of section 1170.95 requires “the prosecutor to prove beyond a reasonable doubt each element of first or second degree murder under current law in order to establish ineligibility”]; People v. Rodriguez (2020) 58 Cal.App.5th 227 (Rodriguez), review granted Mar. 10, 2021, S266652 [reaching same result albeit for a different reason]; People v. Clements (2021) 60 Cal.App.5th 597, 617-618, review granted Apr. 28, 2021, S267624; People v. Duchine (2021) 60 Cal.App.5th 798, 813-814; People v. Harris (2021) 60 Cal.App.5th 939, 952, review granted Apr. 28 2021, S267802; and People v. Hernandez (2021) 60 Cal.App.5th 94, 103.)
We find the reasoning in Lopez, Rodriguez, and like cases persuasive and agree with their conclusion that a trial court must act as an independent factfinder and determine whether the prosecution has established beyond a reasonable doubt that the petitioner is guilty of murder under the law as of January 1, 2019. (See also People v. Gentile (2020) 10 Cal.5th 830, 855 [“section 1170.95 requires the superior court to determine on an individualized basis, after considering any new or additional evidence offered by the parties, whether the defendant is entitled to relief”].)
Here, the trial court did just that.
B. The trial court's finding that defendant was a major participant who acted with reckless indifference to life is supported by sufficient evidence
Substantial evidence supports the trial court's finding that defendant was a major participant in the underlying robbery and acted with reckless indifference to human life. (Lopez, supra, 56 Cal.App.5th at pp. 953-954 [even if the independent factfinder standard applies at the evidentiary hearing, the standard of review on appeal is that of substantial evidence].)
1. Relevant law
The special circumstance statute (§ 190.2) contains an actus reus and a mens rea requirement. (People v. Banks (2015) 61 Cal.4th 788 (Banks).) With respect to the required conduct, the defendant must have substantial personal involvement, “greater than the actions of an ordinary aider and abettor to an ordinary felony murder.” (Id. at p. 802.) Relevant factors that may be weighed in determining whether an aider and abettor defendant is a major participant include (1) the role the defendant had in planning the criminal enterprise that led to the death; (2) the role the defendant had in supplying or using lethal weapons; (3) the defendant's awareness of particular dangers posed by the nature of the crime, weapons used or past experience or conduct of the other participants; (4) whether the defendant was present at the scene of the killing, in a position to facilitate or prevent the actual murder and whether his or her actions or inactions played a role in the death; and (5) what the defendant did after lethal force was used. (Clark, supra, 63 Cal.4th at p. 611; Banks, supra, at p. 803 [no one factor is necessary or determinative].)
With respect to mens rea, Clark expounded upon the meaning of “‘reckless disregard for human life, '” and set forth a similar nonexclusive list of factors to be used in making this determination, including: (1) the defendant's knowledge of weapons used in the crime; (2) how those weapons were used; (3) the number of weapons used; (4) the defendant's proximity to the crime; (5) her opportunity to stop the killing or aid the victim[s]; (6) the duration of the crime; (7) the defendant's knowledge of the killer's propensity to kill; and (8) the defendant's efforts, if any, to minimize the possibility of violence during the crime. (Clark, supra, 63 Cal.4th at pp. 616-623; see also In re Scoggins (2020) 9 Cal.5th 667, 676-677 [“[r]eckless 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'”].)
2. Analysis
Here, as the trial court concluded, the evidence establishes that defendant was a major participant in the crimes, and he acted with reckless indifference to human life. The trial court found that defendant was part of a “well[-]orchestrated and planned robbery, ” noting the following facts: (1) several of the robbers were armed; (2) they used a stolen van as the initial getaway car, which they abandoned and exchanged for a second getaway car; (3) the robbers, including defendant, used disguises; (4) the van water typically used by robbers to deal with dye-packs that banks put in stacks of cash; (5) each robber played a specific role; (6) neither defendant nor anyone involved in the robbery did anything to minimize violence, but instead emphasized violence in the manner in which they spoke to the victims; and (7) defendant later committed other robberies, which resembled the Home Bank robbery, with the same individuals. (See Key, supra, B105415, at p. 6.) That defendant was involved in a thwarted subsequent bank robbery using many of the same techniques as the Home Bank robbery supports the inference that defendant knew of and had a role in planning the robberies.
We can reach our conclusion without deciding whether defendant himself was armed. It follows that we need not reach defendant's claim that he received ineffective assistance of counsel.
Defendant asserts that Williams's role was to disarm the security guard and that shooting him was not part of the plan. There is no evidence regarding Williams's intent, and we cannot reweigh the evidence to support defendant's contention. (People v. Nguyen (2015) 61 Cal.4th 1015, 1055-1056.)
The evidence also supported the inferences that defendant knew that Corona was armed and knew that at least one of his fellow robbers were armed. And, “[a]nybody pulling down a takedown armed robbery of this bank during banking hours with a security guard... had to know that that involved a grave risk of death, and that's exactly what happened.” From this evidence, a factfinder could reasonably infer defendant's willingness to participate in a killing in order to successfully rob the bank, even if he did not specifically want someone to die during the course of the armed robbery. (In re Scoggins, supra, 9 Cal.5th at pp. 676-677.)
Moreover, defendant was present at the scene of the killing. He was in a position to facilitate or prevent the actual murder of Corona. In fact, when Williams was struggling with Corona over Corona's gun, Key yelled, “‘Get him off me or I'll pop him.'” (Key, supra, B105415, at p. 6.) Defendant could have stopped the struggle with Corona, or he could have stopped Key from shooting Corona. He did neither.
After Key shot Corona, defendant helped take the money. (Key, supra, B105415, at p. 6.) He did not assist Corona or call 911. (See Clark, supra, 63 Cal.4th at p. 619 [noting that a defendant present at the scene has the opportunity to assist the victim]; People v. Gonzalez (2016) 246 Cal.App.4th 1358, 1385-1386, affirmed in People v. Gonzalez (2018) 5 Cal.5th 186; People v. Proby (1998) 60 Cal.App.4th 922, 929 [defendant saw wounded victim but did not attempt to assist him or determine whether he was still alive and then took money from a safe]; compare In re Scoggins, supra, 9 Cal.5th at p. 678 [the defendant was not physically present at the crime scene and not in a position to intervene].)
Taken together, all of this evidence supports the trial court's finding that defendant was a major participant who acted with reckless indifference to life. (Clark, supra, 63 Cal.4th at pp. 616-623; compare In re Taylor (2019) 34 Cal.App.5th 543, 557-558 [insufficient evidence that the defendant acted with reckless indifference to human life when he did not have a gun, he did not supply the shooter with a weapon, it was inconclusive whether he even knew the shooter had a gun, there was no evidence that he planned an armed robbery, and there was no evidence that the robbery was going to become violent].)
Notably, in Key, we rejected defendant's claim that there was insufficient evidence of reckless indifference to life: “Here, the evidence showed that all of the Home Bank robbers were armed, not just the shooter. Key announced that she was going to shoot Corona unless someone ‘got him off her.' [Defendant] did nothing to prevent the shooting. After the shooting, the guard lay on the floor bleeding to death while the robbers gathered up cash before departing the bank. [Defendant] did nothing to come to his aid.” (Key, supra, B105415, at p. 24.)
Based on the foregoing, substantial evidence supports the trial court's finding that defendant was a major participant who acted with reckless indifference to life. (Clark, supra, 63 Cal.4th at p. 611; Banks, supra, 61 Cal.4th at p. 803.)
Defendant asserts that his codefendants' use of guns, his failure to prevent the shooting, and his failure to render aid did not elevate the risk to human life beyond that inherent in a garden-variety armed robbery. This argument amounts to nothing more than an impermissible attempt to relitigate the facts. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Because a rational trier of fact found beyond a reasonable doubt that defendant was a major participant to the robbery who acted with reckless indifference to human life, there is no basis to reverse.
C. Sufficient evidence supports the trial court's finding that defendant was an aider and abettor who acted with intent to kill
Substantial evidence supports the trial court's finding that defendant aided and abetted with intent to kill. (Lopez, supra, 56 Cal.App.5th at pp. 953-954.)
1. Relevant law
Guilt as a direct aider and abettor requires: (1) knowledge of the direct perpetrator's intent to commit the crime; (2) intent to assist in committing the crime; and (3) conduct that in fact assists in committing the crime. (People v. Perez (2005) 35 Cal.4th 1219, 1225; People v. McCoy (2001) 25 Cal.4th 1111, 1117.) The defendant must not only know the direct perpetrator's intent, he must share that intent. (People v. Beeman (1984) 35 Cal.3d 547, 560; People v. McCoy, supra, at p. 1118.)
Senate Bill No. 1437 “did not... alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily ‘know and share the murderous intent of the actual perpetrator.' [Citations.]” (People v. Offley (2020) 48 Cal.App.5th 588, 595-596.) “One who directly aids and abets another who commits murder is thus liable for murder under the new law just as he or she was liable under the old law.” (Id. at p. 596.)
Intent to kill for purposes of murder, also known as express malice, is shown when the assailant either desires the death or knows to a substantial certainty that death will occur. (§ 188, subd. (a)(1); People v. Smith (2005) 37 Cal.4th 733, 739 (Smith); In re M.S. (2019) 32 Cal.App.5th 1177, 1185.) Evidence of motive, although not required to establish intent to kill, is often probative of intent to kill. (Smith, supra, 37 Cal.4th at pp. 740-741.) Intent to kill may be inferred from the defendant's acts and the circumstances of the crime. (Ibid.)
The mental state required for implied malice murder-which also suffices to deny a section 1170.95 petition under the amended section 188 (see People v. Soto (2020) 51 Cal.App.5th 1043, 1057, review granted Sept. 23, 2020, S263939; People v. Clements, supra, 60 Cal.App.5th at p. 612)-represents a lower standard than intent to kill. (People v. Swain (1996) 12 Cal.4th 593, 602; People v. Olguin (1994) 31 Cal.App.4th 1355, 1379 [“the specific intent necessary for conviction of an aider and abettor in a murder would not be the specific intent to kill, but the intent to ‘encourage and bring about conduct that is criminal'”].) Implied malice murder requires knowledge that conduct endangers the life of another and a conscious disregard for life. (People v. Chun (2009) 45 Cal.4th 1172, 1181.)
Under the direct aiding and abetting theory, an aider and abettor's mental state must be at least that required of the direct perpetrator. “‘To prove that a defendant is an accomplice... the prosecution must show that the defendant acted “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” [Citation.]'” (People v. McCoy, supra, 25 Cal.4th at p. 1118.) It follows that to aid and abet an implied malice murder, the direct aider and abettor must intentionally commit, encourage, or facilitate life-endangering conduct with knowledge of the perpetrator's purpose and conscious disregard for life. (Id. at p. 1118 & fn. 1.)
2. Analysis
Viewing the evidence in the light most favorable to the judgment, as detailed above, substantial evidence supports the trial court's finding that defendant acted with intent to kill as a direct aider and abettor. Reasonable inferences could be drawn that Key intended to not just shoot, but kill Corona, and that defendant knew that she intended to do so. Therefore, the trial court's finding that defendant was ineligible for resentencing because he had the intent to kill was proper.
These same reasons support a finding that defendant acted with implied malice. That is, the facts detailed above constitute substantial evidence from which a trier of fact could reasonably infer that defendant knew that the plan was to disarm a security guard during a robbery; he knew that that plan was life-endangering; he engaged in that life-endangering conduct; and he acted in conscious disregard of Corona's life. Thus, the trial court's finding that defendant was ineligible for resentencing was also supported by substantial evidence that he acted with implied malice.
DISPOSITION
The trial court's order denying defendant's section 1170.95 petition is affirmed.
We concur: CHAVEZ, J., HOFFSTADT, J.