The opinion
Filed 11/18/22 P. v. Brown CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B314614
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A020874)
v.
HOMER BROWN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Daniel C. Chang and John Yang, Deputy Attorneys
General, for Plaintiff and Respondent.
******
Homer Brown (defendant) pled guilty in 1982 to first
degree murder during the course of a liquor store robbery he
committed with a lifelong friend. In 2019, defendant sought to
vacate his sentence under Penal Code section 1172.6 (former
section 1170.95).1 After holding an evidentiary hearing, the trial
court denied the petition because it found, beyond a reasonable
doubt, that defendant had acted as a major participant in the
robbery who acted with reckless indifference to human life.
Defendant argues that this finding in not supported by
substantial evidence. He is incorrect, so we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crime
In the fall of 1979, defendant and his “lifelong friend,”
Lionel Tate (Tate), went on a spree of liquor store robberies.
During the lunch hour of November 30, 1979, defendant
1 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6 (Stats. 2022, ch. 58, § 10). For simplicity’s sake,
we will refer to the section by its new numbering only.
All further statutory references are to the Penal Code
unless otherwise indicated.
2 Because the convictions here resulted from a plea, we
derive the facts of the crimes from the preliminary
hearing transcript, which we judicially notice. (Evid. Code, §§
459, 452, subd. (c).)
2
and Tate entered El Camino Liquor in Long Beach, California.
The store was open to customers. Both defendant and Tate were
armed with guns. Defendant put a gun to the store owner’s head
and announced “it was a holdup” as Tate put a gun to the head of
another store employee. Defendant and Tate took the two store
employees as well as a few store customers to the store’s back
room and ordered them onto the floor using “abusive” language.
Defendant and Tate then escorted the owner at gunpoint to the
cash register. When the owner fumbled while trying to get the
register to open, one of the robbers pointed his gun at the owner
and said he was “going to blow [him] away” if he did not open the
register. Defendant and Tate then escorted the owner at
gunpoint to the store’s floor safe. Once that was emptied,
defendant and Tate walked the owner to the backroom, ordered
him to the ground, and told everyone on the ground, “Any one of
you move, we’ll shoot you.” They then locked their hostages in
the back room and left the store. The entire incident took “eight
to ten minutes.”
Around 7:30 a.m. the next morning, on December 1, 1979,
defendant and Tate entered the HRJ Liquor Store in Paramount,
California. The store was open to customers. As with the prior
robbery, both defendant and Tate were armed with firearms. As
with the prior robbery, both defendant and Tate at gunpoint
escorted everyone in the store—in this case, the store’s owner and
three customers—into the cooler in the back of the store and
ordered them to lie face down on the floor. When defendant and
Tate were unable to locate the money in the location the owner
said it would be, defendant and Tate kicked and beat him as he
lay on the ground. They eventually said, “Let’s get it over with,”
and, as with the prior robbery, escorted the owner at gunpoint to
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the cash register. Unlike the prior robbery, the owner of this
store had a firearm tucked into his waistband. When a new
customer walked in and distracted defendant and Tate, the
owner pulled out his gun and fired off three shots—two hit
defendant and one hit Tate. Either defendant or Tate shot the
owner once in the chest, and then walked up to him, put a gun to
the back of his skull, and shot him three times execution style.
Either defendant or Tate then said, “Let’s get the hell out of
here,” and fled the store. The entire incident took about 15
minutes.
B. Plea, conviction and appeal
The People charged defendant and Tate with (1) the
murder of the second liquor store owner (§ 187, subd. (a)), (2) the
attempted robbery of the second liquor store owner (§§ 664, 211),
and (3) six counts of robbery, as to the others from the two
robberies (§ 211). The People further alleged that defendant and
Tate personally used firearms in connection with each charged
crime (§§ 12022.5, 1206.06, subd. (a)(1)). As to the murder, the
People also alleged that the murder “was committed while the
defendant” or “an accomplice” “was engaged in . . . [the]
attempted commission of” a robbery (former § 190.2, subd.
(a)(17)(A)).
In October 1981, the matter proceeded to a preliminary
hearing, and the trial court sustained all of the charges.
On June 2, 1982, defendant pled guilty to murder and
attempted robbery and admitted the firearm-use allegations as to
both charges. The remaining counts were dismissed. The trial
court sentenced defendant to life in prison without the possibility
of parole on the murder count, and imposed but stayed a three-
year prison sentence on the attempted robbery charge.
4
Defendant appealed, and we affirmed the judgment in an
unpublished opinion.
II. Procedural Background
In January 2019, defendant filed a petition seeking to
vacate his murder conviction under section 1172.6 on the ground
that he was not the actual killer, did not aid and abet the actual
killer, and was not a major participant in the robbery who acted
with reckless indifference to human life.
In May 2021, the trial court held an evidentiary hearing
regarding defendant’s eligibility for relief under section 1172.6.3
Neither the People nor defendant presented any new evidence.
Instead, the parties argued whether the existing record
supported a finding that defendant was a major participant in
the robbery who acted with reckless indifference to human life, as
those terms were defined in People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
In a subsequently issued ruling, the trial court denied
defendant’s petition. The court indicated that it had considered
the parties’ motions and arguments, and reviewed the court file
and all available transcripts. Having reviewed the facts of the
case, the court found “that [defendant] was a major participant in
an armed robbery who was personally armed, personally entered
the store, and personally participated in the murder of the store
owner.” Specifically, the court found that defendant’s
“participation was substantial and greater than the actions of an
ordinary aider and abettor to a felony murder in that he was
3 The trial court summarily denied defendant’s petition, but
we reversed that summary denial and remanded for an
evidentiary hearing. (People v. Brown (Oct. 23, 2020, B301245)
[nonpub. opn.].)
5
instrumental in planning and directly perpetrating the felony.”
The court also found that defendant “acted with reckless
disregard for human life” and was “convicted of murder under a
still viable theory of murder.”
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in denying his
petition to vacate his murder conviction and to resentence him
under section 1172.6.
In 2018, our Legislature amended the definition of
“murder” in our State to preclude a jury from “imput[ing]” the
“malice” element of that crime “based solely on [a defendant’s]
participation in a crime.” (§ 188, subd. (a)(3).) Our Legislature’s
purpose was to ensure that “[a] person’s culpability for murder
[is] premised upon that person’s own actions and subjective mens
rea.” (Stats. 2018, ch. 1015, § 1(g).) As amended, liability for
murder is limited to persons (1) who are the actual killer, (2) who
aided and abetted the actual killer in the murder (that is, who
acted with the intent to kill), or (3) who were a major participant
in the underlying felony that resulted in the killing, but only if
they also acted with reckless indifference to human life. (§§ 188,
subd. (a)(3), 189, subd. (e); e.g., People v. Johns (2020) 50
Cal.App.5th 46, 58-59.)
Section 1172.6 is the procedural vehicle by which persons
convicted of murder in now-final judgments can seek to vacate
convictions that do not satisfy the now-current definition of
“murder.” Where, as here, a defendant files a facially sufficient
petition and the record does not otherwise foreclose relief as a
matter of law, the trial court must issue an order to show cause
and convene an evidentiary hearing. (§ 1172.6, subd. (c).) At the
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hearing, the People have the burden of proving to the trial court,
as an independent fact finder, that defendant is guilty of murder
under a still-valid theory. (§ 1172.6, subd. (d)(3).) The parties
have the option of introducing “new or additional” evidence, or
may choose to rely on the record of the prior proceedings. (Ibid.)
The trial court in this case found beyond a reasonable
doubt that defendant was guilty of murder under the still-valid
theory that he was a major participant in the robbery that
resulted in the store owner’s death and that he acted with
reckless indifference to human life. Defendant asserts that this
finding is unsupported by the record. In evaluating this claim,
we independently review the record to assess whether
“substantial evidence”—that is, “‘“evidence which is reasonable,
credible, and of solid value”’”—supports the trial court’s finding.
(People v. Nieber (2022) 82 Cal.App.5th 458, 476.) In so doing, we
view the evidence in the light most favorable to the court’s
finding, drawing all reasonable inferences in support of that
finding. (Ibid.)
I. Pertinent Legal Principles
In Banks, supra, 61 Cal.4th 788 and Clark, supra, 63
Cal.4th 522, our Supreme Court more precisely defined when a
person qualifies as a “major participant” who acts with “reckless
indifference to human life.”
Under Banks and Clark, a “major participant” in a burglary
or attempted robbery is someone whose “personal involvement” is
“substantial”; such a participant “need not be the ringleader,” but
his involvement must be “greater than the actions of an ordinary
aider and abettor.” (Banks, supra, 61 Cal.4th at pp. 801-
802; People v. Williams (2015) 61 Cal.4th 1244, 1281.) Courts are
to examine the totality of the circumstances when evaluating the
7
extent of participation, including several factors our Supreme
Court identified in Banks as relevant but not dispositive on the
issue: (1) the defendant/aider and abettor’s role in planning the
robbery; (2) his role in supplying or using lethal weapons; (3) his
awareness of the “particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other
participants”; (4) his presence at the scene of the killing and thus
whether he was “in a position to facilitate or prevent the actual
murder”; and (5) his actions after the use of lethal force. (Banks,
at p. 803; Clark, at p. 611.)
Under Banks and Clark, a defendant acts with reckless
indifference to human life when he ‘““knowingly engag[es] in
criminal activities known to carry a grave risk of death.’””
(Banks, supra, 61 Cal.4th at p. 801, quoting People v. Estrada
(1995) 11 Cal.4th 568, 577, quoting Tison v. Arizona (1987) 481
U.S. 137, 157-158.) This standard “has a subjective and an
objective” component. (In re Scoggins (2020) 9 Cal.5th 667, 677
(Scoggins).) To satisfy the subjective component, ‘“[t]he
defendant must be aware of and willingly involved in the violent
manner in which the [underlying felony] is committed,’ and . . .
must consciously disregard ‘the significant risk of death his or
her actions create.’” (Scoggins, at p. 677, quoting Banks, at p.
801.) The key is whether the defendant evinces “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.) To
satisfy the objective component, the risk of death ““‘must be of
such a nature and degree that, considering the nature and
purpose of the [defendant’s] conduct and the circumstances
known to him[], its disregard involves a gross deviation from the
8
standard of conduct that a law-abiding person would observe in
the [defendant’s] situation.””’ (Scoggins, at p. 677, quoting Clark,
at p. 617.)
Our Supreme Court has identified a number of
considerations bearing on whether a defendant has acted with
reckless indifference to human life. “No one of these
considerations is necessary, nor is any one of them necessarily
sufficient” (Banks, supra, 61 Cal.4th at p. 803); what matters is
the totality of the considerations (Scoggins, supra, 9 Cal.5th at p.
677). The considerations are: (1) “Did the defendant use or know
that a gun would be used during the [underlying] felony,” and,
relatedly, “[h]ow many weapons were ultimately used?”; (2) “Was
the defendant physically present at the crime,” such that he had
“the opportunity to restrain the crime or aid the victim?”; (3)
“What was the duration of the interaction between the
perpetrators of the [underlying] felony and the victims?”; (4)
“What was the defendant’s knowledge of his . . . confederate’s
propensity for violence or likelihood of using lethal force?”; and
(5) “What efforts did the defendant make to minimize the risks of
violence during the felony?” (Ibid., citing Clark, supra, 63
Cal.4th at pp. 618-623.)
II. Analysis
Substantial evidence supports the trial court’s findings that
defendant acted as a “major participant” in the robbery of the
second liquor store and that defendant acted with reckless
indifference to human life.
A. Major participant
Substantial evidence supports the trial court’s finding that
defendant had “substantial” “personal involvement” in the second
liquor store robbery.
9
Although there is no evidence regarding defendant’s precise
role in planning the robbery, the similarity of this robbery to the
robbery the day before supports a finding that defendant and
Tate had a plan—namely, take over the store by holding
everyone at gunpoint, escort all employees and customers to the
back of the store at gunpoint, and take the owner up front to
empty the register and/or safe. Further, the record—viewed in
the light most favorable to the trial court’s finding—also supports
the inference that defendant was to play the lead role in that
plan given that defendant was the one in the first robbery who
announced that “it was a holdup.”
Although there is no evidence as to who supplied defendant
and Tate with weapons, both of them carried firearms, those
firearms were loaded, and defendant and Tate repeatedly pointed
them at the liquor store owner and customers, impliedly
threatening to use them if anyone resisted; indeed, during the
first robbery, defendant and Tate explicitly threatened to shoot
people with their firearms if their hostages resisted.
There is also evidence that defendant was aware of the
“particular dangers posed by the nature of the crime, weapons
used, [and] past experience or conduct” of his cohort Tate. It is
well settled that “‘there is a greater window of opportunity for
violence’” when “a victim is held at gunpoint, kidnapped, or
otherwise restrained in the presence of perpetrators for prolonged
periods” (Clark, supra, 63 Cal.4th at p. 620; In re Taylor (2019)
34 Cal.App.5th 543, 558 (Taylor)), and here defendant and Taylor
held the store owner and customers at gunpoint for close to 15
minutes before one of them shot the store owner. This danger is
multiplied when, as here, the robbers elected to rob the store
during its normal business hours when there were more likely to
10
be customers who would also need to be restrained, thereby
further increasing the “obvious and extreme risks of lethal
violence.” (People v. Owens (2022) 78 Cal.App.5th 1015, 1024
(Owens).) What is more, defendant was subjectively aware of the
danger posed by Tate or by this circumstance generally because,
during the robbery the day before, either Tate or defendant
warned the robbery victims that they would “blow [them] away”
and “if [they] move, we will kill you”—words indicating no
hesitation to escalate the robbery into a murder, if need be. If it
was Tate who threatened death, then defendant was aware of
Tate’s propensity to kill; if it was defendant who threatened
death, then defendant himself was the one willing to kill.
(Owens, at pp. 1024-1025 [a defendant’s exposure to his cohort’s
conduct during a prior crime can impart knowledge of that
cohort’s propensity for violence].)
Defendant was present at the scene of the robbery the
entire time, and his co-equal or lead role in directing the victims
supports the finding that he could have either facilitated or
prevented the store owner’s murder; defendant chose to facilitate
it.
Lastly, defendant’s conduct after the use of lethal force was
to flee the scene rather than provide aid to the store owner either
he or Tate had shot execution style.
In the totality of the circumstances, substantial evidence
supports a finding that defendant played a “substantial”
“personal” role in the second liquor store robbery because he was
either one of two co-equal central figures in the robbery or was
the “lead” robber who directed Tate in their execution of the
robbery.
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B. Reckless indifference to human life
Substantial evidence supports the trial court’s finding that
defendant knowingly engaged in criminal activities known to
carry a grave risk of death by evincing a willingness to kill that
entailed a gross deviation from the standard of conduct that a
law-abiding person would observe, and hence acted with reckless
indifference to human life. Defendant knew that multiple loaded
guns would not only be possessed but also used to order around
the store owner and any customers because that was part of the
plan defendant and Tate followed during the first liquor store
robbery the day before. Based on the first robbery, defendant
also knew that he and Tate would have no compunction about
threatening to use those guns to “blow away” and “kill” anyone
who did not follow their instructions. Defendant was physically
present during the entire 15 minutes of the second liquor store
robbery and, for the reasons noted above, could have intervened
at any time to restrain Tate or aid the victim. The crime lasted
15 minutes while the liquor store was open to the public, during
which time both defendant and Tate restrained the store owner
and customers who happened to enter; as noted above, this
scenario posed “obvious and extreme risks of lethal violence.”
(Owens, supra, 78 Cal.App.5th at p. 1024.) Defendant either
exhibited his own propensity for violence—or knew of Tate’s
propensity—based on their threats, the day before, to “blow
away” and “kill” the victims of the first liquor store robbery. And
defendant took no efforts to minimize the risk of violence during
the robbery.
C. Analogous case
In key respects, the facts of this case mirror the facts in
People v. Bascomb (2020) 55 Cal.App.5th 1077, where the
12
defendant was found to be a major participant acting with
reckless indifference to human life. There, Bascomb and a cohort
forced their way into an apartment at gunpoint. (Id. at p. 1081.)
Bascomb held one individual at gunpoint for a few minutes while
the cohort entered a bedroom, briefly struggled with the
occupant, and shot him. (Ibid.) The two then fled. (Ibid.) In
assessing whether Bascomb acted with reckless indifference, the
court noted: “Bascomb was willingly involved in the violent
manner in which the robbery took place . . . . Bascomb didn’t just
watch without intervening as his accomplice accosted the murder
victim in his bedroom, he used his weapon to keep the other
victims at bay and thereby actively enabled the murder. Nor did
he help the victim once he had been shot, but instead fled. We
agree with the People that this sort of conduct easily meets our
state’s standard for what constitutes being a major participant
who acted with reckless indifference to human life.” (Id. at p.
1089.)
III. Defendant’s Arguments
Defendant resists our conclusion with what boils down to
five arguments. None has merit.
First, defendant argues that a person’s “participation” in an
armed robbery is not enough to establish that he was a major
participant who acted with reckless indifference to human life.
Relatedly, he argues that this was just a “garden-variety armed
robbery.” Defendant is correct that mere participation in an
armed robbery is not enough (In re Bennett (2018) 26 Cal.App.5th
1002, 1026 (Bennett); Banks, supra, 61 Cal.4th at p. 810; Clark,
supra, 63 Cal.4th at p. 616), but he seems to leap from that
proposition to the conclusion that no level of participation is
enough. But that is simply an incorrect statement of the law
13
because it would mean that armed robbers are categorically
immune from being major participants who act with reckless
indifference to human life. By the same token, whether or not
the robbery as a whole was a “garden-variety armed robbery” is
irrelevant because what matters is defendant’s particular role in
this particular armed robbery. Defendant was not the getaway
driver who waited around the corner while his cohorts robbed a
liquor store after hours. Instead, defendant was one of the two
robbers who followed a mutually agreed-upon plan to rob a liquor
store by entering that store armed with loaded guns, while the
store was open for business and thus anticipating the need to
restrain the store’s employees and any customers at gunpoint
while they forced the owner to open the cash register. For the
reasons explained above, defendant’s particular role in this
particular robbery qualifies him as a major participant who was
recklessly indifferent to human life.
Second, defendant disputes various parts of our Banks and
Clark analysis. He argues that his statements during the first
and second liquor store robberies that “it was a hold up” and “let’s
get it over with” were just “isolated statements.” Whether
“isolated” or not, they evince defendant’s leadership role in the
first robbery and his willingness to do whatever it takes to get
what he wants, which support the findings of his major
participation as well as his reckless indifference to human life.
He argues that there is no definitive evidence that he hurt
anyone during the second liquor store robbery (because he and
Tate had either successfully locked away or killed all percipient
witnesses who could have identified him or Tate as the actual
shooter). At best, that supports a finding that defendant may not
have been the “actual killer”; it does not immunize him from
14
liability as a major participant in the underlying robbery who
acted with reckless indifference to human life. What is more,
accepting defendant’s argument seems to mean that neither he
nor Tate are actually responsible for the store owner’s murder;
we decline to adopt a rule of criminal liability that creates a
loophole to liability for murder based on sequestering or killing
all possible witnesses. Defendant argues that he had no reason
to anticipate violence during the second liquor store robbery
because he and Tate had managed not to use force during the
first robbery, and that it was the second store owner’s sudden
and unexpected resistance that prompted the need for violence
during the second robbery; in other words, defendant suggests,
the resort to violence was really the victim’s fault. What matters,
however, is the recklessness with which defendant acted in
electing to do a takeover robbery of a store during business hours
with loaded guns; in this scenario, as courts have observed, there
is always a risk someone might resist and this is precisely why
this type of robbery poses “obvious and extreme risks of lethal
violence.” (Owens, supra, 78 Cal.App.5th at p. 1024.) To put it
differently, the fact that defendant managed to walk through a
proverbial gas-filled room with a lit match once without the room
exploding does not mean there was no risk of explosion when he
knowingly walked through with a lit match a second time.
Defendant argues that he had no opportunity to help the victim
or to stop the robbery because he himself had been shot twice and
thus needed medical attention and because there was no evidence
that he was within arm’s reach of Tate during the robbery. We
do not see how defendant’s interest in preserving himself
somehow excuses his callous indifference to the fate of the store
owner whom either he or Tate repeatedly shot in the back of the
15
head. And defendant was present in the store the entire time
with a loaded weapon; he had the means of restraining Tate
whether or not they were close enough to hold hands.
Third, defendant cites a variety of cases he says support a
finding in his favor. They do not, as they all involve very
different factual scenarios. Taylor, supra, 34 Cal.App.5th 543,
Bennett, supra, 26 Cal.App.5th 1002, and In re Miller (2017) 14
Cal.App.5th 960 (Miller) all involved the role of a defendant who
was not present at the scene of the robbery. (Taylor, at p. 559;
Bennett, at p. 1020; Miller, at p. 965.) Defendant in this case was
present at the scene, armed with a loaded gun, and actively
participating and directing the robbery itself as it was ongoing.
In In re Ramirez (2019) 32 Cal.App.5th 384, 390, the defendant
agreed with the plan to commit a carjacking and was in the
general vicinity when it went down, but he was not “close enough
to exercise a restraining effect on the crime or his colleagues” and
had no prior knowledge of “his cohorts’ likelihood of killing.” (Id.
at pp. 390, 405.) Defendant in this case was close enough to
restrain Tate, and knew—from the robbery the day before—of
Tate’s willingness to use violence to get what he wanted.
Fourth, defendant cites what he perceives as flaws in the
trial court’s analysis, such as the court’s statements that
defendant fired his weapon during the second store robbery or
that either he or Tate shot at a customer who tried to enter the
store in the midst of the robbery. Because we are independently
examining the substantiality of the evidence to support the trial
court’s findings, any errors in the trial court’s reasoning are
irrelevant; our independent analysis does not rely on any of the
purported missteps.
16
Lastly, defendant argues that the trial court erred in
“seemingly” relying solely on the summary of facts contained in
our prior appellate decisions rather than the preliminary hearing
transcript, and that the court did not cite to the passages of the
hearing transcript in support of its findings. This argument
ignores the trial court’s own statement that it reviewed “all
available transcripts” in making its findings; this is confirmed by
the fact that court also relied on the preliminary hearing
transcripts when it (erroneously) summarily denied defendant’s
petition. And there is no requirement that a trial court provide
the parties with page or line references to the evidence it relies
upon in coming to its findings in a section 1172.6 evidentiary
hearing. What is more, because we have independently read the
preliminary hearing transcript and conclude that it supports the
trial court’s finding, any procedural error here is harmless.
17
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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