Filed 5/21/21 P. v. Ross CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B305309
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A820702)
v.
TERRILL ROSS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Richard H. Kirschner, Judge. Affirmed.
Mark Alan Hart, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles Lee and Colleen M. Tiedemann,
Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Terrill Ross (defendant) filed a petition seeking to vacate
his murder conviction under Penal Code section 1170.95.1 The
trial court denied the petition after an evidentiary hearing. We
affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Underlying crime2
In April 1988, defendant and Devin Feagin (Feagin)
conducted an armed home-invasion burglary and robbery that
ended with Feagin shooting and killing one of the home’s two
occupants.
At that time, defendant was 17 years old; Feagin, “a few
years older.” They were friends. The day before the crime,
Feagin’s distinctive looking Cadillac slowly drove by the victims’
home.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 These facts are drawn from our prior opinion affirming
defendant’s conviction on direct appeal (People v. Feagin (1995)
34 Cal.App.4th 1427 (Feagin)) as well as from the record of
conviction as recounted by counsel during the evidentiary hearing
where not disputed by opposing counsel.
2
The day of the crime, defendant and Feagin each armed
themselves with a loaded gun. They approached the house and
knocked on the door before “crash[ing] through the bedroom door”
and yelling, “this is a robbery and we have cocked guns.”
They first encountered a woman in the kitchen. When the
woman picked up a nearby phone to call 911, defendant pointed
his gun at her and ordered her to “hang up the phone and get on
the floor.”
While defendant held the woman at gunpoint, Feagin went
down the hall to a bedroom where he came upon the woman’s
husband. When the husband reached for a gun, Feagin shot him.
As the husband lay dying, Feagin ransacked the bedroom, taking
a .22 pistol, the couple’s passports, and a Seiko watch.
When Feagin returned to the kitchen area, he said, “Let’s
get the hell out of here.” Defendant did not express surprise or
horror at what Feagin had done. Instead, he asked, “Do you have
any money?” When Feagin lied by answering, “Lots,” the two
men fled the home, leaving the woman alone with her dying
husband.
B. Charges, sentence and appeal
In the operative complaint, the People charged defendant
and Feagin with (1) murder (§ 187, subd. (a)), (2) first degree
residential robbery (§ 211), (3) residential burglary (§ 459), and
(4) assault with a firearm (§ 245, subd. (a)(2)). As to all charges,
the People further alleged that both defendant and Feagin had
personally used a firearm (§ 12022.5).
The matter proceeded to a jury trial. With respect to the
murder charge, the trial court instructed the jury on the theories
of (1) direct aiding and abetting, and (2) felony murder. The jury
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convicted defendant of all charges and found the personal use of a
firearm allegation to be true for all charges.
The trial court sentenced defendant to state prison for 27
years to life. Specifically, the court imposed a sentence of 27
years to life on the murder count, comprised of a base sentence of
25 years to life plus two years for the firearm enhancement. The
court imposed but stayed four-year prison sentences on the
robbery and burglary counts. And the court imposed a
concurrent three-year prison term on the assault count and
stayed the firearm enhancement on that count.
We affirmed defendant’s convictions and sentence on
appeal. (Feagin, supra, 34 Cal.App.4th at p. 1440.)
II. Procedural Background
On January 2, 2019, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that he had been
charged with murder, that he was convicted “pursuant to the
felony murder rule or the natural and probable consequences
doctrine,” and that his murder conviction would be invalid under
the “changes made to Penal Code §§ 188 and 189, effective
January 1, 2019.”
After the trial court appointed counsel for defendant and
entertained two rounds of briefing, the court found that
defendant had alleged a prima facie case for relief and set the
matter for an evidentiary hearing.
The court held an evidentiary hearing in late February
2020. The parties relied solely on the record of conviction.
Following argument by counsel and defendant’s concession that
he was a “major participant” in the underlying robbery-burglary,
the trial court found beyond a reasonable doubt that defendant
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had “acted with reckless indifference to human life” and thus was
ineligible for relief under section 1170.95. In making this
finding, the court enumerated and then analyzed the factors
relevant to whether a defendant acts with reckless indifference to
human life set forth in People v. Banks (2015) 61 Cal.4th 788
(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
Specifically, the court found that (1) defendant was aware that
both he and Feagin would be “armed during the entire robbery
and burglary,” which aggravated the risk because “[t]he more
guns, the greater the chance of gunfire”; (2) defendant was “at the
robbery-burglary scene from start to finish,” and elected not to
restrain Feagin or help the victims despite having the
“opportunity” to do so; (3) defendant “knew that the victims were
at home and that this was going to be a violent home invasion
robbery,” but “took no steps” “to limit the duration and extent of
the interaction with the [victims] so as to minimize the risk” of
harm to them; (4) defendant had no “reason to trust that . . .
Feagin was going to be peaceful” because he knew both of them
were armed; and (5) defendant made no “efforts to minimize the
risk of violence during the course of this armed robbery and
burglary.”
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in denying his
petition for relief under section 1170.95.
In 2018, our Legislature changed the law to eliminate
liability for murder resting on a theory of felony-murder (that is,
on a theory that the defendant is liable for murder if he
participates in an underlying felony and one of his coparticipants
kills someone) except upon a showing that the person “was a
5
major participant in the underlying felony and acted with
reckless indifference to human life.” (§ 189, subd. (e)(3), added by
Stats. 2018, ch. 1015, § 3.) Section 1170.95 is the procedural
vehicle by which defendants previously convicted of murder on a
felony-murder theory can seek to vacate their murder conviction
and be resentenced solely on the underlying felony. (§ 1170.95,
subds. (a) & (d).) Where, as here, a defendant has made out a
“prima facie showing” that he was entitled to relief because his
murder conviction may have rested on a felony-murder theory,
the trial court must hold a “hearing to determine whether [the
defendant] is entitled to relief.” (Id., subd. (d)(3).) At that
hearing, the prosecution bears “the burden . . . to prove, beyond a
reasonable doubt, that the [defendant] is ineligible for
resentencing.” (Ibid.) Although the courts are split over whether
the prosecution carries its burden by proving that no reasonable
jury could find the defendant guilty of murder because he is a
major participant acting with reckless indifference to human life
(People v. Duke (2020) 55 Cal.App.5th 113, 123, review granted
Jan. 13, 2020, S265309) or by convincing the trial court hearing
the section 1170.95 petition that the defendant was a major
participant acting with reckless indifference to human life (People
v. Rodriguez (2020) 58 Cal.App.5th 227, 241-242, review granted
Mar. 10, 2020, S266652; People v. Lopez (2020) 56 Cal.App.5th
936, 942, review granted Feb. 10, 2021, S265974; People v.
Clements (2021) 60 Cal.App.5th 597, 617-618, review granted
Apr. 28, 2021, S267624 (Clements); People v. Harris (2021) 60
Cal.App.5th 939, 952-953, review granted Apr. 28, 2021,
S267802; People v. Duchine (2021) 60 Cal.App.5th 798, 813-814),
we need not take a position because the trial court in this case
held the prosecution to the latter, more defendant-friendly
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burden of proof by making its own finding beyond a reasonable
doubt that defendant was a major participant acting with
reckless indifference to human life. Because the defendant
concedes that he was a major participant in the underlying
felonies of robbery and burglary, the sole question before is
whether substantial evidence supports the trial court’s finding
that he acted with reckless indifference to human life. (Clements,
at p. 618; People v. Bascomb (2020) 55 Cal.App.5th 1077, 1084,
1087 (Bascomb).)
A defendant acts with reckless indifference to human life
when he “‘“knowingly engag[es] in criminal activities known to
carry a grave risk of death.”’” (Banks, supra, 61 Cal.4th at
pp. 800-801, quoting People v. Estrada (1995) 11 Cal.4th 568,
577, quoting Tison v. Arizona (1987) 481 U.S. 137, 157-158.) This
standard “has a subjective and an objective” component. (In re
Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).) To satisfy the
subjective component, ‘“[t]he defendant must be aware of and
willingly involved in the violent manner in which the [underlying
felony] is committed,’ and . . . must consciously disregard ‘the
significant risk of death his or her actions create.’” (Scoggins, at
p. 677, quoting Banks, at p. 801.) The key is whether the
defendant evinces “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 actions.”
(Clark, supra, 63 Cal.4th at p. 617.) To satisfy the objective
component, the risk of death “‘“must be of such a nature and
degree that, considering the nature and purpose of the
[defendant’s] conduct and the circumstances known to him[], its
disregard involves a gross deviation from the standard of conduct
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that a law-abiding person would observe in the [defendant’s]
situation.”’” (Scoggins, at p. 677, quoting Clark, at p. 617.)
Our Supreme Court has identified a number of
considerations bearing on whether a defendant has acted with
reckless indifference to human life. “No one of these
considerations is necessary, nor is any one of them necessarily
sufficient” (Banks, supra, 61 Cal.4th at p. 803); what matters is
the totality of the considerations (Scoggins, supra, 9 Cal.5th at
p. 677). The considerations are: (1) “Did the defendant use or
know that a gun would be used during the [underlying] felony,”
and, relatedly, “[h]ow many weapons were ultimately used?”; (2)
“Was the defendant physically present at the crime,” such that he
had “the opportunity to restrain the crime or aid the victim?”;
(3) “What was the duration of the interaction between the
perpetrators of the [underlying] felony and the victims?”;
(4) “What was the defendant’s knowledge of his . . . confederate’s
propensity for violence or likelihood of using lethal force?”; and
(5) “What efforts did the defendant make to minimize the risks of
violence during the felony?” (Id., citing Clark, supra, 63 Cal.4th
at pp. 618-623.)
Using these considerations as a guide, substantial evidence
supports the trial court’s finding that defendant acted with
reckless indifference to human life. Although defendant’s
awareness that Feagin was “armed” or that a gun would be used
is not enough, “without more,” to establish an awareness of a
grave risk of death (Banks, supra, 61 Cal.4th at p. 809, fn. 8),
here there was much more: Defendant not only knew a gun
would be used, but he and Feagin each had their own gun, those
guns were loaded, and defendant and Feagin—immediately upon
crashing into the home—expressed their readiness and
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willingness to use those loaded guns by shouting “we have cocked
guns.” Defendant was physically present in the home the entire
time. Although he was not inside the bedroom at the moment
Feagin shot the husband, defendant was just down the hall. He
could have restrained Feagin by yelling down the hall at him or
by accompanying him (with the woman in tow), and could have
aided the victims by setting the woman free, by allowing her to
call 911 when Feagin was down the hall, or by going to check on
the husband after he heard gunfire. Defendant did none of those
things. Indeed, he expressly no surprise or anger or concern for
Feagin’s victim when Feagin returned from the bedroom; instead,
he asked Feagin what “money” he had managed to grab.
Defendant pointed the barrel of his gun at the woman for several
minutes while Feagin shot her husband and ransacked their
bedroom. Feagin had once before threatened to kill someone, and
defendant had been friends with Feagin long enough that he may
well have known about that threat. And defendant made
absolutely no effort to minimize the risk of violence during the
underlying felonies of robbery and burglary.
This case is remarkably similar to Bascomb, supra, 55
Cal.App.5th 1077. There, the defendant and a cohort armed
themselves, “pushed their way into [a] home,” and the defendant
ordered one of the residents to the ground at gunpoint while the
other went into a bedroom and shot someone. (Id. at pp. 1081,
1089-1090.) Bascomb held that the defendant acted with reckless
indifference to human life. (Id. at p. 1089.)
Defendant responds with three categories of arguments.
First, he argues that we should independently examine the
record and decide for ourselves whether we would find, beyond a
reasonable doubt, that defendant acted with reckless indifference
9
to human life. He asserts that the trial court’s finding is entitled
to no deference because that court’s finding was based solely on
the “cold record.” Thus far, appellate courts have uniformly
applied substantial evidence review to the trial court’s section
1170.95 findings after an evidentiary hearing. (See Clements,
supra, 60 Cal.App.5th at p. 618; Bascomb, supra, 55 Cal.App.5th
at pp. 1084, 1087.) We need not decide whether we would break
with this precedent because, on the record before us, we would
independently come to the same conclusion as the trial court.
Second, defendant argues that several considerations
compel a finding (should we review the trial court’s finding for
substantial evidence) or warrant a finding (should we
independently make our own finding) that he did not act with
reckless indifference to human life. He contends that the trial
court was wrong to infer his reckless indifference from the use of
guns in the robbery, and reminds us that “the risk of death
inherent in an armed robbery” does not amount to reckless
indifference to human life. (Banks, supra, 61 Cal.4th at pp. 808-
809.) But this case involved more than a cohort bringing a gun to
an armed robbery; here, defendant himself was armed with a
loaded gun, proclaimed a willingness to fire it, and then used it to
restrain one victim while Feagin killed the other. Next,
defendant asserts that there was no evidence he was personally
involved in planning the heist. Although there is “significant[]
overlap” between the major participant and reckless indifference
elements (Clark, supra, 63 Cal.4th at pp. 614-615), a defendant’s
involvement in planning the underlying felony is more relevant
to whether the defendant was a major participant than whether
he acted with reckless indifference (Banks, at p. 803) and
defendant concedes he was a major participant. The coordinated
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fashion in which defendant and Feagin entered the home and
split up to control the victims also implies that this was not a
spontaneous, unplanned raid. Further, defendant posits that he
had no opportunity to restrain Feagin because (1) defendant was
17 and Feagin was “a few years” older, and (2) he was not in the
bedroom with Feagin when Feagin shot the husband. But the
inference defendant asks us to draw between the minimal age
difference and his lack of influence over Feagin is based on
nothing but speculation, and defendant’s presence in the home
enabled him to communicate with—and thereby restrain—Feagin
at all times and yet he chose not to do. Lastly, defendant urges
that Feagin’s shooting was the product of the husband’s conduct
in reaching for the gun to defend himself and hence was
“unexpected,” but the notion that a homeowner might take
actions to protect himself from armed assailants is not
unexpected, and the reckless indifference standard does not
require a showing that a defendant “desire[s]” the shooting
(Clark, at p. 617). Defendant nevertheless created and then
recklessly disregarded the risk of such a confrontation by
storming with Feagin into the home with loaded guns and
threatening to fire them.
Third, defendant argues that precedent is on his side. It is
not. He analogizes the facts of this case to Scoggins, but the
analogy does not hold. In that case, Scoggins planned an
“unarmed assault and robbery” as “revenge” for being defrauded
out of money. (Scoggins, supra, 9 Cal.5th at p. 671.) Scoggins did
not accompany his recruits because he was afraid the victim
might recognize him. (Ibid.) However, one of the recruiters
brought along a gun and opened fire on the victim. (Id. at p. 672.)
After hearing the shots, Scoggins went to the scene and stayed
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with the victim until the police arrived. (Ibid.) On these facts,
our Supreme Court found that Scoggins had not acted with a
reckless indifference to human life. (Id. at pp. 677-683.) This
case is completely different because defendant knew guns would
be used, brought along a loaded gun himself, threatened to fire it,
personally used it to restrain one victim while Feagin robbed and
shot the other, expressed no hesitancy or surprise at the shooting,
and fled once he was assured Feagin had secured some loot.
Defendant acknowledges that this case is nearly identical to
Bascomb, but argues that Bascomb was wrongly decided. We
find nothing wrong with Bascomb.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________, J.
HOFFSTADT
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
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