Trial court did not err in denying Penal Code section 1170.95 (now 1172.6) petition where there was substantial evidence petitioner was a major participant in the underlying felonies who acted with reckless indifference to human life. In 2018, Montanez petitioned to vacate his felony murder conviction pursuant to section 1172.6. The trial court denied the petition after a (d)(3) hearing, finding that Montanez was a major participant in the underlying robbery and sex crimes who acted with reckless indifference to human life. He appealed. Held: Affirmed. After analyzing relevant case law, the Court of Appeal applied the Banks/Clark factors and concluded substantial evidence supported the trial court’s findings. Montanez was part of a group of four assailants, including two gunmen, who captured three unsuspecting victims at gunpoint. Two victims were forced to the ground, bound, robbed, and detained for 25 minutes. The third victim was stripped nude, isolated from her companions, forced to commit sex acts with each of the four assailants at gunpoint, and then shot. Although there was no evidence Montanez used a firearm or supplied the weapons, and no evidence what role he played in planning the crimes, he was aware of the danger posed by the crimes and actively participated. Montanez had the ability and opportunity to help reduce the foreseeable risk his brother (who had a history of violence) would use lethal force against the victims, but he did nothing to help the murder victim before or after she was shot.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/D079296.PDF