P. v. Garrison

1
Filed 7/10/20 P. v. Garrison CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
TRACY LEEAN GARRISON,
Defendant and Appellant.
E072645
(Super.Ct.No. RIF095477)
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, Meredith S. White and
Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.

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I
INTRODUCTION
In 2018, the Legislature passed and the Governor signed into law Senate Bill
No. 1437 (Senate Bill 1437), legislation that prospectively amended the mens rea
requirements for the offense of murder and restricted the circumstances under which a
person can be liable for murder under the felony-murder rule or the natural and probable
consequences doctrine. (Stats. 2018, ch. 1015, § 4.) Senate Bill 1437 also established a
procedure permitting certain qualifying persons who were previously convicted of felony
murder or murder under the natural and probable consequences doctrine to petition the
courts that sentenced them to vacate their murder convictions and obtain resentencing on
any remaining counts. (Ibid.; see Pen. Code,1 § 1170.95)
Defendant and appellant Tracy Leean Garrison appeals from an order denying her
petition to vacate her first degree murder conviction in which she aided and abetted
codefendant Joshua Blaine Wahlert and obtain resentencing under the procedures
established by Senate Bill 1437. Garrison argues the trial court erred in summarily
denying her petition without first appointing her counsel, issuing an order to show cause,
or holding a hearing. She also contends her due process rights were violated when the
trial court erroneously relied on a materially inadequate record to reach its unsupported
findings. We reject these contentions and affirm the postjudgment order denying
Garrison’s section 1170.95 petition.
1 All future statutory references are to the Penal Code unless otherwise stated.

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II
FACTUAL AND PROCEDURAL BACKGROUND2
Wahlert lived in a recreational vehicle on property belonging to the father of his
friend, Jon Ramirez. Ramirez and his father lived in a house on the property. In the
months preceding the murder of Michael Willison, Garrison stayed intermittently with
Wahlert in the recreational vehicle. The two frequently argued and Garrison would leave
for several days at a time to be with Willison. According to Ramirez, Garrison was
confused about who she wanted to be with. (Wahlert I, supra, E035174, at p. 5.)
Two or three weeks before Willison was killed, Ramirez, Garrison, and Willison
went to the home of “Flako” to buy drugs. While Willison was inside Flako’s house,
Garrison talked to Ramirez about a plan to rob Willison. She said she wanted to give
Willison’s truck and other property to Wahlert and then the two would go to Las Vegas to
get married. She spoke to Ramirez about this plan on two other occasions. Wahlert
separately told Ramirez of his desire to “take everything that [Willison] had.” Another
time, Wahlert, who was jealous of Willison’s relationship with Garrison, said he wanted
to “beat [Willison] up.” Wahlert and Garrison sometimes referred to each other as
“Bonnie and Clyde.” (Wahlert I, supra, E035174, at p. 5.)
2 The factual background is taken from this court’s partially published opinion in
defendant’s prior appeal, case No. E035174. (People v. Wahlert (June 24, 2005,
E035174) [partial pub. opn.] (Wahlert I).) We took judicial notice of the appellate record
of Garrison’s and Wahlert’s criminal trial, case No. E035174. (Evid. Code, § 452,
subd. (d).)

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On January 14, 2001, Willison called Ramirez to get some help getting a couch
from storage into his truck. Willison arrived at Ramirez’s home about 10:30 p.m. that
night. The two smoked methamphetamine. As Ramirez was putting his shoes on to
leave with Willison, Wahlert and Garrison entered Ramirez’s home. Garrison brought in
a roll of duct tape and set it on the television set. Wahlert pulled out a gun and pointed it
at Willison. When Willison pleaded to spare his life and to not “leave [his] two boys
fatherless,” Wahlert told him to shut up and stuck a bandana in Willison’s mouth.
Garrison then taped Willison’s mouth and hands with the duct tape. She went through
Willison’s pockets, taking keys, a wallet, a necklace, and a ring, and threw them on a
couch. Ramirez was, as he said, “[f]reaking out” and telling them, “No, not here.”
Ramirez testified that he did not do anything to encourage them; but he did not do
anything to stop them “[b]ecause [Wahlert] had a gun.” According to Ramirez, Wahlert
never turned the gun toward Garrison, threatened her, forced her, or directed her to do
anything. It appeared to Ramirez that Wahlert and Garrison were “working together.”
(Wahlert I, supra, E035174, at pp. 5-6.)
Garrison took Willison’s keys. With Wahlert pointing the gun at Willison, the
three went to Willison’s truck. They drove to a secluded rural area where Willison was
severely beaten, repeatedly stabbed, and shot twice in the head. He died as a result.
(Wahlert I, supra, E035174, at p. 6.)
Wahlert and Garrison returned to Ramirez’s house in Willison’s truck about 20
minutes after they had left with Willison. Ramirez told them “to get their stuff and to

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leave.” Wahlert told Ramirez he was “sorry for letting that happen,” gave Willison’s ring
and necklace to Ramirez as “compensation to help you out for what went on,” and told
him, “[d]on’t say a word.” Wahlert took Willison’s other property, including a $20 bill
and credit cards. Wahlert told Garrison to pack their belongings, which she did. The two
then left in Willison’s truck. (Wahlert I, supra, E035174, at pp. 6-7.)
Later that morning, they tried to buy gas for the truck with one of Willison’s credit
cards, but the card was not approved. When the gas station attendant went to call the
police, Wahlert and Garrison left. (Wahlert I, supra, E035174, at p. 7.)
Wahlert and Garrison drove the truck to the home of Ed and Donna Geiger, where
Vernon Wood was staying. Wahlert told Wood that he had taken the truck “from a dude
that he killed.” He told Wood that he intended “to rob the guy . . . and stuff got out of
hand and he shot him, stabbed him[,] and split.” Wahlert showed Wood credit cards with
the name “Michael” on them. Wahlert asked Wood to help him bury the victim, but
Wood refused. He also asked Wood where he could get a 50-gallon drum. Wahlert left a
bag of clothes at the house, which Ed Geiger later burned. (Wahlert I, supra, E035174, at
p. 7.)
A couple of days after the murder, Wahlert called Ramirez to say that he and
Garrison were going to Las Vegas to get married and asked Ramirez to be the best man.
Later, Wahlert told Ramirez that he had shot Willison in the head and put a tarp over him.
He also told Ramirez where the body was located and asked Ramirez to “take care of the
body.” (Wahlert I, supra, E035174, at p. 7.)

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On January 20, 2001, Wahlert and Garrison were in Willison’s truck when
Wahlert displayed a gun to two women in another car. One of the women called her
husband, who called 911. Shortly afterward, Wahlert was arrested for brandishing a
firearm. The police found a .30-caliber gun in the truck and a live round in Wahlert’s
pocket. While being booked on this charge, Wahlert commented: “I’m looking at
60 years, they just haven’t found out the half of it yet.” (Wahlert I, supra, E035174, at
pp. 7-8, fn. omitted.)
In a subsequent search of the truck, police found, among other items, a pair of blue
jeans stained with Willison’s blood, a man’s empty wallet, a black bag, and a red bag. In
the black bag were checks on Willison’s personal bank account, a payroll check made out
to Willison, and business cards for Willison’s painting business. The red bag contained
credit cards in Willison’s name and a bandana. (Wahlert I, supra, E035174, at p. 8.)
A couple of days after Wahlert’s arrest, Garrison went to Ramirez’s house and told
him that they had to “go back out there and take care of the body.” (Wahlert I, supra,
E035174, at p. 8.)
On January 23, 2001, nine days after the murder, Willison’s body was found by a
jogger. The body was covered with a tarp or mat. Police found a piece of duct tape 20 to
30 feet away from the body. Impressions of tire tracks at the scene matched those of the
tires on Willison’s truck. After identifying the victim as Willison, police learned that
Willison’s car had been impounded in connection with the arrest of Wahlert for
brandishing a firearm. The police then examined the property that was taken from

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Wahlert when he was arrested and found Willison’s social security card, his contractor’s
state license card, and credit cards with Willison’s name on them. (Wahlert I, supra,
E035174, at pp. 8-9.)
While Wahlert was in custody on the charge of brandishing the firearm, Kevin
Duffy, an investigator for the Riverside County Sheriff’s Department, interviewed him
about Willison after he was advised of, and waived, his rights under Miranda v. Arizona
(1966) 384 U.S. 436. Audiotaped recordings of these interviews were played in the
presence of his jury only. Wahlert admitted shooting Willison twice, but stated that he
did so after Willison came at him waving a shotgun in his arms. After shooting Willison,
Willison grabbed Wahlert; Wahlert then stabbed Willison. Initially, he stated that
Garrison was not there and did not participate in the killing. Later, he said that Garrison
was there, but that she did not know or do anything. During one of the interviews,
Wahlert wrote a note to Willison’s children at the request of the investigator, in which
Wahlert apologized “for the pain that [he has] caused . . . .” (Wahlert I, supra, E035174,
at p. 9, fn. omitted.)
While Wahlert was being interviewed in the district attorney’s office, Garrison
was being questioned by an investigator at a sheriff’s station in Hemet. According to
Garrison, she, Wahlert, Willison, and Ramirez were in Ramirez’s house when Wahlert
pulled a gun on Willison and had Willison empty his pockets. Wahlert then told Willison
they were “gonna go for a ride.” Garrison said that she insisted on going with them.
After driving to a secluded location, Wahlert and Willison walked to a rocky area and

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argued. As Garrison started to get out of the truck, she heard two shots; then Wahlert
returned and told her to get into the truck. Sometime later, they returned to the scene to
find that Willison had moved about six feet and was alive. Wahlert then took a knife and
walked toward Willison; when he returned, he told Garrison that he had cut Willison’s
throat and broke his neck. Video and audio recordings of this interview were played only
to the Garrison jury. (Wahlert I, supra, E035174, at pp. 9-10, fn. omitted.)
During the day that both Wahlert and Garrison were being separately interviewed,
Duffy, who was interviewing Wahlert, and the investigator interviewing Garrison,
remained in “constant phone contact” with each other and arranged for Wahlert to
telephone Garrison. The telephone call was described by Duffy at trial as a “pretext
call.” Duffy informed Wahlert that they “found [Garrison]” and that Wahlert “need[s] to
talk to her and tell her to cooperate and tell the truth.” Duffy told Wahlert that Garrison
was in Hemet. Wahlert asked if she was “at the station,” to which Duffy responded,
“No, . . . some other house.” Duffy then dialed a number on a cell phone and handed the
phone to Wahlert. Wahlert was then connected with Garrison in the Hemet sheriff’s
station as Duffy left the room. In Hemet, an investigator was in the room with Garrison
listening to the phone call and “feeding her some questions at times.” The phone call was
recorded and the recording played to each jury separately. (Wahlert I, supra, E035174, at
pp. 10-11, fns. omitted.)
During the call, Wahlert and Garrison each made statements directly or indirectly
implicating themselves and each other. When Wahlert told Garrison that he had told

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Duffy that Willison “pulled a shotgun on” him, Garrison told him that she would “tell
[them] the truth before I told [them] that.” Wahlert admitted that he had lied “to keep
[Garrison] safe.” Wahlert told Garrison that she was “part of this” and, when Garrison
said that she “told them everything that happened from the time we left [Ramirez’s],”
Wahlert asked, “Did you tell them you told me to do it?” When Garrison denied that she
told Wahlert “to do it,” Wahlert responded, “Oh, ho! That’s cold. All right.” Later in
the conversation, Wahlert told Garrison that he would “take the fall for this.” Still later in
the conversation, there was an exchange that suggested that Wahlert killed Willison
because Garrison said she was afraid of Willison. When Garrison denied that she was
afraid of Willison, Wahlert declared, “My life’s over because I cared about you.”
Garrison responded by telling Wahlert, “Well then you shouldn’t have done it” and that
he “should’ve thought about that before.” Wahlert warned Garrison that the police
wanted to “make [her] an accessory,” to which Garrison explained, “[t]he only thing I
did, is I was there.” (Wahlert I, supra, E035174, at pp. 11-12.) The following exchange
then took place:
“WAHLERT: And you didn’t tell me to shoot him?
“GARRISON: Nope!
“WAHLERT: Oh, ho-oh! You don’t love me, do you?
“GARRISON: You know what does that have to with thing [sic]. I do love you.
But I never told you, I never told you to do anything. . . . I never told you to kill him. I
never told you to shoot him.

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“WAHLERT: OOOOhhhh! Tracey!!!! Tracey!!!!”3 (Wahlert I, supra, E035174,
at p. 12.)
Police also recorded one conversation between Wahlert and his mother and
another conversation with Wahlert, his mother, and an investigator, both of which were
played to his jury only. During these conversations, Wahlert stated he “did it because I
was scared of [Willison]. And I did it because . . . [Garrison] said she was scared of
[Willison].” He told his mother that Garrison told him to kill Willison. When the
investigator was present, Wahlert stated that Garrison had “used me to get this dude
done” and that Garrison “set me up to do this.” Following these interviews and
conversations, Wahlert told the investigator that Garrison “duct taped [Willison].”
(Wahlert I, supra, E035174, at pp. 12-13, fn. omitted.)
After Willison’s death, Garrison made admissions to several others about her
involvement in the killing. The night after the killing, she told Tiffany Walls that
Wahlert shot a man and that she slit the victim’s throat. Within a couple of days of the
murder, she told Kellie White that she had repeatedly stabbed Willison and killed him.
Within two weeks after the murder, Garrison told Victoria Lauderdale that a man was
supposed to give her money and did not; she and Wahlert went to the man’s house where
she had taped the man’s hands and legs while Wahlert held him; they robbed him of
drugs and money; and then they took him to a field where Wahlert shot him twice. She
3 Spelling and punctuation are as set forth in the transcripts of the audio records
admitted into evidence. (Wahlert I, supra, E035174, at p. 12.)

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further told Lauderdale that when she and Wahlert returned to the scene of the shooting
and found the victim alive, Wahlert cut the man’s throat. Garrison did not tell
Lauderdale that she had been forced to participate in the murder. About two weeks after
the murder, Garrison told Vernon Wood that she planned to rob Willison; that she bound
him with duct tape and robbed him of his truck and $20; and that Wahlert then shot and
stabbed him. On two occasions after Wahlert was arrested, when Ramirez and Garrison
were among friends, Garrison “joke[d] around about how much she liked duct tape.”
(Wahlert I, supra, E035174, at pp. 13-14, fn. omitted.)
Garrison was interviewed by police again in May 2001 and December 2001. In
these interviews, Garrison denied having any relationship with Wahlert. She said that
Wahlert told her to duct tape Willison, but she refused. Rather than insisting upon going
with Wahlert and Willison in the truck, as she previously stated, she went along only
after Wahlert pointed the gun at her and said “[y]ou’re going too.” Garrison explained
the apparent inconsistency by stating: “[Wahlert] said, ‘You’re going too. Let’s go,’ and
then I don’t know if he thought about it or what. But he wasn’t gonna⸺he wasn’t gonna
let me go with him, and then that’s when I insisted on going.” She denied taking things
from Willison’s pockets and denied stabbing Willison. She did not try to stop Wahlert,
Garrison explained, because she was afraid that he would shoot her too. At the
conclusion of this last interview she was taken into custody. Audio and video recordings
of these interviews were played to Garrison’s jury only. Neither Wahlert nor Garrison
testified at trial. (Wahlert I, supra, E035174, at p. 14, fn. omitted.)

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On December 9, 2003, a jury convicted Garrison of first degree murder (§ 187,
subd. (a)) and found true the allegation that she committed the murder while engaged in
the commission of a robbery and kidnapping (§ 190.2, subd. (a)(17)(A) & (B)) and of
knowing that a principal was armed with a gun (§ 12022, subd. (a)(1)). The jury found
not true the enhancement allegation that Garrison personally used a deadly and dangerous
weapon (§ 12022, subd. (b)(1)). (Wahlert I, supra, E035174, at pp. 2-3.) Garrison was
sentenced to life without the possibility of parole, plus a determinate term of one year for
the principal-armed enhancement.
On June 24, 2005, we affirmed the convictions, ordered victim restitution to be
paid jointly and severally, and instructed the trial court to correct certain clerical errors.
(Wahlert I, supra, E035174, at pp. 4-5, 41-42.) In the published portion of the opinion,
we held that Wahlert’s statements during the recorded conversation between himself and
Garrison, to the extent they were offered for their truth against Garrison, were testimonial
for purpose of the confrontation clause under Crawford v. Washington (2004) 541 U.S.
36, but that their admission against Garrison was harmless. In relevant part, we also
concluded that any errors in failing to instruct as to accomplice principles or concerning
implied malice were harmless. (Wahlert I, supra, E035174, at pp. 4-5.)
In 2018, after Garrison’s judgment of conviction became final, the Legislature
enacted and the Governor signed Senate Bill 1437, effective January 1, 2019. (See Stats.
2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 amended the felony-murder rule and the
natural and probable consequences doctrine as it relates to murder. Senate Bill 1437 also

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added section 1170.95, which allows those “convicted of felony murder or murder under
a natural and probable consequences theory . . . [to] file a petition with the court that
sentenced the petitioner to have the petitioner’s murder conviction vacated and to be
resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a).)
On January 22, 2019, Garrison in propria persona filed a petition for resentencing
pursuant to section 1170.95, requesting that her murder conviction be vacated based on
changes to sections 188 and 189, as amended by Senate Bill 1437. Garrison checked the
boxes stating she was not the actual killer and that the victim was not a peace officer.
However, even though the section 1170.95 petition states “all must apply,” Garrison did
not check the boxes indicating: (1) “I did not, with the intent to kill, aid, abet, counsel,
command, induce, solicit, request, or assist the actual killer in the commission of murder
in the first degree”; and (2) “I was not a major participant in the felony or I did not act
with reckless indifference to human life during the course of the crime or felony.”
The trial court heard the petition on March 22, 2019. Prior to the hearing, the
court appointed a conflict-panel attorney to represent Garrison, and indicated it
anticipated that counsel would simply say “I object” at the conclusion of the court’s
ruling. The court then indicated it had reviewed its own records and denied Garrison’s
petition. In denying the petition, the court stated as follows:
“There was a finding on the special circumstance. The finding reads as follows:
‘We, the jury in the above-entitled action, find that the murder of Michael Wilson, as
charged under Count 1 of the third amended information, was committed while the

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defendant, Tracy Leean Garrison, was engaged in the commission of the crime of robbery
in violation of section 211 of the Penal Code as alleged in the allegation of special
circumstance within the meaning of Penal Code section 190.2, subdivision (a),
subsection (17), subparagraph (A).
“Additionally, there was a second finding that reads as follows: [‘]We, the jury in
the above-entitled action, find that the murder of Michael Wilson, as charged under
Count 1 of the third amended information, was committed while the defendant, Tracy
Leean Garrison, was engaged in the commission of the crime of kidnapping in violation
of section 207 of the Penal Code as alleged in the allegation of special circumstance
within the meaning of Penal Code section 190.2, subdivision (a), subsection (17),
subparagraph (B).
“There was also a true finding on personal use of a handgun—or being personally
armed with a handgun. There was also a true finding on the 12022(b) allegation.[4]
“The jury was instructed on aider and abettor liability. The jury was instructed
pursuant to 8—under CAL JIC 8.80.1. In pertinent part, that instruction stated the
following: ‘If you find that a defendant was not the actual killer of a human being, or if
you are unable to decide whether the defendant was the actual killer or an aider and
abettor, you cannot find the special circumstance to be true as to that defendant unless
4 Garrison correctly notes that at the hearing on her resentencing petition, the
court mistakenly observed that the jury had found true the personal-use enhancement
allegation under section 12022, subdivision (b)(1), when, in fact, the jury only found true
the principal-armed enhancement pursuant to section 12022, subdivision (a)(1).

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you are satisfied beyond a reasonable doubt that such defendant, with the intent to kill,
aided and abetted or assisted any actor in the commission of the murder in the first
degree, or with reckless indifference to human life and as a major participant, aided and
abetted or assisted in the commission of the crime of robbery or kidnapping which
resulted in the death of a human being, namely Michael Wilson.’
“As such, it appears that as a matter of law, the defendant was found to fall within
the provisions of [Senate Bill] 1437 as it is enacted meaning there has been a finding, as a
matter of law, that she satisfies one of the predicates for aider and abettor liability under
[Senate Bill] 1437 as it is drafted. As such, she is not entitled to relief. Under [section]
1170.95, the Court is summarily denying this petition.”
Garrison’s counsel thereafter objected. When the trial court inquired as to whether
defense counsel wanted to be heard further as to her objection, counsel stated “No.”
On March 25, 2019, the People filed a response, arguing Senate Bill 1437 was
unconstitutional and that Garrison was not factually entitled to relief due to the jury’s true
findings on the felony-murder special circumstances. The People claimed that Garrison
was the actual killer, and if not the actual killer, she directly aided and abetted the killing
with the intent to kill, she was a major participant in the murder, and she acted with
reckless indifference to human life. The People thus requested summary denial of
Garrison’s petition.
On April 29, 2019, Garrison filed a timely notice of appeal from the denial of her
section 1170.95 petition.

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III
DISCUSSION
Garrison contends the trial court erred in summarily denying her section 1170.95
petition for resentencing.
A. Standard of Review and Applicable Law
We review de novo questions of statutory construction. (California Building
Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1041.) “Our
primary task ‘in interpreting a statute is to determine the Legislature’s intent, giving
effect to the law’s purpose. [Citation.] We consider first the words of a statute, as the
most reliable indicator of legislative intent.’” (Ibid.)
On September 30, 2018, the Governor signed Senate Bill 1437. “The legislation,
which became effective on January 1, 2019, addresses certain aspects of California law
regarding felony murder and the natural and probable consequences doctrine by
amending Penal Code sections 188 and 189, as well as by adding Penal Code
section 1170.95, which provides a procedure by which those convicted of murder can
seek retroactive relief if the changes in law would affect their previously sustained
convictions.” (People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez).)
An uncodified section of the law expressing the Legislature’s findings and
declarations states the law was “necessary to amend the felony murder rule and the
natural and probable consequences doctrine, as it relates to murder, to ensure that murder
liability is not imposed on a person who is not the actual killer, did not act with the intent

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to kill, or was not a major participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It further provides
that the legislation was needed “to limit convictions and subsequent sentencing so that
the law of California fairly addresses the culpability of the individual and assists in the
reduction of prison overcrowding, which partially results from lengthy sentences that are
not commensurate with the culpability of the individual.” (Id., § 1, subd. (e).)
Prior to Senate Bill 1437’s enactment, a person who knowingly aided and
abetted a crime, the natural and probable consequence of which was murder or
attempted murder, could be convicted of not only the target crime but also of the resulting
murder or attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161; In re R.G.
(2019) 35 Cal.App.5th 141, 144 (R.G.).) “This was true irrespective of whether the
defendant harbored malice aforethought. Liability was imposed ‘“for the criminal harms
[the defendant] . . . naturally, probably, and foreseeably put in motion.” [Citations.]’
[Citation.]” (R.G., at p. 144.) “The purpose of the felony-murder rule [was] to deter
those who commit[ted] the enumerated felonies from killing by holding them strictly
responsible for any killing committed by a cofelon, whether intentional, negligent, or
accidental, during the perpetration or attempted perpetration of the felony.” (People v.
Cavitt (2004) 33 Cal.4th 187, 197.) Aider and abettor liability under the doctrine was
thus “vicarious in nature.” (People v. Chiu, at p. 164.)
Senate Bill 1437 “redefined ‘malice’ in section 188. Now, to be convicted of
murder, a principal must act with malice aforethought; malice can no longer ‘be imputed

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to a person based solely on [his or her] participation in a crime.’ (§ 188, subd. (a)(3).)”
(R.G., supra, 35 Cal.App.5th at p. 144; accord, People v. Verdugo (2020) 44 Cal.App.5th
320, 326 (Verdugo), review granted Mar. 18, 2020, S260493.5) “Senate Bill 1437 also
amended section 189, which defines first and second degree murder, by, among other
things, adding subdivision (e). Under that subdivision, a participant in enumerated
crimes is liable under the felony-murder doctrine only if he or she was the actual killer;
or, with the intent to kill, aided and abetted the actual killer in commission of first degree
murder; or was a major participant in the underlying felony and acted with reckless
indifference to human life.” (People v. Munoz (2019) 39 Cal.App.5th 738, 749; § 189,
subd. (e); Stats. 2018, ch. 1015, § 3; People v. Lopez (2019) 38 Cal.App.5th 1087, 1099-
1100, review granted Nov. 13, 2019, S258175; Martinez, supra, 31 Cal.App.5th at
p. 723; People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), review granted
Mar. 18, 2020, S260598.6) “Senate Bill 1437 thus ensures that murder liability is not
imposed on a person who did not act with implied or express malice,” or—when the
felony-murder doctrine is at issue—“was not the actual killer, did not act with the intent
to kill, or was not a major participant in the underlying felony who acted with reckless
indifference to human life.” (People v. Munoz, at pp. 749-750; Stats. 2018, ch. 1015, § 1,
5 Under a recent amendment to California Rules of Court, rule 8.1115, we may
rely on Verdugo as persuasive authority while review is pending. (Cal. Rules of Court,
rule 8.1115(e)(1), eff. July 1, 2016.)
6 As previously noted, under a recent amendment to California Rules of Court,
rule 8.1115, we may rely on Lewis as persuasive authority while review is pending. (Cal.
Rules of Court, rule 8.1115(e)(1), eff. July 1, 2016.)

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subds. (f), (g); People v. Anthony (2019) 32 Cal.App.5th 1102, 1147; Martinez, at
p. 723.)
As noted above, Senate Bill 1437 amended section 189 to limit liability for murder
under a felony-murder theory to a person who (1) was the actual killer; (2) though not the
actual killer, acted “with intent to kill” and “aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer” in the commission of first
degree murder; or (3) was “a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d) of Section 190.2.”
(§ 189, subd. (e); Verdugo, supra, 44 Cal.App.5th at p. 326.)
Senate Bill 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.’” (Lewis, supra, 43 Cal.App.5th at p. 1135.)
Accordingly, “[o]ne 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.”
(Ibid.)
Senate Bill 1437 also added section 1170.95. That section provides that “[a]
person convicted of felony murder or murder under a natural and probable consequences
theory may file a petition with the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated and to be resentenced on any remaining counts.”
(§ 1170.95, subd. (a).) A petition may be filed when the following three conditions are
met: “(1) A complaint, information, or indictment was filed against the petitioner that

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allowed the prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first
degree or second degree murder following a trial or accepted a plea offer in lieu of a trial
at which the petitioner could be convicted for first degree or second degree murder. [¶]
(3) The petitioner could not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subds. (a)(1)-(3); see Martinez, supra, 31 Cal.App.5th at p. 723.)
The petitioner must declare that he or she is eligible for relief based on the
requirements above, provide the case number and year of conviction, and specify whether
the petitioner requests the appointment of counsel. (§ 1170.95, subd. (b)(1).) “If any of
the information required by this subdivision is missing from the petition and cannot be
readily ascertained by the court, the court may deny the petition without prejudice to the
filing of another petition and advise the petitioner that the matter cannot be considered
without the missing information.” (§ 1170.95, subd. (b)(2).)
Section 1170.95, subdivision (c), sets forth the trial court’s obligations upon the
submission of a complete petition: “The court shall review the petition and determine if
the petitioner has made a prima facie showing that the petitioner falls within the
provisions of this section. If the petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner. The prosecutor shall file and serve a response within
60 days of service of the petition and the petitioner may file and serve a reply within
30 days after the prosecutor response is served. . . . If the petitioner makes a prima facie

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showing that he or she is entitled to relief, the court shall issue an order to show cause.”
Once the order to show cause issues, the court must hold a hearing to determine whether
to vacate the murder conviction and to recall the sentence and resentence the petitioner on
any remaining counts. (§ 1170.95, subd. (d)(1).) At such a hearing, both the prosecution
and the defense may rely on the record of conviction or may offer new or additional
evidence. (§ 1170.95, subd. (d)(3).) “[T]he burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.”
(§ 1170.95, subd. (d)(3); Martinez, supra, 31 Cal.App.5th at pp. 723-724.)
If the petitioner is found eligible for relief, the murder conviction must be vacated
and the petitioner resentenced “on any remaining counts in the same manner as if the
petitioner had not been [sic] previously been sentenced, provided that the new sentence,
if any, is not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).) If the petitioner
is found eligible for relief, but “murder was charged generically[ ] and the target offense
was not charged,” the petitioner’s murder conviction must be “redesignated as the target
offense or underlying felony for resentencing purposes.” (§ 1170.95, subd. (e).)
B. Appointment of Counsel Under Section 1170.95
Garrison contends the trial court erred in summarily denying her petition for
resentencing without appointing counsel on her behalf or ordering briefing from the
parties. In essence, she claims that a facially valid petition under section 1170.95
requires the trial court to appoint counsel if requested and to order briefing before it can
determine whether the petitioner has established a prima facie basis for relief. She

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maintains that the trial court may not look beyond the face of the petition at this stage of
inquiry, and even if the court could, the court relied on an inadequate record to support its
finding in violation of her due process right. As to relief, Garrison requests that the case
be remanded with orders to appoint counsel, allow briefing by the parties, and conduct an
eligibility hearing.
Recent appellate court decisions have rejected similar contentions that
section 1170.95, subdivision (c), mandates the appointment of counsel and briefing
whenever a facially sufficient petition has been filed. (See Lewis, supra, 43 Cal.App.5th
at pp. 1139-1140; Verdugo, supra, 44 Cal.App.5th at pp. 323, 328, 332-333; People v.
Cornelius (2020) 44 Cal.App.5th 54, 58 (Cornelius), review granted Mar. 18, 2020,
S260410.) For example, the Verdugo court determined that subdivisions (b) and (c) of
section 1170.95 together prescribe a “three-step evaluation” process before determining if
an order to show cause should issue. (See Verdugo, at pp. 330, 332-333.) It explained
that upon the filing of a section 1170.95 petition, the trial court first screens the petition
to determine if it contains the basic averments required by subdivision (b)(1)(A) and (B).
(See Verdugo, at pp. 323, 327-328.) The court may deny the petition at this stage without
prejudice to refiling if the petition lacks required elements or is facially inadequate.
(§ 1170.95, subd. (b)(2); Verdugo, at p. 328.) “This initial review thus determines the
facial sufficiency of the petition.” (Verdugo, at p. 328.)
The Verdugo court further explained, “Subdivision (c) then prescribes two
additional court reviews before an order to show cause may issue, one made before any

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briefing to determine whether the petitioner has made a prima facie showing he or she
falls within section 1170.95—that is, that the petitioner may be eligible for relief—and a
second after briefing by both sides to determine whether the petitioner has made a prima
facie showing he or she is entitled to relief.” (Verdugo, supra, 44 Cal.App.5th at p. 328.)
The initial prima facie review is “to decide whether the petitioner is ineligible for relief as
a matter of law, making all factual inferences in favor of the petitioner.” (Verdugo, at
p. 329.) At this stage of review, the trial court may rely upon the petitioner’s record of
conviction, including the charging documents, jury instructions, verdict forms, and
appellate decision, to conclusively establish ineligibility for relief. (See § 1170.95,
subd. (a)(1)-(2); Verdugo, at p. 333; Lewis, supra, 43 Cal.App.5th at pp. 1137-1138.)
“[I]f the petitioner’s ineligibility for resentencing under section 1170.95 is not
established as a matter of law by the record of conviction, the court must direct the
prosecutor to file a response to the petition, permit the petitioner (through appointed
counsel if requested) to file a reply and then determine, with the benefit of the parties’
briefing and analysis, whether the petitioner has made a prima facie showing he or she is
entitled to relief.” (Verdugo, supra, 44 Cal.App.5th at p. 330; see § 1170.95, subd. (c).)
After the second review, if the trial court concludes that the petitioner has established a
prima facie basis of eligibility for resentencing, it must issue an order to show cause.
(Verdugo, at p. 328; Lewis, supra, 43 Cal.App.5th at p. 1140.)
Garrison disagrees with the Verdugo court’s formulation of a two-step prima facie
review process and contends he was entitled to appointed counsel when he filed a facially

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sufficient petition. The issue of when the right to appointed counsel arises under
section 1170.95, subdivision (c), is currently before the Supreme Court in Lewis, supra,
43 Cal.App.5th 1128 [S260598], Verdugo, supra, 44 Cal.App.5th 320 [S260493], and
Cornelius, supra, 44 Cal.App.5th 54 [S260410].7
We need not resolve this question, however, because even if section 1170.95,
subdivision (c), required the trial court to appoint counsel upon the presentation of a
facially valid petition, the trial court here did appoint counsel for Garrison. As Garrison
recognizes, the trial court “made the appointment” for counsel. However, she believes
the trial court did not allow “counsel to speak prior to rendering a decision, and then just
allowing counsel to object to the court’s ruling.” Although the court rendered its decision
prior to counsel’s objection, there is no indication in the record to support Garrison’s
contention the court forbade counsel from speaking. In fact, at the conclusion of the
hearing, the court specifically asked Garrison’s appointed counsel if she wished to “be
heard further as to [her] objection?” Counsel replied, “No.”
In addition, even if section 1170.95, subdivision (c), required the trial court to
appoint counsel upon the presentation of a facially valid petition, any such error in failing
7 On March 18, 2020, the California Supreme Court granted review on the
following questions that directly bear on Garrison’s appeal: “(1) May superior courts
consider the record of conviction in determining whether a defendant has made a prima
facie showing of eligibility for relief under Penal Code section 1170.95? (2) When does
the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c).”
(People v. Lewis (Mar. 18, 2020, S260598) [2020 Cal.Lexis 1946].)

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to do so was harmless. That is because the record conclusively establishes that she is
ineligible for relief as a matter of law.
It is undisputed that a jury convicted Garrison of first degree murder (§ 187,
subd. (a)) while Garrison was engaged in the commission of the crimes of robbery
(§ 190.2, subd. (a)(17)(A)) and kidnapping (§ 190.2, subd. (a)(17)(B)), and this court
affirmed the judgment of conviction. (Wahlert I, supra, E035174, at pp. 2-5, 41-42; see
People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419 (Gutierrez-Salazar.)
Thus, even with the benefit of counsel, Garrison would not be able to refute the
trial court’s conclusion that she was convicted on a valid theory of murder which survives
the changes to sections 188 and 189. Accordingly, Garrison suffered no prejudice by the
trial court’s failure to appoint counsel (or allow counsel to speak prior to rendering its
decision) and it would be futile to remand the case for the appointment of an attorney on
this record.
C. Review of Record of Conviction
Garrison argues the trial court erred by reviewing her record of conviction and
determining the jury’s true findings on the special circumstances rendered her ineligible
for relief. According to Garrison, two California Supreme Court cases decided after she
was convicted—People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark)—clarified what “major participant” and “reckless
indifference” to human life mean for purposes of section 190.2, subdivision (d), and
therefore require us to conclude her special circumstances findings were not supported by

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sufficient evidence. As we explain, it is proper for a trial court to review the record of
conviction when determining whether a section 1170.95 petitioner has stated a prima
facie claim for relief. Additionally, even under the principles articulated in Banks and
Clark after Garrison was convicted, she undoubtedly qualifies as a major participant who
acted with reckless indifference to human life, a conclusion that renders her ineligible for
relief under section 1170.95.
Two opinions, Lewis and Verdugo, have already rejected the argument that a trial
court is limited to the allegations in the petition when determining whether the petitioner
has stated a prima facie claim for relief under section 1170.95. We find Lewis and
Verdugo to be persuasive authority and correctly decided.
In Lewis, the defendant argued “that the court could look no further than his
petition in evaluating his prima facie showing and the court therefore erred when it
considered [the] opinion in his direct appeal.” (Lewis, supra, 43 Cal.App.5th at p. 1137.)
In Verdugo, the defendant argued “the superior court lacked jurisdiction to deny his
section 1170.95 petition on the merits” based on its review of the record of conviction
“without first appointing counsel and allowing the prosecutor and appointed counsel to
brief the issue of his entitlement to relief.” (Verdugo, supra, 44 Cal.App.5th at p. 323.)
Analogizing to the well-established and similar resentencing procedures under
Propositions 36 and 47, the Lewis and Verdugo courts rejected these arguments,
concluding a trial court may consider the record of the petitioner’s conviction, including

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documents in the court’s own file and the appellate opinion resolving the defendant’s
direct appeal. (Lewis, at pp. 1137-1138; Verdugo, at pp. 329-330.)
The Lewis court reasoned: “Allowing the trial court to consider its file and the
record of conviction is also sound policy. As a respected commentator has explained: ‘It
would be a gross misuse of judicial resources to require the issuance of an order to show
cause or even appointment of counsel based solely on the allegations of the petition,
which frequently are erroneous, when even a cursory review of the court file would show
as a matter of law that the petitioner is not eligible for relief. For example, if the petition
contains sufficient summary allegations that would entitle the petitioner to relief, but a
review of the court file shows the petitioner was convicted of murder without instruction
or argument based on the felony murder rule or [the natural and probable consequences
doctrine], . . . it would be entirely appropriate to summarily deny the petition based on
petitioner’s failure to establish even a prima facie basis of eligibility for resentencing.’
(Couzens et al., Sentencing Cal. Crimes [(The Rutter Group 2019)] ¶ 23:51(H)(1),
pp. 23-150 to 23-151.)” (Lewis, supra, 43 Cal.App.5th at p. 1138.) We agree with this
view and therefore conclude the court did not err by considering the record of conviction
in evaluating Garrison’s petition.
Next, Garrison argues that even if the trial court could look beyond her petition to
the record of conviction, the trial court relied on materially inadequate documents and the
evidence is insufficient to support a finding that she was a major participant or acted with
reckless indifference to human life under Banks and Clark. She argues that because

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Banks and Clark were issued after her conviction became final, no court has analyzed the
sufficiency of the evidence supporting her section 190.2, subdivision (d) special
circumstance findings under the correct standard. The People assert the evidence amply
supports the special circumstance findings under the principles articulated in Banks and
Clark. We agree with the People.
Section 190.2 sets forth the special circumstances under which murderers and
accomplices can be punished by death or life without possibility of parole. Two such
circumstances are when a defendant is found guilty of first degree murder committed
while the defendant was engaged in, or was an accomplice in, the commission or
attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)) or a kidnapping (§ 190.2,
subd. (a)(17)(B)). However, as explained above, a death resulting during the commission
of a robbery (or any other felony enumerated in section 189) is insufficient, on its own, to
establish a felony-murder special circumstance for those defendants, like Garrison, who
were not found to be the actual killer. Such defendants can only be guilty of special
circumstance felony murder if they aid in the murder with the intent to kill (§ 190.2,
subd. (c)), or, lacking intent to kill, aid in the felony “with reckless indifference to human
life and as a major participant.” (§ 190.2, subd. (d)).
Section 190.2, subdivision (d), was enacted in 1990 to bring state law into
conformity with prevailing Eighth Amendment doctrine, as set out in the United States
Supreme Court’s decision Tison v. Arizona (1987) 481 U.S. 137 (Tison). (Banks, supra,
61 Cal.4th at p. 798.) “In Tison, two brothers aided an escape by bringing guns into a

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prison and arming two murderers, one of whom they knew had killed in the course of a
previous escape attempt. After the breakout, one of the brothers flagged down a passing
car, and both fully participated in kidnapping and robbing the vehicle’s occupants. Both
then stood by and watched as those people were killed. The brothers made no attempt to
assist the victims before, during, or after the shooting, but instead chose to assist the
killers in their continuing criminal endeavors. [Citation.] The Supreme Court held the
brothers could be sentenced to death despite the fact they had not actually committed the
killings themselves or intended to kill, stating: ‘[R]eckless disregard for human life
implicit in knowingly engaging in criminal activities known to carry a grave risk of death
represents a highly culpable mental state, a mental state that may be taken into account in
making a capital sentencing judgment when that conduct causes its natural, though also
not inevitable, lethal result. [¶] The [brothers’] own personal involvement in the
crimes was not minor, but rather, . . . “substantial.” Far from merely sitting in a car
away from the actual scene of the murders acting as the getaway driver to a robbery,
each . . . was actively involved in every element of the kidnap[p]ing-robbery and was
physically present during the entire sequence of criminal activity culminating in the
murder[s] . . . and the subsequent flight. The Tisons’ high level of participation in these
crimes . . . implicates them in the resulting deaths.’” (In re Ramirez (2019) 32
Cal.App.5th 384, 393-394 (Ramirez), quoting Tison, at pp. 157-158.)
“The Tison court pointed to the defendant in Enmund v. Florida (1982) 458 U.S.
782 (Enmund) as an example of a nonkiller convicted of murder under the felony-murder

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rule for whom the death penalty was unconstitutionally disproportionate. Enmund was
the driver of the getaway car in an armed robbery of a dwelling whose occupants were
killed by Enmund’s accomplices when they resisted. [Citations.] In deciding the Eighth
Amendment to the United States Constitution forbids imposition of the death penalty ‘on
one such as Enmund’ . . . , the high court emphasized that the focus had to be on the
culpability of Enmund himself, and not on those who committed the robbery and shot
the victims [citation]. ‘Enmund himself did not kill or attempt to kill; and, . . . the
record . . . does not warrant a finding that Enmund had any intention of participating in or
facilitating a murder. . . . [T]hus his culpability is plainly different from that of the
robbers who killed; yet the State treated them alike and attributed to Enmund the
culpability of those who killed the [victims]. This was impermissible under the Eighth
Amendment.’” (Ramirez, supra, 32 Cal.App.5th at p. 394.)
In Banks, the California Supreme Court described what is often referred to as the
Tison-Enmund spectrum. “At one extreme” are people like Enmund—“the minor actor in
an armed robbery, not on the scene, who neither intended to kill nor was found to have
had any culpable mental state.” (Banks, supra, 61 Cal.4th at p. 800.) “At the other
extreme [are] actual killers and those who attempted or intended to kill.” (Ibid.)
Section 190.2, subdivision (d), covers those people who fall “‘into neither of these neat
categories’”—people like the Tison brothers, who were major participants in the
underlying felony and acted with a reckless indifference to human life. (Banks, at
p. 800.)

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Our high court articulated several factors intended to aid in determining whether a
defendant falls into this middle category, such that section 190.2, subdivision (d), would
apply to them. “What role did the defendant have in planning the criminal enterprise that
led to one or more deaths? What role did the defendant have in supplying or using lethal
weapons? What awareness did the defendant have of particular dangers posed by the
nature of the crime, weapons used, or past experience or conduct of the other
participants? Was the defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after lethal force was used?”
(Banks, supra, 61 Cal.4th at p. 803, italics added.) “No one of these considerations is
necessary, nor is any one of them necessarily sufficient.” (Ibid.)
The defendant in Banks was convicted of first degree murder with a felony-murder
special circumstance based on his having acted as the getaway driver for an armed
robbery in which his codefendant Banks and others participated, and in which Banks shot
and killed one of the robbery victims while escaping. (Banks, supra, 61 Cal.4th at
pp. 796-797.) Considering the defendant’s involvement in the robbery against the factors
just enumerated, the Court “placed [him] at the Enmund pole of the Tison-Enmund
spectrum.” (Ramirez, supra, 32 Cal.App.5th at p. 397.) The court found particularly
significant the fact the defendant played the role of getaway driver and was not aware his
codefendants planned to use guns during the robbery. Because he “did not see the
shooting happen, did not have reason to know it was going to happen, and could not do

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anything to stop the shooting or render assistance,” the court concluded he was not
“willingly involved in the violent manner in which the particular offense [was]
committed.” (Banks, at pp. 801, 803, fn. 5, 807.) As a result, the court concluded “the
jury’s special-circumstance true finding cannot stand.” (Id. at p. 811.)
Not long after Banks, our Supreme Court revisited this issue in Clark, also
concluding the evidence was insufficient to support the defendant’s robbery-murder
special circumstance findings. (Clark, supra, 63 Cal.4th at p. 611.) The defendant in
Clark planned a burglary of a computer store to occur after the store was closed.
According to the plan, his codefendant was to carry out the burglary armed with an
unloaded gun. However, his codefendant ended up carrying a gun loaded with one bullet
and fired that bullet when he unexpectedly encountered a store employee, killing her.
(Id. at pp. 612-613.) Our high court concluded there was insufficient evidence Clark
acted with reckless indifference to human life because (a) Clark was not physically
present when his codefendant killed the employee and was therefore unable to intervene;
(b) there was no evidence Clark knew his codefendant was predisposed to be violent; and
(c) Clark planned for the robbery to take place after the store closed, and the gun was not
supposed to be loaded. (Id. at pp. 619-622.) In sum, the court believed there was
“nothing in [Clark’s] plan that one can point to that elevated the risk to human life
beyond those risks inherent in any armed robbery.” (Id. at p. 623.)
Garrison argues, and we agree, that in determining if she could be convicted today
of first degree murder, the trial court cannot simply defer to the jury’s pre-Banks and

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Clark factual findings that she was a major participant who acted with reckless
indifference to human life as those terms were interpreted at the time. Rather, the court
must determine if substantial evidence supports the jury’s finding as that standard was
interpreted by our high court in Banks and Clark.
Nonetheless, we believe an appellate court is capable of determining whether a
defendant’s pre-Banks and Clark trial record is sufficient to support the special
circumstances finding under the guidance articulated in those cases. As the court stated
in In re Miller (2017) 14 Cal.App.5th 960 (Miller), “[a] [d]efendant’s claim that the
evidence presented against him failed to support [a] robbery-murder special circumstance
[finding made prior to Banks and Clark] . . . is not a ‘routine’ claim of insufficient
evidence.” (Id. at pp. 979-980.) The “claim does not require resolution of disputed facts;
the facts are a given.” (Id. at p. 980.) As the People v. Torres (2020) 46 Cal.App.5th
1168 court observed, “[t]he question is whether [those given facts] are legally sufficient
in light of Banks and Clark.” (Id. at p. 1179, italics added.) Rather than remand for the
trial court to make that determination, we will do so now.
In our view, the most significant facts in Banks and Clark were that the defendants
in those cases were not present at the scene of the robberies (and therefore could not
intervene or try to minimize the violence), did not know guns would be used, and
certainly did not use any guns themselves in fulfilling their roles in the crime. Those
facts supported the inference that the defendants were not willingly involved in the
violent manner in which the robberies were committed.

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Garrison, in contrast, was willingly involved in the violent manner of the robbery
and kidnapping. She talked to Ramirez about a plan to rob the victim on several
occasions, and Wahlert and Garrison sometimes referred to each other as “Bonnie and
Clyde.” (Wahlert I, supra, E035174, at p. 5.) Furthermore, while the victim was at
Ramirez’s home, Garrison and Wahlert not only entered Ramirez’s home at a time when
most residents would be home asleep (therefore increasing the risk of violence) but they
did so armed with duct tape, a gun, and a knife. Wahlert then proceeded to pull out a gun
and point it at the victim, while Garrison taped the victim’s mouth and hands with the
duct tape. (Wahlert I, supra, E035174, at pp. 5-6.) Garrison went through the victim’s
pockets, taking keys, a wallet, a necklace, and a ring. Ramirez pleaded for them to not
shoot the victim at his home and believed Wahlert and Garrison were “working together.”
(Wahlert I, supra, E035174, at p. 6.)
Garrison took the victim’s keys, and with Wahlert pointing the gun at the victim,
the three then entered the victim’s truck. They then drove to a secluded rural area where
the victim was severely beaten, repeatedly stabbed, and shot twice in the head. (Wahlert
I, supra, E035174, at p. 6.) After the killing and Wahlert’s unrelated arrest for
brandishing a firearm, Garrison went to Ramirez’s home and told him that they had to
“go back out there and take care of the body.” (Wahlert I, supra, E035174, at pp. 7-8.)
Moreover, after the victim’s death, Garrison made admissions to several other people
about her involvement in the killing. On the night after the killing, she told a person that
Wahlert shot a man and that she slit the victim’s throat. She also told another person,

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within a couple days of the murder, that she had repeatedly stabbed the victim and killed
him. (Wahlert I, supra, E035174, at p. 13.) There was also evidence at trial indicating
Garrison encouraged Wahlert to kill the victim. (Wahlert I, supra, E035174, at pp. 11-
12.) Even if the personal use of a deadly weapon allegation against Garrison was found
not true by the jury, there was sufficient evidence in the record to conclude Garrison was
a major participant in the robbery and kidnapping of the victim and watched without
intervening when Wahlert killed the victim. There was also sufficient evidence to find
Garrison intended to kill the victim, aided, abetted, counseled, commanded, induced, or
assisted Wahlert in the commission of the murder. Garrison could have tried to stop
Wahlert’s violent behavior or help the victim once he had been kidnapped and shot, but
she did neither.
Garrison’s conduct easily meets our state’s standard for what constitutes being a
major participant who acted with reckless indifference to human life. Indeed, we are not
aware of a single case that suggests a defendant who personally committed a robbery and
kidnapping, used duct tape and a weapon, and was present for the shooting did not meet
the standard in section 190.2, subdivision (d). The defendants who have been successful
in petitioning for a writ of habeas corpus to have their special circumstance findings
vacated under Banks and Clark are those who were not wielding guns or weapons
themselves and were not present for the shooting (either because they were acting as
getaway drivers or because they were involved in the planning of the crime only). (See,
e.g., Miller, supra, 14 Cal.App.5th at p. 965 [defendant played the role of “spotter” who

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would select the robbery target and was not at the scene of the robbery/murder]; In re
Bennett (2018) 26 Cal.App.5th 1002, 1019-1020 [defendant was involved in planning the
robbery but was not at the scene of the murder]; Ramirez, supra, 32 Cal.App.5th at p. 404
[defendant acted as getaway driver and was not at the scene of the murder]; In re Taylor
(2019) 34 Cal.App.5th 543, 559 [same].) Garrison’s conduct is clearly distinguishable.
We therefore conclude that while the trial court erred by failing to determine
whether Garrison qualified as a major participant who acted with reckless indifference to
human life under Banks and Clark, the error was harmless because the record
demonstrates the answer to that question is yes. As a result, we conclude the denial of
Garrison’s petition was proper. (See Gutierrez-Salazar, supra, 38 Cal.App.5th at p. 419;
People v. Gonzalez (2018) 5 Cal.5th 186, 202 [“The special circumstance instructions
also required the jury to find that each aider and abettor either intended to kill or
(1) began participating in the crime before or during the killing, (2) was a major
participant in the crime, and (3) acted with reckless indifference to human life.”]; see also
CALJIC No. 8.80.1 [a defendant must have an intent to kill or be a major participant with
a reckless disregard for human life to find her guilty when a special circumstance is
charged and there is evidence that the defendant was not the killer].)

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IV
DISPOSITION
The trial court’s postjudgment order denying Garrison’s section 1170.95
resentencing petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
MILLER
Acting P. J.
FIELDS
J.

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