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March 18, 2026 Get Citation Alerts Download PDF Add Note

People v. Garcia CA3

California Court of Appeal

• Citations: None known
• Docket Number: C098282A

• Precedential Status: Non-Precedential

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (26.8K)

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Combined Opinion

Filed 3/18/26 P. v. Garcia CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT

(Yolo)

THE PEOPLE, C098282

Plaintiff and Respondent, (Super. Ct. No. CR20157320)

v. OPINION ON TRANSFER

JORGE ANDRES TORRES GARCIA,

Defendant and Appellant.

Defendant Jorge Andres Torres Garcia pled no contest to voluntary manslaughter
after being charged with felony murder based on a killing occurring during a robbery.
Defendant then testified at his codefendant’s trial, who was thereafter acquitted of all
charges. Defendant later filed a resentencing petition under Penal Code1 section 1172.6,2

1 Undesignated section references are to the Penal Code.
2 Effective June 30, 2022, former section 1170.95 was recodified without
substantive change to section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed his

1
which the trial court denied after holding an evidentiary hearing. On appeal, defendant
argued the trial court erred because: (1) his codefendant’s acquittal for robbery
undermines the basis for finding him guilty of felony murder; (2) there was no substantial
evidence he was a major participant in the robbery who acted with reckless indifference
to human life; and (3) the trial court failed to consider his youth.
We affirmed, but our Supreme Court granted review and transferred the case back
to this court with directions to vacate our decision and reconsider the cause in light of
People v. Emanuel (2025) 17 Cal.5th 867 (Emanuel). The parties filed supplemental
briefs. Having reconsidered the matter in light of Emanuel, we again affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, along with codefendant Lance Richard Ornellas-Castro, was charged
with three felonies: murder with a robbery special circumstance allegation, attempted
second degree robbery, and conspiracy to commit a felony.
On January 17, 2017, defendant pled no contest to voluntary manslaughter,
robbery, conspiracy to commit a felony (robbery), and a firearm enhancement that a
principal was armed. The plea agreement included a stipulated term of 14 years if
defendant agreed to truthfully testify at Ornellas-Castro’s trial.
I
Trial Testimony
Defendant testified at Ornellas-Castro’s trial in February 2017. Defendant
testified he met Ornellas-Castro when they worked at the same fast-food restaurant.
Defendant knew Ornellas-Castro was a gang member and the two texted each other about
stealing from other people. This included pretending to buy drugs from someone then
rob them. Ornellas-Castro sent defendant a text saying: “[L]et’s set shit up. I want to

petition under former section 1170.95, but we will refer to the current section 1172.6
throughout this opinion.

2
take all this nigga’s shit, and then he’ll try to get some straps and I’ll catch him slippin
and take those too, ha ha ha.” Defendant explained they planned on taking this person’s
drugs and guns, i.e. “straps,” by pretending to want to buy drugs from him, but they never
acted on this idea.
In November 2015, defendant met Andrew Phauthoum at a friend’s house and
defendant bought cannabis from Phauthoum that day. Defendant texted Phauthoum about
a week later and they met in a parking lot so defendant could buy more cannabis.
Defendant knew Phauthoum was associated with a gang defendant was told not to mess
with.
In December 2015, defendant called Phauthoum to buy more cannabis from him.
Defendant told Ornellas-Castro about the deal and Ornellas-Castro wanted to join. On
the drive to meet Phauthoum, Ornellas-Castro and defendant discussed increasing the
order and Ornellas-Castro suggested they take the drugs from Phauthoum. Defendant
then called Phauthoum and ordered a total of six ounces of cannabis and a quarter ounce
of cocaine, worth roughly $800 total. Defendant explained they planned to tell
Phauthoum “to get in the car and just tell him to give [them] the drugs.” If Phauthoum
did not give them the drugs, they would show Phauthoum a small revolver in
Ornellas‑Castro’s possession. Defendant had seen Ornellas-Castro carry the gun every
day. When the prosecutor asked defendant to reiterate their intent, defendant testified
they intended to meet Phauthoum “[t]o rob him” by taking the drugs after flashing
Ornellas-Castro’s gun.
Defendant and Ornellas-Castro planned to meet Phauthoum in a grocery store
parking lot. Defendant was driving and told Ornellas-Castro to move from the passenger
seat to the back in case Phauthoum resisted them taking the drugs. When Ornellas-Castro
and defendant arrived at the grocery store parking lot for the exchange, it was night and
even though there were parking lot lights, the inside of the car was “[k]ind of dark.”
Phauthoum got into their car and sat in the front passenger seat next to defendant.

3
Phauthoum handed defendant a box with two bags of cannabis and said he was waiting
on a call for the cocaine. Defendant then introduced Phauthoum to Ornellas-Castro, the
two began talking, and then defendant heard a gunshot. Defendant looked over and saw
Phauthoum slouched with a bullet hole in his forehead. Defendant testified he didn’t
think he heard any argument but was “zoned out” looking at the cannabis.
After the gunshot, defendant drove away. Defendant asked what happened and
Ornellas-Castro said Phauthoum “flexed on him, like he was reaching for something.”
Defendant reached in Phauthoum’s pockets and found a cell phone, which he threw into a
river as they were driving over a bridge.
Defendant and Ornellas-Castro decided to dump Phauthoum’s body in the river
and defendant drove to a slough where he used to fish. When they got to the slough,
Ornellas-Castro pulled Phauthoum out of the car and then defendant heard a gunshot.
Defendant walked to the other side of the car and saw Ornellas-Castro checking
Phauthoum and taking off his clothes. Defendant and Ornellas-Castro then carried
Phauthoum’s body into the slough, drove back to Ornellas-Castro’s apartment, and tried
to clean the blood from the car. Defendant then split the cannabis with Ornellas-Castro
and went home; defendant planned to sell the cannabis.
The jury acquitted Ornellas-Castro of all charges.
II
Petition For Resentencing
On May 2, 2017, the trial court sentenced defendant pursuant to the plea
agreement to 14 years. On January 18, 2022, defendant filed a petition for resentencing
under section 1172.6, contending he was charged with murder but could not now be
convicted of murder due to changes to the murder statutes. The trial court issued an order
to show cause and held an evidentiary hearing on the petition on March 29, 2023.
Defendant’s counsel argued at the hearing the prosecution is precluded from arguing the
underlying robbery is valid due to the jury acquitting Ornellas-Castro of robbery.

4
Defendant’s counsel argued alternatively that defendant was not a major participant who
acted with reckless indifference to human life.
The trial court said it had reviewed the parties’ briefing and defendant’s testimony
at his codefendant’s trial. The trial court also reviewed defendant’s statements made to a
law enforcement official before Ornellas-Castro’s trial that were consistent with
defendant’s testimony at trial. But in these statements, defendant also told the officer
Ornellas-Castro told defendant he shot Phauthoum again when dumping his body because
Phauthoum “was moving.” Defendant also explained he was afraid of Ornellas-Castro
because “he’s kinda crazy sometimes. [¶] . . . [¶] When he’d drink[,] he’d get pretty
loud. Always, like, kinda like aggressive.” Defendant was further afraid because he had
heard stories of Ornellas-Castro shooting at someone at a supermarket and
Ornellas‑Castro asked defendant if he wanted to join his gang.
The trial court first found issue preclusion inapplicable under People v. Superior
Court (Sparks) (2010) 48 Cal.4th 1 (Sparks). The trial court then found, “[T]he record
supports a conclusion beyond a reasonable doubt that [defendant] was a major participant
and that he acted with reckless indifference to human life. Therefore, the [c]ourt does not
believe that he’s entitled to relief under [section] 1172.6.”
Defendant appeals.
DISCUSSION
I
Ornellas-Castro’s Acquittal Did Not Preclude Finding Defendant Ineligible
Defendant first argues the doctrine of issue preclusion or collateral estoppel
required finding at the section 1172.6 evidentiary hearing defendant did not participate in
a robbery because the jury in Ornellas-Castro’s trial acquitted Ornellas-Castro of robbery.
Defendant frames the issue as “whether the jury’s acquittal on the robbery charge

5
precluded the trial court [from] considering a post-conviction resentencing petition from
finding beyond a reasonable doubt that the robbery occurred.” We conclude it did not.
The trial court’s ruling and the parties dispute centers on our Supreme Court’s
opinion in Sparks, supra, 48 Cal.4th 1. In Sparks, our Supreme Court concluded, “[A]
verdict regarding one defendant has no effect on the trial of a different defendant. Courts
should determine the propriety of a prosecution based on that prosecution’s own record,
not a different record. Nonmutual collateral estoppel does not apply to verdicts in
criminal cases.” (Id. at p. 5.) The court explained finding otherwise would “have the
unfortunate effect of making collateral estoppel’s application turn on the happenstance of
which trial goes first,” which “would mean that, of two participants in an alleged criminal
enterprise, the one tried first would have only one trial in which to prevail—that
participant’s own trial; but the participant scheduled to be tried second might have two
trials in which to prevail—either the first or the second trial. If, instead, both participants
were tried together, neither could benefit from an inconsistent verdict. [Citation.] Such a
system would give the appearance of arbitrariness, not integrity.” (Id. at p. 16, italics
omitted.)
Further, nonmutual collateral estoppel would create a “one-way ratchet” that could
permit coconspirators tried later to benefit from an earlier coconspirator’s favorable
verdict or choose trial for themselves if the verdict was unfavorable. (Sparks, supra,
48 Cal.4th at pp. 16-17.) “All defendants may thus receive the benefit of the most
favorable verdict any jury might render (provided they time their trials correctly).
Nothing in our jury system suggests such a scale-tipping is either compelled or
beneficial.” (Id. at p. 17.) Conversely, “occasional inconsistent verdicts do not
undermine the integrity of the justice system.” (Id. at p. 16.)
Defendant contends Sparks is inapplicable because “the issue is not of two
competing jury verdicts. Rather, the issue is whether the trial court—in ruling on a
resentencing petition, not presiding over a trial—could make the finding that the

6
prosecution proved beyond a reasonable doubt that the underlying felony of robbery
occurred even where the jury found the actual killer not guilty of that robbery.” But this
framing ignores defendant’s plea. It was defendant’s own plea that convicted him of
robbery. And a plea “ ‘admits every element of the crime charged’ [citation] and ‘is the
“legal equivalent” of a “verdict” [citation] and is “tantamount” to a “finding.” ’ ”
(People v. Wallace (2004) 33 Cal.4th 738, 749.) Though Sparks dealt with jury verdicts,
there is no language limiting its application to verdicts rendered only by juries. (See
People v. Price (2017) 8 Cal.App.5th 409, 434-435 [applying Sparks when some
codefendants entered plea agreements].) Sparks is therefore applicable because
defendant’s plea resulted in a guilty verdict, which consequently bars using
Ornellas‑Castro’s acquittal to undermine defendant’s robbery conviction. (Sparks, supra,
48 Cal.4th at p. 5 [“a verdict regarding one defendant has no effect on the trial of a
different defendant”].)
Nothing in section 1172.6 creates an exception to Sparks. Defendant contends
“his no contest plea to robbery cannot be used to demonstrate that he committed the
underlying felony of robbery beyond a reasonable doubt.” But defendant provides no
authority indicating an exception to collateral estoppel or section 1172.6 applies that
would permit resentencing the underlying felony to avoid an inconsistent verdict created
by defendant’s own plea (and testimony) to the underlying felony. (Cf. People v. Burgess
(2023) 88 Cal.App.5th 592, 602, 606 [evaluating an underlying felony for sufficient
evidence following a § 1172.6 hearing when there had been a clarification of the law for
the felony, which excused collateral estoppel, and “the clarification of the law [was]
highly relevant to a fact finder’s determination of [the defendant’s] guilt for murder”].)
Finding otherwise would also severely undermine Sparks’s policy considerations.
Permitting Ornellas-Castro’s acquittal to release defendant from his plea could motivate
future defendants to take pleas before their codefendants go to trial to get the benefit of
the bargain, but then allow them the possibility to avoid this bargain if the codefendant is

7
acquitted. And it could also create a perverse motivation to testify in a manner to benefit
their codefendants and consequently themselves. This is a more extreme version of the
“one-way ratchet” described and rejected in Sparks. (See Sparks, supra, 48 Cal.4th at
pp. 16-17.)
We consequently conclude the trial court did not err in finding Ornellas-Castro’s
acquittal did not preclude denying defendant’s section 1172.6 petition.
II
The Trial Court’s Factual Findings Are Supported By Substantial Evidence
Defendant next argues the trial court’s finding that he was a major participant who
acted with reckless indifference to human life lacked substantial evidence. We disagree.
Section 1172.6 permits resentencing of defendants convicted of murder or
manslaughter where malice was imputed based solely on participation in a crime.
(§ 1172.6, subd. (a).) To deny defendant relief under section 1172.6 the trial court was
required to find beyond a reasonable doubt defendant was the actual killer, had the intent
to kill, or was both a major participant in the robbery and that he acted with reckless
indifference to human life. (People v. Strong (2022) 13 Cal.5th 698, 707-708.)
We review the trial court’s finding for substantial evidence. (People v. Njoku
(2023) 95 Cal.App.5th 27, 41-43.) Thus, we consider the entire record in a light
favorable to the judgment to determine “whether the evidence is such that a reasonable
trier of fact could have found the defendant guilty beyond a reasonable doubt.”
(People v. Bean (1988) 46 Cal.3d 919, 932; see People v. Clements (2022)
75 Cal.App.5th 276, 298.) If the record reasonably justifies the trial court’s findings, we
must affirm the conviction. (People v. Jennings (2010) 50 Cal.4th 616, 639.)
There is no argument or evidence defendant was the actual killer or had the intent
to kill so we review the trial court’s finding for substantial evidence defendant was both a
major participant in the robbery who also acted with reckless indifference to human life.

8
A
Defendant Was A Major Participant
Under our Supreme Court’s opinion in People v. Banks (2015) 61 Cal.4th 788,
803, to determine whether a defendant was a major participant in a robbery, a court
considers the following factors: (1) The defendant’s role in planning the crime that led to
the death; (2) the defendant’s use, knowledge, or production of the weapons used in that
crime; (3) the defendant’s awareness of the dangerousness of the crime or of the violent
tendencies of his, her, or their accomplice; (4) the defendant’s presence at the scene of the
killing, role in the death, and opportunity to prevent it; and (5) the defendant’s actions
after lethal force was used. “[N]one of these considerations is dispositive. Rather, ‘[a]ll
may be weighed in determining the ultimate question, whether the defendant’s
participation “in criminal activities known to carry a grave risk of death” [citation] was
sufficiently significant to be considered “major.” ’ ” (People v. Strong, supra, 13 Cal.5th
at p. 706.)
Defendant testified he and Ornellas-Castro intended to rob Phauthoum, and
defendant testified he was instrumental in planning this robbery. Defendant was the point
of contact with Phauthoum and had previously purchased drugs from him; Phauthoum
consequently would not have been at the scene of his death but for defendant. Defendant
also said he knew Ornellas-Castro had a gun and violent tendencies, stating defendant
was personally scared of him because of rumors Ornellas-Castro shot someone at a
supermarket, was a member of a gang, and could be “kinda crazy sometimes.”
Defendant was also at the scene of the crime, sitting immediately next to Phauthoum and
in front of Ornellas-Castro. Though defendant testified he was “zoned out” while the two
were talking, he still had the opportunity to intervene given the close proximity to and
apparent ability to overhear his armed coconspirator and the target of their armed robbery
sitting right next to him. After the killing, defendant immediately fled the scene of the
crime and aided in the disposal of Phauthoum’s cell phone and body, even selecting the

9
location because defendant had fished there. Defendant planned to sell the cannabis
taken from Phauthoum. This collectively is substantial evidence supporting all factors
for defendant being a major participant in the underlying homicidal robbery.
Defendant argues there was evidence he and Ornellas-Castro did not intend to rob
Phauthoum. Defendant relies on his testimony during cross-examination at
Ornellas‑Castro’s trial indicating uncertainty the two defendants intended to rob
Phauthoum. But this testimony conflicts with defendant’s explicit testimony he and
Ornellas-Castro intended “[t]o rob him,” along with defendant’s testimony to the
underlying conversations and preparations to effectuate this robbery. Again, from this
collective evidence we must conclude there was substantial evidence defendant was a
major participant in a robbery.
B
Defendant Acted With Reckless Indifference To Human Life
Under our Supreme Court’s opinion in People v. Clark (2016) 63 Cal.4th 522,
618-623, to determine whether a defendant acted with reckless indifference to human life,
the trial court considers the following factors: (1) The defendant’s knowledge that
weapons would be used; (2) the defendant’s presence at the scene and ability to prevent
the death or help the victim; (3) whether the defendant restrained the victim for a
prolonged period; and (4) the defendant’s knowledge of his, her, or their accomplice’s
violent tendencies. This analysis has “ ‘significant[] overlap’ ” with the major participant
analysis because “ ‘in general, for the greater the defendant’s participation in the felony
murder, the more likely that he[, she, or they] acted with reckless indifference to human
life.’ ” (Id. at pp. 614-615.)
As with the major participant analysis, there is evidence defendant knew
Ornellas‑Castro had violent tendencies and was armed for the robbery. Defendant
testified to Ornellas-Castro’s gang involvement, possible shooting at a supermarket, and
that the two exchanged texts about robbing another person of his guns. The robbery

10
underlying the murder was of a drug dealer defendant knew was a member of a gang he
was told not to mess with, and the gun played an important role in the robbery as the
source of force. Even though there was no evidence defendant restrained the victim for
any amount of time, defendant was in close proximity to the victim and the shooter,
giving him a potential opportunity to prevent the shooting.
On transfer, defendant contends our Supreme Court’s opinion in Emanuel, supra,
17 Cal.5th 867 establishes “the evidence was insufficient to support that [defendant]
acted with reckless indifference to human life”; we disagree. (Capitalization and
boldface omitted.) Emanuel has some similarities with the current case in that the victim
was shot during a drug deal. (Id. at pp. 877-878.) But in Emanuel, there was no
“evidence [the defendant] planned a robbery involving the use of weapons,” no “evidence
[the defendant] knew [the coconspirator] had a propensity for violence” (id. at p. 887), no
evidence the defendant even knew the coconspirator was armed (id. at p. 885), and when
the victim refused to give the drugs to the defendant and his coconspirator, the defendant
said, “[L]et’s go” (id. at pp. 878-879). Evidence demonstrated the coconspirator hit the
victim in the head with a gun, then went to shoot him in the leg but the victim hit the gun
and the coconspirator shot the victim in the neck, killing him. (Ibid.)
Applying the reckless indifference standard, our Supreme Court found a lack of
substantial evidence in Emanuel. (Emanuel, supra, 17 Cal.5th at pp. 885-896.) For the
first factor, the court found there was no evidence the defendant used or was aware of
weapons or his coconspirator’s likelihood for killing. (Id. at p. 885.) In defendant’s case,
this factor, as discussed above, weighs in favor of finding reckless indifference given
defendant’s knowledge of the weapon, agreement to use it in the robbery, and awareness
of Ornellas‑Castro’s gang membership and past history of violence.
For the second factor, our Supreme Court found the duration of the crime limited,
not more than 14 minutes, so this factor was neutral. (Emanuel, supra, 17 Cal.5th at

11
p. 886.) This is comparable to the present case, with the crime happening in a relatively
short timeframe.
For the third factor, our Supreme Court found the defendant in Emanuel made
efforts to minimize the risk of violence because there was no evidence there was a
planned robbery involving weapons and the robbery occurred in a public park in the
middle of the afternoon, so “the objective risk of violence posed by the crime and
reasonably anticipated by the perpetrator [was] far less grave.” (Emanuel, supra,
17 Cal.5th at p. 889.) In contrast, the crime here involved an armed gang member
robbing another gang member at night in a darkened car, exhibiting a meaningfully
heightened risk of violence compared to Emanuel. Defendant also told Ornellas-Castro
to sit in the backseat in case Phauthoum resisted, increasing the risk of violence.
For the fourth factor, physical presence and opportunity to restrain the
coconspirator or aid the victim, our Supreme Court found the defendant advocated they
leave the scene when confronted with the victim’s resistance. (Emanuel, supra,
17 Cal.5th at p. 891.) Further, the court found that though the defendant fled, this was
not necessarily indicative of a reckless indifference to human life as opposed to simply
avoiding arrest. (Id. at p. 893.) We do find this comparable to the present circumstance,
where defendant certainly could have done more to restrain Ornellas-Castro and aid
Phauthoum, especially given that Phauthoum was sitting right next to him. But, like
Emanuel, the shooting happened quickly and defendant’s acts after the shooting do not
necessarily exemplify a reckless indifference during the shooting, as opposed to a desire
to escape culpability after the fact.
In viewing the totality of the circumstances, our Supreme Court in Emanuel
concluded there was not substantial evidence of a reckless indifference to human life
because: “[T]he evidence shows [the defendant] set out to commit a robbery in a public
place in the middle of the afternoon. He was not armed, and the trial court found he did
not know [the coconspirator] was armed or likely to use lethal force. Accordingly, there

12
was nothing in the plan that ‘elevated the risk to human life beyond those risks inherent
in any armed robbery,’ much less a planned unarmed robbery. ([People v.] Clark, supra,
63 Cal.4th at p. 623.) The crime unfolded without a prolonged period of restraint. When
met with unexpected resistance, [the defendant] told [the coconspirator], ‘let’s go,’ and
began to walk away. This tends to show that [the defendant] was unwilling to engage in
further violence to accomplish the aims of the robbery.” (Emanuel, supra, 17 Cal.5th at
pp. 895-896.)
Conversely, here, substantial evidence shows defendant actively orchestrated an
armed robbery of someone associated with a gang by a member of another gang who was
potentially violent, using a firearm in a car at night. There was also no evidence
indicating defendant attempted to lessen the risk to life. Collectively, unlike in Emanuel,
this evidence exhibits a risk beyond that inherent in a generic armed robbery. (See
People v. Clark, supra, 63 Cal.4th at p. 623 [“But here 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”].) And instead supports finding “defendant knowingly create[d] a
serious risk of death.” (In re Taylor (2019) 34 Cal.App.5th 543, 560.)
We therefore conclude substantial evidence supported the trial court’s finding.
III
We Must Assume The Trial Court Considered Defendant’s Youth
We granted defendant’s request for supplemental briefing based on People v.
Jimenez (2024) 103 Cal.App.5th 994. Defendant argues courts must consider youthful
factors in considering whether the defendant was a major participant who acted with
reckless indifference to human life, which is an evolving issue clearly established only
after defendant’s hearing, and there is no evidence the trial court considered this issue.
We disagree.
The relevant line of cases begins with People v. Harris (2021) 60 Cal.App.5th 939,
filed February 16, 2021. In Harris, the appellate court reversed the trial court’s denial of

13
a section 1172.6 petition at the prima facie stage for a defendant who had been arrested
for his offense when he was 17 years old. (Harris, at pp. 944-945.) The court concluded
the defendant was not ineligible for relief as a matter of law under Banks and Clark
because, in part, given the defendant’s “youth at the time of the crime, particularly in
light of subsequent case law’s recognition of the science relating to adolescent brain
development [citations], it is far from clear that [the defendant] was actually aware ‘of
particular dangers posed by the nature of the crime, weapons used, or past experience or
conduct of the other participants.’ ” (Harris, at pp. 959-960; see id. at pp. 944-945, 948-
949.)
In In re Moore (2021) 68 Cal.App.5th 434, 439, filed August 21, 2021, the
appellate court had denied a writ of habeas corpus petition, from a defendant who was 16
years old at the time of the offense, challenging a robbery-murder special-circumstance
finding under Banks. Our Supreme Court ordered the appellate “court to consider
‘whether [the defendant’s] youth at the time of the offense should be one of the factors
considered under’ Banks and Clark.” (Moore, at p. 439.) The appellate court answered
the question in the affirmative, finding “a defendant’s youth is a relevant factor in
determining whether the defendant acted with reckless indifference to human life.” (Id.
at p. 454.) The appellate court concluded our Supreme Court has explained, “[I]n
determining whether a defendant acted with reckless indifference to human life, we must
‘consider the totality of the circumstances.’ [Citation.] Thus, the factors identified in
Banks and Clark are ‘nonexclusive.’ ” (Moore, at p. 454.)
In People v. Jones (2022) 86 Cal.App.5th 1076, 1090-1091, filed December 23,
2022, the appellate court concluded substantial evidence supported the trial court’s
finding that the defendant, who was 20 years old at the time of the offense, was a major
participant who acted with reckless indifference to human life under Banks and Clark.
However, the appellate court reversed because “[t]he Banks and Clark factors are not
exclusive. . . . [T]he totality of the circumstances necessarily includes the defendant’s

14
youthful age, which the record does not indicate the court considered.” (Jones, at
p. 1091; see id. at p. 1093.) The appellate court concluded the resentencing hearing had
taken place on March 10, 2021, and “Moore—the case holding squarely that a
defendant’s youth is one relevant factor—was not issued until months later in August
2021.” (Jones, at p. 1092.) Even though the previous cases “were premised on scientific
findings regarding adolescent brain development,” and the defendant was not an
adolescent at the time of the offense, the appellate court concluded “in the interest of
justice,” that “it is best for the trial court to have a meaningful opportunity to consider
[the defendant’s] youth as part of the totality of the circumstances germane to
determining whether he was a major participant who acted with reckless indifference to
human life.” (Id. at pp. 1092-1093.) The court consequently remanded for the trial court
to make this determination. (Id. at p. 1093.)
In People v. Oliver (2023) 90 Cal.App.5th 466, 476-477, 485, filed March 16,
2023, the trial court denied a section 1172.6 petition following an evidentiary hearing for
a defendant who committed the crime when he was 23 years old because it found beyond
a reasonable doubt the defendant was a major participant who acted with reckless
indifference to human life. The appellate court granted the defendant’s request for
supplemental briefing based on Jones. (Oliver, at p. 485.) After summarizing Harris,
Moore, and Jones, the appellate court “acknowledge[d] the trajectory of the legislation
and case law recognizing the psychological and neurological differences between
youthful and adult offenders, which both lessen the culpability of the young and increase
the likelihood of their rehabilitation.” (Oliver, at pp. 486-488.)
In People v. Pittman (2023) 96 Cal.App.5th 400, 409, 413, 416, 419, filed
October 13, 2023, the appellate court reversed a denial of a section 1172.6 petition after
an evidentiary hearing for a defendant who committed second degree murder when he
was 21 years old. The court looked at felony-murder cases, such as Oliver and Moore,
“to determine whether there [wa]s a reasonable possibility that the failure to consider [the

15
defendant’s] youth impacted the trial court’s decision,” which “ ‘stress two areas’:
youthful offenders’ ‘relative impulsivity’ and ‘their vulnerability to peer pressure.’ ”
(Pittman, at pp. 417-418.) The court concluded there was such a possibility. (Id. at
p. 418.) Thus, even though the defendant was 21 years old at the time, the court
concluded remand was appropriate because: “We do not find further factual distinctions
between this case and the felony-murder cases sufficiently compelling to overcome ‘the
interest[s] of justice’ served by remand.” (Ibid.)
Finally, in People v. Jimenez, supra, 103 Cal.App.5th 994, 999-1000, filed on
July 22, 2024, the trial court denied a first resentencing petition under section 1172.6 in
August 2021 and then a second petition in March 2023 at the prima facie stage, finding
“there was no legal basis entitling [the defendant] to a second petition for resentencing.”
The appellate court reviewed the above case law in addition to statutory changes in the
recent years providing ameliorative benefits to defendants who committed their offenses
when they were under 26 years old. (Id. at pp. 1001-1004.) “Considering this evolving
landscape, and applying de novo review,” the appellate court “reject[ed] the People’s
contention that [the defendant’s] second petition [wa]s barred by collateral estoppel.” (Id.
at p. 1004.) The court reasoned that even if the elements of collateral estoppel were met,
the equitable exception barring its application if there was a subsequent change in law
applied because of the evolution of considering youth based on the above cases. (Id. at
p. 1005.) The appellate court also concluded the law of the case doctrine did not apply
for similar reasons, based on “a significant intervening change in the law.” (Id. at
pp. 1006-1007.) Thus, the court stated, “[A]s in Jones, we conclude it is in the interest of
justice to give the trial court a meaningful opportunity to consider [the defendant’s] youth
‘as part of the totality of the circumstances germane to determining’ whether he acted
with malice under current law.” (Jimenez, at p. 1008.)
Defendant contends the record is silent on whether the trial court considered his
youth and we cannot assume the trial court did. Defendant argues, “[T]rial courts [that]

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presided over evidentiary hearings more recently did not have meaningful opportunities
to consider young adult offenders’ youth when determining culpability” because most of
the relevant cases “were decided shortly before [defendant’s] hearing and should be
considered recent, unanticipated changes to the law.” (Italics omitted; see People v.
Ochoa (2020) 53 Cal.App.5th 841, 853 [finding remand appropriate where “the record is
at the very least ambiguous as to whether the court understood its” sentencing discretion];
People v. Panozo (2021) 59 Cal.App.5th 825, 840 [“our record necessitates remand
because it is, at the very least, ambiguous as to whether the trial court was aware of its
statutory obligations”].)
Defendant’s evidentiary hearing occurred on March 29, 2023, after Harris, Moore,
Jones, and Oliver, but before Pittman and Jimenez. Most of these early cases did involve
defendants under the age of 18 years old, and Harris relied in part on “the science
relating to adolescent brain development.” (People v. Harris, supra, 60 Cal.App.5th at
p. 960.) But Moore stated its rule broadly as “a defendant’s youth is a relevant factor in
determining whether the defendant acted with reckless indifference to human life.”
(In re Moore, supra, 68 Cal.App.5th at p. 454.) There was no mention of adolescence
limiting this analysis. And the court in Jones found Moore sufficiently broad to apply to
that defendant’s case, who was 20 years old at the time of the offense, to reverse and
remand for the trial court to consider the defendant’s “youth as part of the totality of the
circumstances germane to determining whether he was a major participant who acted
with reckless indifference to human life.” (People v. Jones, supra, 86 Cal.App.5th at
pp. 1092-1093.) Even if we were to accept defendant’s premise that we cannot assume
the trial court here was aware of Jones because it was filed “just three months” prior to
the hearing, Jones relied on Moore, which was filed approximately 19 months before
defendant’s evidentiary hearing. (See Jones, at pp. 1079, 1092-1093; Moore, at p. 434.)
Thus, at the time of defendant’s evidentiary hearing there was established law that courts
can consider youth in the Banks and Clark analysis, even for defendants over 18 years

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old. This case is dissimilar for similar reasons from Jimenez, where the relevant hearing
there was the first one that occurred in 2021. (People v. Jimenez, supra, 103 Cal.App.5th
at p. 1005 [“The timing of the trial court’s August 2021 ruling on [the defendant’s] first
petition is similar to that in Jones”].)
Defendant has failed to establish a basis for us not to apply the fundamental
principle that trial courts are presumed to have applied the law “where the record does
not establish on its face that the trial court misunderstood the scope of that discretion.”
(People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.) We therefore must presume the
trial court was aware it could consider defendant’s youth when it found he was a major
participant who acted with reckless indifference to human life.
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing under
section 1172.6 is affirmed.

/s/
ROBIE, J.

We concur:

/s/
EARL, P. J.

/s/
RENNER, J.

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