Filed 1/6/22 P. v. Rivera CA4/2 Opinion following court’s order to vacate prior opinion NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E075838
v. (Super.Ct.No. FVI800549)
CHRISTOPHER SHANE RIVERA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael B. Harris,
Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed.
Spolin Law, Aaron Spolin and Caitlin Dukes for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Alan L. Amann and A. Natasha
Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
1 FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On October 6, 2010, a jury convicted defendant and appellant Christopher Shane
Rivera of first degree murder under Penal Code1 section 187, subdivision (a) (count 1);
attempted robbery as a lesser included offense of robbery under sections 664 and 211
(count 2); and first degree residential burglary under section 459 (count 3). With respect
to all three counts, the jury found a principle was armed with a firearm, but found not true
the allegations that defendant personally discharged a firearm. The trial court sentenced
defendant to an indeterminate term of 25 years to life for the murder, and eight years for
the attempted robbery and burglary.
After defendant appealed, we affirmed the judgment. (People v. Rivera (Apr. 18,
2012, E052339) [nonpub. opn].)
On January 2, 2019, defense counsel filed a petition for resentencing under section
1170.95. The People stipulated to the fact that defendant stated a prima facie case for an
order to show cause and an evidentiary hearing because of the jury’s not true finding on
the personal gun use allegation.
The trial court conducted an evidentiary hearing. Following briefing by the parties
and a review of the underlying trial transcripts and argument, on August 10, 2020, the
trial court found defendant ineligible for resentencing because he was a major participant
in the felony murder and acted with reckless disregard for human life.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 On September 28, 2020, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY2
“On the evening of March 6, 2008, Lucas Buckingham was partying in his
apartment with the murder victim, Atencio, Atencio’s brother Andrew, and a friend of
Andrew’s. They were drinking and doing drugs. They went to sleep between 2:00 a.m.
and 4:00 a.m. Atencio slept on the living room couch. Andrew and his friend left the
apartment between 7:30 a.m. and 8:00 a.m. At that time, Atencio was in the living room
talking on the telephone with his fiancé.
“Later that day, Troy Fava, Peter Lewis, Charles Carr, and defendant arrived at
Buckingham’s apartment complex in two cars. Fava and Lewis were in one car and
defendant and Carr were in defendant’s sister’s BMW. After exiting their vehicles they
walked through the complex to Buckingham’s apartment. They entered through an
already open front door.
“Carr testified that at the time of entry, Atencio was seated on the living room
couch. He testified that defendant, Fava, and Lewis went into Buckingham’s bedroom,
and he remained at the doorway to the apartment. Defendant testified that as they walked
in, Atencio stood up and asked, ‘[w]hat’s going on?;’ after being asked where
Buckingham was, one of the group pushed Atencio into a chair.
2 The facts are taken from the unpublished opinion in case No. E052339.
3 “Buckingham testified that after going to sleep in the early morning hours, the
next thing he remembered was that it was daylight and Fava was straddling him on the
bed and punching him. Buckingham indicated that Lewis was behind Fava and there was
another person in the doorway he did not recognize. Fava then pulled him to the floor
and continued punching him while Lewis was holding a black semiautomatic pistol.
After Fava stopped beating Buckingham, Lewis asked where the stash was; Fava
indicated to Lewis that that was not what they were there for, and that they needed to do
what they came to do. Lewis then put down the gun, took his gloves off, and started to
choke Buckingham.
“Defendant testified that after entering the apartment, he and Fava went to
Buckingham’s bedroom and Carr and Lewis remained in the front room with Atencio.
As Fava was beating Buckingham, defendant stood at the door. In a statement to an
investigating officer, defendant indicated it was he who asked Buckingham where the
money and drugs were. He further testified that at some point Lewis entered the room
and started beating on Buckingham.
“Buckingham testified that as he was being choked by Lewis, things began to go
fuzzy. He then heard from the living room a large thud, which was followed by
gunshots. Looking from his bedroom he could see Lewis standing in the area where the
carpet joins the kitchen linoleum, shooting a firearm. Lewis was facing the front door.
Two guns were being fired. He believes he heard approximately 15 gunshots. He then
heard Fava say, ‘[w]e’ve got to leave now,’ and they left the apartment.
4 “Carr testified that as he was standing at the door to the apartment he heard sounds
of fighting coming from the bedroom. During this time, Atencio got off the couch and
went towards the hallway leading to the bedroom; as Atencio turned, Carr saw a gun in
Atencio’s right hand. Carr immediately ran from the apartment. As he was running he
heard about 10 shots being fired. Defendant testified that as Lewis was beating up
Buckingham he heard a commotion in the living room. He then saw Atencio moving
towards the living room with a gun. Defendant went back into the bedroom and got on
the floor; at this point, gunshots started; after they stopped, he ran outside.
“Buckingham indicated that after the shooting stopped he went outside; Atencio
was lying on the ground bleeding with a bullet in his chest. Atencio was breathing at that
point. After Buckingham called 911, he watched Atencio die. He did not see any
firearms in the vicinity of Atencio.
“After leaving the apartment, defendant ran to his car. As he was leaving the
apartment complex he stopped to pick up Carr. Carr testified they drove to Carr’s house.
When they got there, defendant pulled two guns from his jacket and indicated that he
needed to do something with them. Defendant told Carr that Atencio would not stop
shooting and that he had to shoot back. He indicated he did not know how many times he
fired and that he just hung the gun around the corner and fired. He was unsure if he shot
Atencio. Defendant told Carr that as he was leaving the apartment Atencio was lying on
the ground and still moving; defendant picked up a gun lying near Atencio.
5 “Carr further testified that after going to defendant’s house they drove into the
desert and hid the guns in some rocks. At the time of the incident, Steven Pennington
was on homicide detail with the San Bernardino County Sheriff’s Department. He
testified that he interviewed Carr in the early morning hours of March 8. Carr pointed
out the area where the guns were hidden. He located a Glock model 22 and a Sig P226.
“William Matty, a criminalist with the State of California Department of Justice,
testified that he examined a Glock model 22 and a Sig Sauer nine-millimeter. Three of
the cartridges collected at the apartment were fired by the Glock pistol. Two other
cartridges were fired by the Sig Sauer pistol. The two bullets retrieved during the
autopsy could not have been fired by the Glock, but could have been fired by the Sig
Sauer. The Sig Sauer was owned by William Rivera, defendant’s father.
“Hazel Whitworth, a criminalist with the sheriff’s crime laboratory, testified that
Atencio had gunshot wounds to the chest area. He was somewhere in the entryway of the
apartment when a bullet hit him in the heart. Dr. Chanikarn Changsri, a deputy medical
examiner with the San Bernardino County Sheriff’s Coroner’s Division, indicated that the
cause of Atencio’s death was a bullet that penetrated between the ribs and went into the
heart.
“The defense was premised on the notion that Carr was the shooter. Defendant’s
father testified that on the day before the shooting he was going to take his Sig Sauer
pistol to the shooting range. Prior to going, he took the gun (in its case) from his safe and
put it in his pickup truck. Thereafter, and at the behest of his wife, he agreed to go to San
Diego for the weekend. As they were packing to leave for San Diego, he noticed the gun
6 case in his pickup; rather than take it back into the house, he placed it on the rear
floorboard of his daughter’s BMW. Defendant testified he did not know of the presence
of the gun. On the morning of the shooting, he drove his sister’s BMW and picked up
Carr; the two of them went to Fava’s house. Lewis was at Fava’s house. The rag top on
the BMW was down. Carr and others had access to the inside of the car during the period
of time they were at Fava’s house.
“Defendant testified that as he was leaving the apartment after the shooting he
passed by Atencio; there were no objects on the ground around the victim. As he was
leaving the complex in his car, he picked up Carr. When they arrived at Carr’s house,
and while defendant was on the telephone with Fava’s sister, he noticed that Carr had a
gun on his lap. Thereafter, Carr pulled another gun from a pocket of his hoodie. Shortly
thereafter they went into the desert and Carr hid the guns in a rock pile.” (People v.
Rivera, supra, E052339.)
DISCUSSION
A. THE TRIAL COURT PROPERLY FOUND DEFENDANT INELIGIBLE
FOR RELIEF UNDER SECTION 1170.953
In this case, the trial court denied defendant’s petition at the final stage of review,
finding beyond a reasonable doubt after a hearing pursuant to section 1170.95,
3 We are aware of the Supreme Court's recent opinion in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), addressing the appropriate stage in section 1170.95 proceedings for appointment of counsel. This is not an issue in this case because the trial court appointed counsel for defendant, the parties briefed the petition, and the trial court held a hearing to determine whether defendant made a prima facie case for relief.
7 subdivision (d)(1), that defendant was ineligible for resentencing because he was a major
participant and acted with reckless indifference to human life. Defendant contends that
the trial court erred in finding him ineligible for relief because there was insufficient
evidence that he was a major participant in the underlying robbery and burglary, and that
he acted with reckless indifference to human life. For the reasons set forth post, we find
that the trial court properly found defendant ineligible for relief under section 1170.95.
1. ADDITIONAL FACTS FROM THE SECTION 1170.95 HEARING
Here, at the section 1170.95 hearing, the parties relied on the record of conviction
and did not introduce additional evidence. In addition, the parties provided extensive
briefing.
The prosecutor primarily relied on defendant’s statements to Detective Gaffney
during defendant’s police interview, which was admitted at trial as Exhibits 79 (the video
of the interview) and 79a4 (the transcript of the interview). The prosecutor argued that
defendant’s own statements reflected his major role in planning the assault and robbery
of Buckingham, which led to the death of Atencio. Defendant was aware of the
escalating violence between Fava, Lewis and Buckingham because Fava and Lewis told
defendant about their recent encounter wherein they assaulted and robbed Buckingham.
Moreover, defendant participated in a second incident that involved Buckingham wherein
defendant and two of his cohorts tried to assault Buckingham. Buckingham, however,
4 Exhibit 79a from the underlying trial is part of the clerk’s transcript from the trial at pages 554 through 611. The People attached a copy of the interview as Exhibit 5 in its pleadings in the clerk’s transcript on this appeal at pages 221 through 277.
8 escaped by brandishing a weapon and driving away. Buckingham damaged defendant’s
car while escaping.
The prosecutor stated: “So repeatedly during the conversation with Sergeant
Gaffney [defendant] refers to what the plan was before going over to Buckingham’s
apartment and it is consistent, although he uses different language, consistently the plan
is to both assault and take his stuff, and it is clear from the statements that [defendant]
knew what was going to go down and voluntarily agreed to be a part of it, and in one of
these he specifically mentions that he wanted to go over there because ‘I need money.
He needs to pay for that bumper.’ So he had an individual reason for going over as well.”
The prosecutor also recounted that on the day of the murder, defendant met with
Fava and Lewis before going to Buckingham’s. They discussed how Fava and Lewis
were going to ”Fuck up” and “hurt” Buckingham, while defendant intended to rob
Buckingham. Defendant was not only aware that Buckingham possessed guns but he
also knew that Lewis always carried a gun and that their confrontations were escalating.
Additionally, the prosecutor pointed out that defendant took the gun actually used
to kill Atencio. The gun, a Sig Sauer, was registered to defendant’s father.
Furthermore, the prosecutor observed that defendant, during his interview,
admitted that he, Fava and Lewis entered Buckingham’s apartment without invitation.
Defendant then watched as Fava and Lewis pushed Atencio down on a chair, and that
defendant entered Buckingham’s bedroom with his cohorts while Buckingham was
asleep. Defendant watched as his companions beat and strangled Buckingham to the
point that Buckingham thought he was going to die. Defendant used that as an
9 opportunity to try and rob Buckingham. Defendant was also placed in the vicinity of the
shooter, based on ballistics and defendant’s own testimony. Defendant did not stop the
shooting, render aid or call police. He admitted that his main focus was to flee the scene.
The prosecutor stated: “Whether the defendant’s own actions or inactions played
a role in the death. Here we have strength in numbers. Four people who went over to
participate in a home invasion robbery. [Atencio] was significantly out numbered.
[Atencio] used Buckingham’s firearm in a attempt to [repel] the home invasion robbers.
[Defendant] chose to go with the other three to the apartment. He chose to park in the
same area as Peter Lewis where there was an escape advantage on the other side of the
complex. He chose to make entry without invitation into the bedroom. He chose to stand
in the doorway while Fava and Lewis beat up Lucas Buckingham. He chose to look for
items of value while beating him up, and he chose to remain and do these things even
when he could no longer plausibly say, I thought we were going over there to talk. [¶]
. . . [¶] Whether the defendant acted in a particular way after lethal force was used, he
ran out of the apartment, ran past the victim, victim’s on the group, he’s moving, he’s still
alive, which [defendant] admits. He didn’t stop to help [Atencio]. He didn’t call the
police. He specifically said he didn’t want to be involved with the police. He knew there
was just a gun battle. [¶] He specifically said that his main focus was getting away,
fleeing the scene, . . . and he says he didn’t call 911. Wasn’t thinking about, maybe an
ambulance needing to respond. So those are the factors with regard to major participant.”
10 The prosecutor then moved on to defendant’s reckless disregard for human life
during the commission of the crimes. The prosecutor noted the overlaps between
participating and reckless disregard—“there’s a lot of overlap but knowledge of weapons
is one, use and number of weapons is one, proximity to the crime and opportunity to stop
the killing or aid the victim, duration of the conduct whether the murder came at the end
of a prolonged period, restraint of the victims by the defendant, awareness of the
defendant that his or her confederate was likely to kill, and the defendant’s efforts to
minimize the possibility of violence during the crime.”
The prosecutor reiterated that the gunfire occurred after a prolonged period of
restraint of the victims by defendant and his cohorts, not mere seconds but minutes. The
prosecutor also emphasized that defendant made no effort to render aid to Atencio. The
prosecutor, therefore, concluded that a jury could look at the factors and find beyond a
reasonable doubt that defendant was guilty of felony murder under the new definition,
which required defendant to be a major participant in the felony, who acted with reckless
disregard for human life.
At the hearing on the motion, defense counsel argued that defendant was neither a
major participant nor acted with reckless disregard for human life. Counsel relied on
defendant’s trial testimony. He argued that defendant was only vaguely aware of the
initial incident involving Buckingham and that in the second confrontation, his cohorts
only relayed Buckingham’s brandishing of a gun during their 20-minute pursuit. Defense
counsel reasoned that the second incident supported defendant’s claim that his motive in
going to Buckingham’s was to collect money to repair his car. Defendant denied
11 knowing that his father’s gun was in his sister’s car. His father testified that he had
unexpectedly placed the gun in his daughter’s car; defendant drove that car on the day of
the murder. Defense counsel further pointed out that defendant testified they did not
discuss firearms before the planned assault and robbery. Additionally, defendant did not
fight anyone, and defendant testified that he hid in the bedroom when gunshots started to
fire.
At the conclusion of the hearing, the trial court found that the prosecutor met his
burden of proof. The court first addressed the notion that the day of the murder involved
a regular robbery—the court found that it did not. The court relied on the “language that
we’ve discussed” to find violence was contemplated, not just robbery.
Second, the court then found evidence of planning among defendant and his
cohorts because they had different motives for going to Buckingham’s, and had discussed
them in advance. The court stated, “Well that necessarily implies that there was some
type of conversation, for one person to know of the other person’s motive.”
Third, the court concluded that defendant had knowledge that his father’s gun was
in the car and found contrary testimony not credible. The court also noted it was
unreasonable to conclude that defendant and his cohorts never discussed firearms given
their prior experience with Buckingham. The court then observed, “lo and behold there’s
a firearm that appears in the convertible.” The court rejected as unreasonable that
defendant did not know the gun was in his sister’s car but his cohorts knew about the gun.
The court went on to state that when defendant took the stand, “There was no
reaction. . . . There was no reaction about finding that it was indeed his father’s weapon,
12 how he recognized it, how it got back to either his sister’s car or to [his father’s] safe. So
that whole version to me is unreasonable and I find that a jury would reject it. So as to
major participant I do find that there’s connection to the weapon.”
Additionally, the trial court noted that there was evidence defendant went from
room to room witnessing his cohorts carrying out different aspects of the crime. The
court observed that defendant could be viewed as a ringleader. Furthermore, the trial
court found that in addition to the planning and defendant’s connection to the gun, the
fact that defendant provided the transportation, which contained the gun, and his post-
shooting behavior, established that defendant was a major participant beyond a
reasonable doubt.
As to the reckless disregard for human life, the trial court found that the same
circumstances establishing major participation established the reckless disregard for
human life component as well. The court emphasized the fact that the “violence was
planned . . . and you know that they are known to be strapped, you know that this is a
likelihood for some type of violence.” Defendant observed the violence, including
strangulation. Moreover, even if defendant had a separate motive to get compensation
for the damage to his mother’s car, he knew that his cohorts planned “to F someone up
who was strapped” as well. The trial court sated that the evidence “show[ed] a reckless
indifference for human life and in the totality of the evidence I find that the People have
met their burden of proof beyond a reasonable doubt and the petition for resentencing is
denied.”
13 2. ANALYSIS
Effective January 1, 2019, Senate Bill No. 1437 (Sen. No. 1437) was enacted 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 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 accomplished this by amending section 188, which defines
malice, to add a requirement that all principals to a murder must act with express or
implied malice to be convicted of that crime. (Stats. 2018, ch. 1015, § 2, subd. (a).) It
also amended section 189, which defines the degrees of murder, by adding a condition to
the felony-murder rule. Henceforth, in order to be convicted of felony murder, a
defendant who was neither the actual killer nor a direct aider and abettor to the murder
must have been a major participant in the underlying felony who acted with reckless
indifference to human life. (Stats. 2018, ch. 1015, § 3, subd. (d)(3); see Lewis, supra, 11
Cal.5th at pp. 959-960; People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
“In addition to substantively amending sections 188 and 189 of the Penal Code,
[Sen. No. 1437] added section 1170.95, which provides a procedure for convicted
murderers who could not be convicted under the law as amended to retroactively seek
relief.” (Lewis, supra, 11 Cal.5th at p. 959.) Thus, section 1170.95 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,
14 subd. (a).) The section goes on to describe what must be included in a petition for
resentencing, and sets forth the procedure to be followed by a trial court upon receiving
such a petition.
In its initial review of whether a petitioner has made a threshold showing that he
or she falls within the provisions of section 1170.95, the court examines whether the
petitioner has stated eligibility for relief. A petitioner must allege: (1) an accusatory
pleading was filed against him or her allowing prosecution under the felony-murder rule
or the natural and probable consequences doctrine (§ 1170.95, subd. (a)(1)); (2) he or she
was convicted of first or second degree murder following a trial, or pleaded guilty to first
or second degree murder in lieu of a trial at which he could have been so convicted (id.,
subd. (a)(2)); and (3) he or she could not today be convicted of first or second degree
murder because of the 2019 amendments to sections 188 and 189 (id., subd. (a)(3)).
If the petitioner meets this facial showing of eligibility, the court must appoint
counsel and entertain briefing from the prosecutor and appointed counsel. If, after
briefing, the petitioner has established a prima facie case he or she is entitled to relief,
i.e., if a showing regarding his or her eligibility has been made, the court must issue an
order to show cause, and thereafter hold a full hearing to determine whether petitioner is
entitled to relief. (§ 1170.95, subds. (c) & (d)(1); see also Lewis, supra, 11 Cal.5th at pp.
959-960.) “If the trial court determines that a prima facie showing for relief has been
made, the trial court issues an order to show cause, and then 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 in the same manner as if the petitioner
15 had not . . . previously been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.’ [Citation.] ‘The prosecutor and the petitioner may rely
on the record of conviction or offer new or additional evidence to meet their respective
burdens.’ [Citation.] At the hearing stage, ‘the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (Lewis, at p. 960.)
To be eligible for resentencing, defendant must show that he “could not be
convicted of first or second degree murder because of changes to Section 188 or 189
made effective” in Sen. No. 1437. (§ 1170.95, subd. (a)(3).) As we have described ante,
Sen. No. 1437 amended section 189 to require, in all felony-murder cases, proof that the
defendant was the actual killer, acted with the intent to kill, or “was a major participant in
the underlying felony and acted with reckless indifference to human life.” (§ 189, subd.
(e)(3); see People v. Gentile (2020) 10 Cal.5th 830, 841-843.)
At the final eligibility hearing, the prosecution must “prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3); see also
Lewis, supra, 11 Cal.5th 952, 960.)
We recognize that there is currently a split in authority on what legal standard a
trial court should apply at a section 1170.95, subdivision (d) hearing. In People v. Duke
(2020) 55 Cal.App.5th 113, 123 (review granted Jan. 13, 2021, S265309) Division One
of the Second District Court of Appeal concluded the applicable standard is akin to
substantial evidence review. That is, “[t]o carry its burden, the prosecution must . . .
prove beyond a reasonable doubt that the defendant could still have been convicted of
16 murder under the new law—in other words, that a reasonable jury could find the
defendant guilty of murder with the requisite mental state for that degree of murder. This
is essentially identical to the standard of substantial evidence.” (Id. at p. 123.)
Division Two of the Second District Court of Appeal, however, rejected this view
in People v. Fortman (2021) 64 Cal.App.5th 217, review granted July 21, 2021, S269228.
There, the court held “that, at the hearing contemplated by section 1170.95, subdivision
(d), the People are required to prove to the trial court beyond a reasonable doubt that the
petitioner is guilty of murder on a theory of murder valid after [Sen. No.] 1437’s
enactment.” (Id. at p. 226; see People v. Lopez (2020) 56 Cal.App.5th 936, 949 (Lopez),
review granted Feb. 10, 2021, S265974; People v. Duchine (2021) 60 Cal.App.5th 798,
814 [“idea that the prosecution must prove beyond a reasonable doubt that there is
substantial evidence in a prior record to support a hypothetical finding of guilt on a
theory of murder that may never have been presented to a jury is beyond”
incomprehensible]; People v. Clements (2021) 60 Cal.App.5th 597, 617-618, review
granted Apr. 28, 2021, S267624; People v. Hernandez (2020) 60 Cal.App.5th 94, 103;
People v. Rodriguez (2020) 58 Cal.App.5th 227, 241-242, review granted Mar. 10, 2021,
S266652.)
Our Supreme Court will resolve this split in Duke, but until it does, “we join the
growing chorus that requires an independent finding by the trial court,” and proof beyond
a reasonable doubt by the People that the petitioner is ineligible for relief. (People v.
Fortman, supra, 64 Cal.App.5th at p. 221.)
17 Although section 1170.95 establishes a multi-stage review process for the trial
court to determine a defendant’s eligibility, the statute does not indicate that, when we
review the trial court, we should repeat the final stage of that process with no deference
to the trial court’s findings. We join the other courts that have considered this question in
holding that it applies to the review of final eligibility hearings under section 1170.95 as
well. (See Lopez, supra, 56 Cal.App.5th at pp. 953-954; People v. Clements, supra, 60
Cal.App.5th at p. 618.)
When reviewing for substantial evidence, “ ‘ “the court ‘must review the whole
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 the defendant guilty beyond a
reasonable doubt.’ ” ’ ” (Lopez, supra, 56 Cal.App.5th at p. 950.)
3. SUBSTANTIAL EVIDENCE SUPPORT’S THE TRIAL COURT’S
FINDING
Under the substantial evidence standard of review, we find that substantial
evidence supports the trial court’s finding that defendant was a major participant who
acted with reckless indifference to human life in the robbery/burglary.
In People v. Banks (2015) 61 Cal.4th 788 (Banks) the Supreme Court set out a
series of factors relevant to determining whether a defendant’s participation in a felony
“was sufficiently significant to be considered ‘major.’ ” (Id. at p. 803.) These factors
are: “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?
18 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?” (Ibid., fn. omitted.)
After listing the relevant factors to determining whether a defendant was a major
participant, the Supreme Court in Banks cautioned that “[n]o one of these considerations
is necessary, nor is any one of them necessarily sufficient. All may be weighed in
determining the ultimate question, whether the defendant’s participation ‘in criminal
activities known to carry a grave risk of death [citation] was sufficiently significant to be
considered ‘major.’ ” (Banks, supra, 61 Cal.4th at p. 803.)
Subsequently, in People v. Clark (2016) 63 Cal.4th 522 (Clark), the Supreme
Court elaborated on the Banks case. To determine whether a defendant exhibited a
reckless indifference to human life, a court should look at: the defendant’s knowledge of
weapons, including the use and number of weapons; the defendant’s proximity to the
crime and opportunity to stop the killing or aid the victim; the duration of the offensive
conduct and “whether a murder came at the end of a prolonged period of restraint of the
victims by defendant”; the defendant’s awareness that his cohorts were likely to kill; and
the defendant’s efforts to minimize the possibility of violence during the crime. (Clark at
pp. 616-623.)
19 Applying the Banks and Clark factors, as the trial court did in this case, we find
that substantial evidence supports the finding that defendant was a major participant in
the burglary/robbery and that he acted with indifference to human life during the
commission of the crimes.
a. Defendant Was a Major Participant
First, substantial evidence supports the trial court’s finding that defendant was
closely involved with the planning and execution of the armed robbery/burglary.
Defendant admitted to the detective during his interview that he was part of the plan to go
to Buckingham’s apartment to “fuck him up” and to rob him. He stated: “Um, pretty
much, it was, we’re gonna go over there and beat him up, take, take, take his stuff, ya
know, ya know, try to hurt him”; “[t]hey were gonna fuck him up, ya know, I’ll take
some of the money that they take out of his pocket.” Defendant even acknowledged that
he knew Buckingham to be armed, generally, since he used to work in a gun store and
was a drug dealer. Defendant also told the detective that Lewis always carried a gun.
Moreover, recently, there were two violent confrontations between Buckingham
and some or all of the involved parties during which Buckingham was armed and the
confrontations had escalated to include a threat by Buckingham to shoot Fava in the head.
Additionally, defendant confirmed that he was aware of the first incident between Fava,
Lewis and Buckingham. In that incident, Fava and Lewis had gone to Buckingham’s to
confront him over selling drugs to a friend’s son and threatening to take her stuff to pay
for his debt. The incident ended with Fava and Lewis assaulting Buckingham and taking
drugs, money, and a gun. In response, Buckingham started calling and threatening Fava
20 and Fava’s family if Fava did not return what he had stolen and pay Buckingham one
thousand dollars.
A few weeks later, defendant admitted that he agreed to join the dispute on behalf
of Fava and accompanied Lewis and Fava to beat up Buckingham for making his threats.
The attack, however, was thwarted by Buckingham brandishing a gun, striking
defendants car with his own car, and then driving away. Even though defendant observed
Buckingham brandishing a gun at his companions, defendant pursued Buckingham in his
(mother’s) car.
The feud between the parties further escalated thereafter. Defendant stated that
Buckingham called Fava after the car incident. Defendant overheard Buckingham say,
“[Y]ou fucked up, dude, I’m gonna fucking, put a bullet fucking . . . right in your face.”
Fava’s response was “like, well, come do it, dude, you know where I live, come do it.”
The court found that the plan was no “garden variety armed robbery” given the
plan to seriously hurt Buckingham. Moreover, as the evidence showed, the plan even
contemplated death given the nature of the escalating conflict between the parties. The
court noted that the shared and exchanged motives of defendant, Fava and Lewis led up
to the robbery/burglary. This supported that defendant was involved in the planning of
the robbery/burglary. Defendant made clear during his interview that he was also
motivated to back Fava up in his attack on Buckingham in order to recover payment from
Buckingham for the damage to defendant’s mother’s car. When Fava asked defendant if
he wanted to go with Fava and Lewis, defendant stated, “well, fuck, d, ya know,
21 [Buckingham] needs to pay for that bumper, um, so sure I’ll go with you guys or
whatever.”
The second Banks factor also supports the court’s finding that defendant was a
major participant in the crimes. The gun that was used to commit the murder was found
in car that defendant drove. The gun belonged to defendant’s father. Based on the
totality of the circumstances, the trial court reasonably rejected defendant’s claim that he
had been unaware that his father’s gun was in the car. Moreover, the court also
reasonably rejected the testimony of defendant’s father that he had spontaneously placed
his gun, in its case, on the floor board of the sister’s car. Moreover, defendant’s father
did not discover his gun was missing until he checked the case in his safe. Because
defendant knew that he and his cohorts were going to see Buckingham, who usually had a
gun on him, it is more than reasonable for the court to find that defendant took the gun
with him.
The third Banks factor further supports that defendant was a major participant.
Defendant was aware of the particular dangers posed by the nature of the crime, weapons
used, or past experiences or conduct with other participants. As explained in detail ante,
defendant was closely involved with the escalating violent and armed confrontations
between Fava and Buckingham, and assisted in a plan to conduct an armed robbery and
assault of Buckingham, a drug dealer who had already threatened to put a bullet in Fava’s
head. With these facts and circumstances, it was foreseeable that there was a high risk of
violence, or even death. (See In re McDowell (2020) 45 Cal.App.5th 921, 932 [home
invasion robbery of a drug dealer is a crime with a particularly high risk of violence].)
22 As to the final Banks factor, defendant was in a position to either restrain his
cohorts or render aide; defendant did neither. Defendant’s statements to the detective
placed him near the trigger man. Defendant both testified and told the detective that he
left Atencio as he laid on the ground. Although defendant was in a position to intervene,
he neither restrained his cohorts nor rendered aide when the victims were injured.
Based on the foregoing we find that there is substantial evidence to support the
trial court’s finding that defendant was a major participant in the robbery/burglary.
b. Defendant Acted With Reckless Disregard for Human Life
There was also substantial evidence that defendant acted with reckless indifference
to human life. “Although we state these two requirements [major participation in the
felony committed and reckless indifference to human life] separately, they often overlap.
For example, we do not doubt that there are some felonies as to which one could properly
conclude that any major participant necessarily exhibits reckless indifference to the value
of human life. Moreover, even in cases where the fact that the defendant was a major
participant in a felony did not suffice to establish reckless indifference, that fact would
still often provide significant support for such a finding.” (Tison v. Arizona (1987) 481
U.S. 137, 158, fn. 12.)
As explained in detail ante, the evidence of defendant’s major participation was
overwhelming and the evidence amply establishes reckless indifference to human life.
For one, defendant was present when Atencio was murdered. “Presence at the scene of
the murder is a particularly important aspect of the reckless indifference inquiry.”
(People v. Garcia (2020) 46 Cal.App.5th 123, 148.) It is even more so when it is evident
23 that defendant was aware the robbery could be highly volatile; his cohorts were armed
and they knew that Buckingham, a drug dealer, would also be armed, and when
defendant and his cohorts have had escalating interactions with Buckingham.
Moreover, defendant’s actions during the robbery are telling. When the detective
asked what defendant was doing while Buckingham was being attacked by Fava,
defendant responded that he was “trying to look for things of value or whatever, ya
know,” and was “kinda lookin’ in there to see if [Buckingham’s] got any electronics or
anything (inaudible),” and defendant “ya know, I couldn’t really talk to the dude ‘cause
he was getting beat up and . . . .” When the detective asked defendant if he said anything
to Buckingham, defendant responded: “Yeah, I asked him, uh, I asked him, ya know,
where’s your money and your drugs and ya know, something, um, he didn’t answer or
anything. I don’t even know if he’s hearing what I’m saying, ya know, um, and at some
point in time [Lewis] ends up in the room, too, and now they’re both beating
[Buckingham] up . . . so I go back and I’m heading back toward the living room or
whatever, to go wherever [Carr] is to make sure he’s okay or whatever and that’s when
the gunshot just started going off.”
In sum, as noted ante—defendant was a major participant in the crime of
robbery/burglary. Moreover, defendant, while he observed Fava and Lewis beating up
Buckingham, showed no concern for the victim. All defendant wanted to do was to try to
find money or drugs. Thereafter, after he saw that Atencio got shot, he made no effort to
offer the victim any aid. We find that there is substantial evidence to support the trial
court’s finding that defendant acted with reckless disregard for human life.
24 DISPOSITION
The order denying defendant’s section 1170.95 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
RAPHAEL J.