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Name: People v. Underwood (2024) 99 Cal.App.5th 303
Case #: A162356
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 01/30/2024

Substantial evidence did not support trial court’s finding that petitioner acted with intent to kill or reckless indifference to human life where petitioner was present at the scene of a mugging but there was no evidence he knew his co-participant was armed or would use deadly force. Underwood was convicted of felony murder based on his participation in a robbery. He later sought resentencing under Penal Code section 1172.6. The trial court denied the petition after a (d)(3) hearing, finding that Underwood both directly aided and abetted the murder and that he was a major participant in the robbery who acted with reckless indifference. Underwood appealed. Held: Reversed with directions to vacate conviction and resentence Underwood. Although Underwood participated in a felony predicate to felony murder, the trial court’s finding that he knew his co-participant would kill was based on speculation. The trial court erroneously found that Underwood knew of the risk to human life based on his co-participant’s threat to kill, but taking property by force or fear is inherent in robbery and so a conditional threat to kill if property is not turned over does not establish an intent to kill. Moreover, the brief span of time between the co-participant’s threat to kill and his actual stabbing of the victim did not prove that Underwood shared in co-participant’s murderous intent. Turning to factors governing reckless indifference, no substantial evidence supported the trial court’s finding. There was no evidence that Underwood knew, until the last seconds of the robbery, that his co-participant had a knife, was dangerous, or would use a knife. In addition, the robbery was spontaneous and short. The balance of factors did not support the trial court’s finding beyond a reasonable doubt that Underwood acted with reckless indifference. [Editor’s Note: Agreeing with other Court of Appeal decisions, the court disagreed with Underwood’s argument that the court need not defer to the trial court’s factual findings because the findings were based on a cold record, not live testimony and associated credibility determinations.]