In re D.L. CA2/1
B321015A
Cal. Ct. App.Jan 9, 2026Check TreatmentFiled 1/9/26 In re D.L. CA2/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re D.L., a Person Coming B321015
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. MJ24058)
THE PEOPLE,
Plaintiff and Respondent,
v.
D.L., a Minor,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Brian C. Yep, Judge. Reversed.
Lynette Gladd Moore; Laini Millar Melnick, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________
Appellant D.L., who was born in 2001, appeals from orders
sustaining a juvenile wardship petition and the juvenile court’s
disposition order.
On appeal, appellant does not challenge that he was a
major participant in an attempted robbery. He does challenge
the sufficiency of the evidence to support he participated in the
attempted robbery with reckless indifference to human life. We
previously concluded there was substantial evidence showing
appellant acted with reckless indifference to human life and
affirmed the order sustaining the Welfare and Institutions Code
section 602 petition (section 602 petition) and the dispositional
order.
The Supreme Court transferred the case to us to reconsider
it in light of People v. Emanuel (2025) 17 Cal.5th 867 (Emanuel).
Based on our high court’s guidance in Emanuel, we conclude
substantial evidence does not support that appellant acted with
reckless indifference to human life. We also conclude no
substantial evidence shows he harbored intent to kill. We thus
reverse the juvenile court’s order sustaining the section 602
petition and the juvenile court’s disposition order.
BACKGROUND
The juvenile court sustained count one of the second
amended petition, which alleged that in February 2018, when
appellant was 16 years old, appellant murdered John Ruh. The
murder occurred while appellant and Deonta Johnson were
2
attempting to rob the store in which Ruh worked. The court
found true that a principal was armed with a firearm.
In count two, the People alleged, and the court sustained,
one count of attempted second degree robbery and found true
that a principal was armed with a firearm.1
1. Evidence at trial
In the 2022 trial, the parties stipulated Ruh died of
multiple gunshot wounds. Appellant did not call any witnesses.
a. M.H.’s testimony
M.H. dated appellant and M.H.’s daughter referred to
appellant as dad. Appellant told M.H. that Fatboy (Johnson) had
proposed robbing the Dairy, a neighborhood convenience store.
According to M.H., Fatboy was a member of the 30 Crip Harlem
gang. M.H. testified appellant belonged to a different gang.
Appellant told M.H. he and Fatboy planned a robbery.
They knew that Ruh worked alone. Appellant said he gave the
gun to Fatboy “right before” entering the Dairy. Appellant told
M.H. Fatboy was supposed to use the gun to scare Ruh.
Appellant also told M.H. the robbery did not “go as
planned” because Fatboy shot the cashier, and that “was not
supposed to happen.” Appellant said, “Fatboy had shot him
[Ruh] just for no reason.” Appellant reiterated to M.H.: “They
was just supposed to rob him and that was it.” Appellant told
M.H., “Fatboy had told the man to put his hands up” and
appellant was near the door “telling him [Fatboy] to come on, and
that’s when Fatboy had shot the man.”
1 Additional allegations, including three counts of
dissuading a witness, M.H., by force or threat, were dismissed.
3
After the shooting, appellant and Fatboy went to
appellant’s house where Fatboy had been staying. Appellant told
M.H. the gun was “dirty” because Fatboy shot the cashier.
Neither appellant nor Fatboy obtained any money from the
attempted robbery.
Appellant told M.H. not to tell anyone about the attempted
robbery and shooting, and told M.H., “ ‘I got to get out of here.’ ”
After the shooting, M.H. saw appellant carry the gun to the
“places we go” such as clubs. Appellant described the gun as
“ ‘dirty’ ” and said, “ ‘[I]t’s got a body on it.’ ”
b. Security footage
Detective Steven Blagg described the video footage of the
attempted robbery.2 “Mr. Ruh just accepted something from
somebody [appellant] on the other side of the counter. When he
opened the register another figure appeared [Johnson] . . .
causing Mr. Ruh to slam the door shut of the cash register. What
appears to be gunshots go off. And the person who was on the
customer side of the counter [appellant], . . . then starts to walk
towards the door while smiling.”
Bragg testified about another video showing appellant
asking Ruh, “ ‘Can I get a Newport [cigarette]?’ ” Appellant
hands something to Ruh causing Ruh to open the cash register.
After Ruh opens the cash register, Johnson says, “ ‘Empty the
register.’ ” Ruh slammed the cash register shut. Ruh said,
“ ‘What are you gonna rob me with a pellet gun?’ ” Ruh opened
2 We augmented the record to include the video footage
and allowed the parties to file supplemental briefs addressing the
video footage.
4
the cash register because appellant paid for the Newport
cigarette.
Detective Blagg further testified videos of the incident
showed Johnson firing the gun. He said three shots could be
heard on the video. According to Blagg, “[T]here was a lull
between the first and second gunshot.” Blagg testified each time
Johnson fired, appellant’s body twitched; Detective Blagg
explained twitching is a typical response to a gunshot in close
proximity. Blagg further stated that as the shots were being
fired, appellant was “[v]ery slowly moving” towards the door.
Appellant “continued to observe what was going on behind the
counter.” After the shooting, Johnson continued to try to break
open the cash register and appellant left the Dairy. From the
video, it appeared to Blagg appellant was about 15 yards ahead of
Johnson as both traveled in the same direction away from the
Dairy.
In addition to Detective Blagg’s testimony, the surveillance
videos show that the Dairy was a small store. A constant stream
of customers entered and exited, but no customers appeared to be
in the Dairy at the time appellant and Johnson attempted to rob
Ruh. The small, enclosed space trapped Ruh behind a counter
when Johnson shot him three times. Johnson stood between Ruh
and the exit. Appellant was present for all three shots. The
three shots were fired in rapid succession, and in total, the three
shots occurred over less than one minute. Appellant did not
appear to say anything during the shooting and did not
intervene. When appellant left the Dairy, he was smiling.
c. Other evidence
Detective Scott Lawler testified about his interview of
appellant. During that interview, appellant said he lived with
5
Fatboy, but when Fatboy stole from appellant’s sister, appellant’s
mother told Fatboy to leave. Appellant also told Lawler that he
went alone to the Dairy to get a cigarette and he “frequently”
went to the Dairy.
Appellant further recounted, “While inside getting the
cigarette somebody came in with a gun. He [appellant] ran, or
attempted to run out but that individual was blocking the door.
He finally made it outside and heard . . . two to three gunshots as
he was running away.”
After Detective Lawler informed appellant video
surveillance depicted appellant and Johson approaching the
Dairy, appellant then changed his story as follows: “[O]n the
morning of the incident Deonta [Johnson] approached him . . . .
[Johnson] stated ‘Let’s go get a cigarette.’ That’s when both of
them left [appellant’s] house to go get a cigarette. Appellant said
that Johnson robbed the store. Appellant said that Johnson shot
Ruh. Appellant “saw” Johnson shoot Ruh with a black and
chrome semi-automatic firearm. Appellant said he did not call
the police. Appellant told Lawler he knew Ruh.
2. Court findings and sentence
The juvenile court found the following facts: Deonta
Johnson and appellant arrived at the Dairy around the same
time. Appellant entered the Dairy and asked Ruh to buy a
cigarette. “[T]his is part of a plan. . . . so that the victim will open
the cash drawer. And as soon as the victim opened the cash
drawer Deonta Johnson rushed in from the side, gun drawn, and
asked the victim for money. The victim shuts the cash drawer
and refuses to give the money to Deonta Johnson. There’s a brief
verbal exchange. And then Deonta Johnson shoots the victim
three times.”
6
The court continued: Appellant does not call “emergency
medical services, does not try to assist the victim, he does not call
911 for the sheriff’s [sic] to come.” Johnson unsuccessfully tries
to open the cash drawer and then Johnson and appellant run
“across the same open field, in the direction of the minor’s house.”
The court found, “[T]here was clearly a plan . . . [a]nd the
gun had to be part of the plan, otherwise the robbery would not
be successful.” As soon as Ruh opened the cash drawer, “Johnson
rushed in from the side of the victim with the gun drawn. So
clearly, the gun was part of the plan that was hatched to rob the
Dairy.”
Regarding reckless indifference, the court added, “The
undisputed evidence is that the minor chose the Dairy for the
robbery. The minor had been there many times before and he
knew the victim. Clearly, the victim must also have known or
known of the minor. With this in mind, how could the robbery
have been successful unless the victim was shot and killed? In
other words, how could Deonta Johnson and the minor have
gotten away with the robbery if, in fact, the victim knew who
they were or at least knew who the minor was.”
The court found appellant was a major participant in the
robbery who acted with reckless indifference to human life. The
court then sustained the petition. The court sentenced defendant
to a secure youth treatment facility for a period of 25 years to life.
DISCUSSION
A. Standard of Review
Appellant’s sole challenge is to the sufficiency of evidence
that he acted with reckless indifference to human life and that he
had intent to kill. To evaluate a substantial evidence challenge
7
“ ‘we review the record “ ‘ “in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence — that is, evidence which is reasonable, credible, and of
solid value — such that a reasonable trier of fact” ’ ” ’ could find
beyond a reasonable doubt that [appellant] acted with reckless
indifference.” (Emanuel, supra, 17 Cal.5th at p. 885.)
B. Standard for Reckless Indifference to Human Life
1. Legislation and our high court’s pre-Emanuel
precedent
Senate Bill No. 1437 amended Penal Code3 section 189 to
provide that a defendant who was not the actual killer or did not
have an intent to kill is not liable for felony murder unless he
“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)(3); Stats. 2018, ch. 1015, § 3;
People v. Strong (2022) 13 Cal.5th 698, 703 (Strong).) Section
190.2, subdivision (d) provides: “[E]very person, not the actual
killer, who, with reckless indifference to human life and as a
major participant, aids, abets, counsels, commands, induces,
solicits, requests, or assists in the commission of a felony
[including robbery] . . . which results in the death of some person
or persons, and who is found guilty of murder in the first
degree . . . shall be punished by death or imprisonment in the
state prison for life without the possibility of parole . . . .”
(§ 190.2, subd. (d).) Our high court has observed that this
definition of felony murder is based on “preexisting law governing
felony-murder special-circumstance findings . . . to determine
3 Undesignated statutory citations are to the Penal Code.
8
whether the defendant may be sentenced to death or life without
possibility of parole.” (Strong, at p. 703.)
Section 190.2 codifies the rule announced in Tison v.
Arizona (1987) 481 U.S. 137(Tison). (People v. Clark (2016)63 Cal.4th 522, 616
(Clark).) Tison and a prior United States Supreme Court case, Enmund v. Florida (1982)458 U.S. 782
(Enmund), permit imposition of the death penalty for felony murder when a defendant’s involvement is substantial and demonstrates a reckless indifference to the risk of death. The two cases “help define the constitutional limits for punishing accomplices to felony murder.” (In re Loza (2017)10 Cal.App.5th 38, 46
.) “At one end of this Enmund-Tison continuum is ‘ “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.” [Citation.]’ [Citation.] At the other end are the ‘actual
killers and those who attempted or intended to kill. [Citation.]’
[Citation.] ‘Somewhere between them . . . lies the constitutional
minimum’ showing required for the imposition of death or life
without the possibility of parole.” (Ibid.) That constitutional
minimum is the standard now incorporated into the definition of
felony murder. (§ 189.)
Enmund, supra,458 U.S. 782
involved a robbery and
murder of an elderly couple. (Id. at p. 784.) Enmund drove two
confederates to the scene and waited to help them escape. (Id. at
pp. 786, 788.) He was not present for the murder or robbery. (Id.
at p. 788.) The Supreme Court held that imposition of the death
penalty was inconsistent with the Eighth and Fourteenth
Amendments when Enmund did not kill the victims, was not
present when they were killed, and did not intend they be killed
or anticipate that lethal force would or might be used. (Ibid.)
9
The facts of Tison demonstrated a more culpable mental
state than that harbored by the defendant in Enmund. In Tison,
in an effort to help Gary Tison escape prison, the Tison family,
including sons Raymond and Ricky, “assembled a large arsenal of
weapons.” (Tison, supra, 481 U.S. at p. 139.) Family members
entered the prison carrying an ice chest filled with guns. (Ibid.)
They armed Gary Tison and his cellmate and left the prison.
(Ibid.) Gary Tison and his cellmate “brutally murder[ed]” four
“captives” who had stopped to aid the Tison family fix a flat tire.
(Id. at p. 141.) “Neither [Raymond nor Ricky] made an effort to
help the victims, though both later stated they were surprised by
the shooting.” (Ibid.) Raymond and Ricky were convicted of
felony murder for all four murders. (Ibid.)
The United States Supreme Court upheld the death
sentence and concluded Raymond and Ricky showed reckless
indifference to human life. (Tison, supra, 481 U.S. at p. 152.)
The high court reasoned Raymond Tison was prepared to kill in
furtherance of the prison break, flagged down the victims to
assist with the flat tire, robbed the victims, and guarded them at
gunpoint while the group considered their fate. Raymond “stood
by and watched the killing, making no effort to assist the victims
before, during, or after the shooting. (Id. at p. 151.) “Instead, he
chose to assist the killers in their continuing criminal
endeavors . . . .” (Ibid.) Similarly, Ricky Tison brought guns into
the prison to arm the prisoners, participated in the kidnapping
and robbery, and watched the killing without aiding the victims.
(Id. at p. 152.)
Our high court applied Enmund and Tison in People v.
Banks (2015) 61 Cal.4th 788 (Banks). In Banks, defendant
Matthews “acted as the getaway driver for an armed robbery in
10
which Leon Banks and others participated.” (Id. at p. 794.) “In
the course of escaping, Banks shot one of the robbery victims.”
(Ibid.) Matthews and two of his confederates were gang
members, but Banks was not a gang member. (Id. at pp. 795–
796, 810.) Although the gang’s primary activities included
shootings, attempted murders, and murders, “[n]o evidence was
presented that Matthews” or his fellow gang members “had killed
before, or that Matthews knew any of the three had killed
before.” (Id. at p. 796.)
Our Supreme Court reversed the felony murder special
circumstance based on its conclusion that Matthews was no more
culpable than the getaway driver in Enmund. (Banks, supra,
61 Cal.4th at p. 794.) Our Supreme Court emphasized, “a
defendant’s personal involvement must be substantial, greater
than the actions of an ordinary aider and abettor to an ordinary
felony murder such as Earl Enmund.” (Id. at p. 802.)
“Matthews, like Enmund and unlike the Tisons, did not see the
shooting happen, did not have reason to know it was going to
happen, and could not do anything to stop the shooting or render
assistance.” (Id. at p. 807.) Although Matthews knew he was
participating in an armed robbery, “nothing at trial supported the
conclusion beyond a reasonable doubt that Matthews knew his
own actions would involve a grave risk of death. There was no
evidence Matthews intended to kill or, unlike the Tisons,
knowingly conspired with accomplices known to have killed
before. Instead, as in Enmund, Banks’s killing of [the victim]
was apparently a spontaneous response to armed resistance from
the victim.” (Ibid.)
Subsequent to Enmund and Tison, courts have refined the
meaning of reckless indifference to human life. “ ‘[T]he culpable
11
mental state of “reckless indifference to life” is one in which the
defendant “knowingly engag[es] in criminal activities known to
carry a grave risk of death” [citation] . . . .’ [Citation.]” (In re
Bennett (2018) 26 Cal.App..5th 1002, 1021.)
The following nonexclusive factors are relevant to whether
defendant acted with reckless indifference to human life: (1) the
defendant’s knowledge of weapons and use of a weapon even if
the defendant did not kill the victim; (2) the defendant’s presence
at the scene of the crime and failure to aid the victim; (3) the
duration of the felony; (4) the defendant’s knowledge of a cohort’s
likelihood of killing; and (5) the defendant’s efforts to minimize
risk of violence during the felony. (Clark, supra, 63 Cal.4th at
pp. 618–623.) No single factor is “ ‘necessary’ ” or “ ‘necessarily
sufficient.’ ” (In re Bennett, supra, 26 Cal.App.5th at p. 1019.)
Our high court explained in Clark that the mental state
comprising reckless indifference “encompasses 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 [or her] actions.” (Clark, supra, 63 Cal.4th at
pp. 616–617.) The required intent has “both subjective and
objective elements. The subjective element is the defendant’s
conscious disregard of risks known to him or her. But
recklessness is not determined merely by reference to a
defendant’s subjective feeling that he or she is engaging in risky
activities. Rather, recklessness is also determined by . . . what ‘a
law-abiding person would observe in the actor’s situation.’
[Citation.]” (Id. at p. 617.)
In In re Scoggins (2020) 9 Cal.5th 667 (Scoggins), our high
court held a petitioner, who planned an unarmed assault and
was not present when a confederate shot the victim, did not act
12
with reckless indifference to human life. (Id. at pp. 671, 672,
678–679.) Scoggins further held, “ ‘[a]wareness of no more than
the foreseeable risk of death inherent in any [violent felony] is
insufficient’ ” to establish reckless indifference to human life;
“ ‘only knowingly creating a “grave risk of death” ’ satisfies the
statutory requirement. [Citation.] Notably, ‘the fact a
participant [or planner of] an armed robbery could anticipate
lethal force might be used’ is not sufficient to establish reckless
indifference to human life.” (Id. at p. 677.)
2. Emanuel
After we issued our initial opinion, our high court decided
Emanuel, which provides additional guidance regarding the
Clark factors discussed in the preceding subsection. In applying
the substantial evidence standard of review, the high court
concluded there was insubstantial evidence to support that the
defendant in that case participated in the murder with reckless
indifference to human life. (Emanuel, supra, 17 Cal.5th at
p. 875.)
Emanuel first recounted our high court’s prior cases,
including Banks, Clark, and Scoggins, in observing, “ ‘The degree
of risk to human life is crucial to the analysis[ ]’ ” of reckless
indifference to human life. (Emanuel, supra, 17 Cal.5th at
p. 884.) It further observed, the Clark factors “aid in
distinguishing those who knowingly engage in criminal activities
known to carry a grave risk of death from other felony
perpetrators. (Ibid.) Noting that the Clark factors are
“ ‘nonexhaustive’ ” (Emanuel, at pp. 884–885, quoting Strong,
supra,13 Cal.5th at p. 706
)), Emanuel also repeated Clark’s
observation that no one of the Clark factors is necessary or
necessarily sufficient. (Emanuel, at p. 885.) Finally, our high
13
court echoed Scoggins in cautioning courts to consider the totality
of circumstances to determine whether a defendant acted with
reckless indifference to human life. (Emanuel, at p. 885.) The
court, however, cautioned lower courts “to consider the presence
or absence of evidence relating to each relevant factor on its own
merits before considering the evidence in its totality.” (Id. at
p. 888.)
Emanuel applied this jurisprudence to a defendant, Louis
Sanchez Emanuel, whose confederate, Jacob Whitley, shot and
killed a drug dealer in the commission of a robbery perpetrated
by defendant and Whitley. (Emanuel, supra, 17 Cal.5th at
p. 874.) Whitley and Emanuel agreed to meet John Sonenberg
and Mansour Amini in a park in order to purchase marijuana.
(Id. at p. 876.) At 3:06 p.m. Sonenberg texted Emanuel that he
would be at the park “right now” and the shooting occurred at
approximately 3:15 p.m. (Id. at pp. 876–877.) Sonenberg died at
the scene of a close-range gunshot wound to his neck. (Id. at
p. 877.)
Emanuel’s ex-girlfriend told a police sergeant that Whitley
“told her he had ‘shot a white boy’ . . . three times” and Emanuel
“confirmed” Whitley’s statement. (Emanuel, supra, 17 Cal.5th at
p. 878.) Emanuel’s ex-girlfriend also told police that when she
saw Emanuel on the day of the shooting, he had removed “the
dreads he wore earlier in the day.” (Ibid.) Emanuel told his
ex-girlfriend, “ ‘ “I didn’t do nothing though. I didn’t do nothing.
And [Whitley] was the one who shot him.” ’ ” (Ibid.) Emanuel’s
ex-girlfriend told the police Sonenberg would not give the
marijuana to Emanuel and Whitley, and Emanuel then said,
“ ‘[Whitley,] let’s go,’ ” but Whitley would not leave. (Id. at
p. 879.) Emanuel’s ex-girlfriend reported Emanuel told her that
14
“after the shooting, he asked Whitley, ‘ “What the fuck you
doing?” ’ ” (Id. at p. 879.)
The high court first considered the “[u]se of or awareness of
the presence of weapons and knowledge of cohort’s likelihood of
killing.” (Emanuel, supra, 17 Cal.5th at p. 885, capitalization &
italics omitted.) The court noted the defendant did not use a gun
and did not know his confederate was armed. It also noted the
trial court’s finding there was no evidence demonstrating the
defendant knew Whitley was likely to use lethal force. (Ibid.)
The high court next considered the “[d]uration of the crime”
(capitalization & italics omitted) and commented neither the trial
nor appellate court addressed the duration of the felony. The
Attorney General, however, conceded the duration of the
interaction of Emanuel, Whitley, and the victim in total was not
likely more than 12 minutes, and the duration of the violent
contact between Whitley and the victim “ ‘presumably’ ” even less
than that. (Emanuel, supra, 17 Cal.5th at p. 886.) The court
then cited evidence Whitley shot the victim during a brief
struggle and there was no prolonged period of restraint when,
during the violence that ensued, the victim refused to relinquish
the marijuana. (Ibid.) Our high court concluded, “The Clark
factor concerning duration of the crime therefore is neutral in
this case; it did nothing to heighten the risk of violence beyond
that inherent in the robbery itself.” (Ibid.)
The next Clark factor Emanuel considered was “efforts
taken to minimize violence.” (Emanuel, supra, 17 Cal.5th at
p. 887, capitalization & italics omitted.) The high court
recognized, “We have never required direct evidence that a felony
was planned a certain way for the express purpose of minimizing
the risk of violence; circumstantial evidence regarding the plan
15
itself may suffice.” (Ibid.) The court credited Emanuel’s
planning “to participate in a robbery in a public location during
daylight hours. The crime occurred in the open where witnesses
might be present to observe from the park, passing vehicles, or
nearby residences.” (Ibid.) The court added there was no
evidence Emanuel knew Whitley had a propensity for violence
and concluded, “This factor therefore does not support a finding
of reckless indifference.” (Ibid.)
The high court then addressed the defendant’s “[p]hysical
presence at the scene and opportunity to restrain confederates or
aid victims.” (Emanuel, supra, 17 Cal.5th at p. 888,
capitalization & italics omitted.) It concluded defendant
“attempted to act as a restraining influence” by advocating that
he and his confederate “leave.” (Id. at p. 891.) Specifically,
defendant said, “ ‘[L]et’s go,’ ” and “began walking away from the
robbery.” (Ibid.) The high court interpreted this evidence as
providing “crucial insight into Emanuel’s state of mind. When
met with resistance, Emanuel abandoned the plan rather than
resort to greater violence.” (Ibid.) In disagreeing with the
Attorney General’s argument the defendant could have done
more, our high court emphasized, “The focus should not be on the
ultimate efficacy of his actions, but on what his actions reveal
about his mental state. The courts below did not carefully
consider evidence bearing on Emanuel’s state of mind but rather
simply judged that he had not employed an adequate measure of
restraint.” (Ibid.) The court further cautioned faulting a
defendant for not intervening when a crime unfolds quickly:
“[T]he failure to restrain a cohort — cannot be said to weigh in
favor of a finding of reckless indifference without some evidence
16
in the record indicating that the defendant had a meaningful
opportunity to do so. (Id. at p. 892.)
In addressing the defendant’s failure to aid the victim and
running away from the scene, Emanuel noted the difficulty in
drawing inferences about a defendant’s state of mind from
defendant’s flight from the scene. Flight could support the
inference the defendant merely wanted to avoid arrest or instead,
that defendant had “reject[ed] . . . the shooter’s actions.”
(Emanuel, supra, 17 Cal.5th at pp. 893–894.) The court advised
caution in inferring a defendant’s state of mind merely from
postflight conduct and held postflight conduct alone is
“insufficient” to support murder liability: “However
contemptable we may find a defendant’s conduct following a
killing, the governing standard is not satisfied by evidence that
the defendant was generally indifferent to the fact that someone
has been killed; it requires evidence that, at the time of the
shooting, the defendant acted with indifference toward the grave
risk that someone could be killed. Though the former may be
evidence of the latter, it is insufficient, standing alone, to support
murder liability.” (Id. at p. 895.)
Based on the totality of the circumstances, the high court
concluded there was insufficient evidence that the defendant had
acted with reckless indifference to human life. (Emanuel, supra,
17 Cal.5th at pp. 895–896.) It reasoned (1) the crime occurred in
daylight in a public place; (2) the defendant was not armed and
did not know his confederate was armed or likely to use lethal
force; (3) the crime occurred “without a prolonged period of
restraint”; (4) the defendant suggested aborting the robbery when
the victim resisted; and (5) the defendant’s postshooting flight
without rendering aid was “ambiguous.” In sum, “nothing in the
17
plan . . . ‘elevated the risk to human life beyond those risks
inherent in any armed robbery,’ much less a planned unarmed
robbery.” (Emanuel, at p. 895, quoting Clark, supra,63 Cal.4th at p. 623
.)
Finally, the high court declined to consider the significance,
if any, of the defendant’s age (21 years) because that issue had
not been raised in the lower courts. (Emanuel, supra, 17 Cal.5th
at p. 885, fn. 6.)
C. Under Emanuel, No Substantial Evidence Supports
the Juvenile ’s Court’s Finding That Appellant Acted
with Reckless Indifference to Human Life
Emanuel makes certain principles clear in applying the
Clark factors. First, we must consider each factor separately
before reviewing the totality of the circumstances. Second, the
duration of the crime may be relevant to more than one factor.
Third, a defendant’s flight from the scene is not sufficient, by
itself, to support murder liability. Finally, the evidence must
support a greater risk of death than that inherent in an armed
robbery.
1. Appellant’s use of, or awareness of, the
presence of weapons and knowledge of cohort’s
likelihood of killing
Appellant’s providing the weapon to his companion,
contrasts with Emanuel, where the defendant did not know his
confederate was armed. Here, though, there was no evidence of
Fatboy’s propensity for violence or that Fatboy was otherwise
likely to use the gun to shoot Ruh.
Appellant did not personally use the gun. M.H. testified
appellant told her he did know Fatboy would use the gun to shoot
18
Ruh. Instead, appellant told her the robbery did not “go as
planned” because Fatboy shot the cashier, and that “was not
supposed to happen.”
2. Duration of the crime
The videos demonstrate the robbery and murder lasted less
than one minute. This is far less than the 9 to 14 minute time
frame in Emanuel. (Emanuel, supra, 17 Cal.5th at p. 886.) As in
Emanuel, there was “no prolonged period of restraint . . . .”
(Ibid.) Also as in Emanuel, the short duration suggests that
there was “nothing to heighten the risk of violence beyond that
inherent in the robbery itself.” (Ibid.)
3. Efforts taken to minimize the risk of violence
In Emanuel, the court emphasized that this factor concerns
“[e]fforts at the planning stage to minimize the potential for
violence.” (Emanuel, supra, 17 Cal.5th at pp. 887–888.)
“Emanuel planned to participate in a robbery in a public location
during daylight hours. The crime occurred in the open where
witnesses might be present to observe from the park, passing
vehicles, or nearby residence.” (Id. at p. 887.) Based on those
facts, the high court concluded this factor did not support a
finding of reckless indifference.
Here, like in Emanuel, Johnson and appellant planned the
robbery during daylight hours. In contrast to Emanuel, the
location was not in the open, but inside a small store, where
Johnson trapped Ruh behind a counter.
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4. Physical presence at the scene and opportunity
to restrain confederates or aid victims
In Emanuel, the high court found Emanuel “attempted to
act as a restraining influence.” (Emanuel, supra, 17 Cal.5th at
p. 891.) As set forth above, he “advocated that he and Whitley
leave.” (Ibid.) Emanuel said, “ ‘[L]et’s go” and “began walking
away from the robbery.” (Id. at p. 891.) “Emanuel abandoned
the plan rather than resort to greater violence.” (Ibid.)
The high court explained although we must consider
whether a defendant acts as a restraining influence on his
cohorts, it is not incumbent on a defendant to actually prevent
the violence or attempt to do so by any means necessary.
(Emanuel, supra, 17 Cal.5th at p. 891.) The high court cautioned
that the “focus should not be on the ultimate efficacy of
[Emanuel’s] actions, but on what his actions reveal about his
mental state.” (Ibid.) The high court emphasized, “where
violence unfolds ‘quickly,’ a defendant may ‘lack[ ] control’ over
the actions of his confederates.” (Id. at p. 892.)
We acknowledge that in contrast to Emanuel, there was no
evidence here appellant attempted to act as a restraining
influence. He did not say, “[L]et’s go,” but watched as Johnson
shot Ruh multiple times. Yet, there also was no showing
appellant had control over Johnson’s conduct and the videos
clearly show the shooting occurred very quickly. Respondent’s
contention that “appellant could have minimized the risk to life
or acted as a restraining influence” is thus not supported by the
record. The violence unfolded in less than a minute, which
did not afford appellant the opportunity to stop Johnson or act as
a restraining influence.
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5. Totality of the circumstances
Considering the totality of the circumstances, and
measured against Emanuel’s guidance, the evidence does not
support the juvenile court’s finding that appellant acted with
reckless indifference to human life. Appellant told his
ex-girlfriend the plan was only to scare Ruh with the gun, not to
kill him. The Emanuel court credited a similar arguably self-
serving statement in relying on the defendant’s statement to his
ex-girlfriend that he had told his confederate, “[L]et’s go.”
(Emanuel, supra, 17 Cal.5th at p. 879.) The short duration of the
crime provided appellant no meaningful opportunity to restrain
Johnson or to aid Ruh. Although appellant supplied the gun to
Johnson and knew Johnson was a gang member, there was no
evidence appellant knew Johnson would shoot and kill Ruh or
knew more generally that Johnson had a propensity to use a
firearm.
As also set forth earlier in our Discussion, Emanuel took a
chary view of concluding reckless indifference from a defendant’s
postshooting conduct: “ ‘[W]hen different inferences may be
drawn from the circumstances, the defendant’s actions after the
shooting may not be very probative of his mental state.’
[Citation.]” (Emanuel, supra, 17 Cal.5th at p. 893.) As one
example, Emanuel, noted postshooting flight may be indicative
merely of not wanting to be arrested, and not the defendant’s
state of mind at the time of the killing. Similarly, here, one could
infer a desire to prevent arrest rather than reckless indifference
from appellant’s false and different renditions to Lawler about
the robbery. Given Emanuel, appellant’s possession of the gun
and statement after the shooting that the gun had “a body on it”
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do not inform us about his mental state at the time of the
shooting. (See Emanuel, at p. 894.)
Appellant’s smile after the shooting is also subject to
multiple inferences. It may support an inference appellant was
pleased with what occurred at the Dairy. On the other hand, his
smile may be reflective of his immaturity and wanting to be
accepted by Johnson, or it may have been the product of shock
that the robbery resulted in Ruh’s death.4 (See J.D.B. v. North
Carolina (2011) 564 U.S. 261, 273[“children characteristically lack the capacity to exercise mature judgment and possess only an incomplete ability to understand the world around them”]; see also People v. Hardin (2024)15 Cal.5th 834
, 844 [children are more vulnerable than adults to negative influences and outside pressures including from their peers]; In re Moore (2021)68 Cal.App.5th 434
, 454 [“defendant’s youth is a relevant factor
in determining whether the defendant acted with reckless
indifference to human life”].)
D. No Substantial Evidence Supports the Juvenile
Court’s Finding That Appellant Harbored Intent To
Kill Ruh
Finally, the juvenile court’s finding that Ruh “must have
known” appellant and therefore appellant must have intended to
shoot Ruh in order for the robbery to be successful is not
supported by substantial evidence. No witness testified Ruh
actually knew appellant, or more generally, knew the Dairy’s
customers. The court’s conclusion that appellant “must have”
intended to kill Ruh is also not supported by the evidence and not
4 The video footage does not clearly show when appellant
started smiling.
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in keeping with Emanuel’s guidance. Appellant told M.H. the
plan was to scare Ruh and the events did not unfold as planned.
The record contains no evidence supporting the court’s inference
appellant intended to kill Ruh to prevent Ruh from later
identifying him.
DISPOSITION
The court’s order sustaining the petition and the court’s
disposition order are reversed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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