People v. Bloxton CA2/2

Filed 7/29/21 P. v. Bloxton CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO

THE PEOPLE, B307556

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA018339)
v.

DANTE LAVELL BLOXTON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Gary J. Ferrari, Judge. Affirmed.

Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
 Matthew Rodriguez, Acting Attorney General, Rob Bonta,
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General,
Wyatt Bloomfield and Nicholas J. Webster, Deputy Attorneys
General, for Plaintiff and Respondent.
******
Dante Lavell Bloxton (defendant) appeals the trial court’s
denial of his petition for relief under Penal Code section 1170.95.1
We conclude there was no error and affirm the order.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crime
On a Sunday night in August 1998, defendant, Efren
Bullard (Bullard) and others approached two men who were
using a gas station pay phone in Long Beach, California.
Defendant and Bullard had firearms. With guns drawn,
defendant and his companions demanded that the men hand over
their valuables. Defendant and his group soon realized that the
two men had driven separate cars—namely, a Bronco and a
Camaro. From the Bronco, the group pulled out one man’s wife
by her hair and demanded her jewelry and money; they then
proceeded to ransack the Bronco. After a third man got out of the
Camaro, defendant and his group lined up all four victims by the
Bronco and demanded that they turn out their pockets. One

1 All further statutory references are to the Penal Code
unless otherwise indicated.

2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction. (People v. Bloxton (July
23, 1998, B113892).)

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member of the group commented that he was “going to kill all of
the victims because they were Mexican.” When the robbers went
to ransack the Camaro, they discovered David Hoppes (Hoppes)
inside the car. Defendant and Bullard pulled Hoppes from the
Camaro and started to beat him and to go through his pockets.
When Bullard announced that he was going to kill Hoppes
because he “was White,” defendant responded, “I don’t care.”
Moments later, Bullard shot Hoppes in the leg and, after Hoppes
collapsed and started to crawl away, defendant and Bullard
walked up to him in tandem. While defendant and Bullard stood
over Hoppes, Bullard shot him repeatedly. The multiple gunshot
wounds were fatal. The robbers then ran off.
B. Prosecution, conviction and appeal
The People charged defendant with (1) the murder of
Hoppes (§ 187, subd. (a)), and (2) five counts of second degree
robbery (§ 211). As to the murder, the People alleged a special
circumstance—namely, that it was committed in the course of a
robbery (§ 190.2, subd. (a)(17)(A)), which could be found true only
if defendant was a major participant in the robbery and acted
with reckless indifference to human life. (Id., subd. (d).) The
People further alleged that defendant and Bullard “personally
use[d] a firearm” (§ 12022.5, subd. (a)), and that a principal was
“armed with a firearm” (§ 12022, subd. (a)(1)).
A jury convicted defendant of murder and four counts of
second degree robbery, and found true all of the allegations.
The trial court sentenced defendant to prison for life
without the possibility of parole (LWOP) plus 15 years.
Specifically, the court sentenced defendant to LWOP plus five
years (for the firearm enhancement) on the murder count, and a
consecutive 10 years for one of the second degree robbery counts

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(comprised of base sentence of five years plus five years for the
firearm enhancement). The court stayed or concurrently ran the
remaining sentences.
Defendant appealed his conviction and we affirmed in an
unpublished opinion.
II. Procedural Background
On December 24, 2018, defendant filed a petition seeking
resentencing for the murder conviction under section 1170.95.3
The court appointed counsel for defendant, and ordered the
parties to submit further briefing. Following a hearing, the trial
court “summarily denied” defendant’s petition. The court found
that defendant had not “establish[ed] a prima facie case for relief”
under section 1170.95 because one of the elements of that prima
facie case—namely, that defendant could not be convicted of first
degree murder under the amended murder statute—was
foreclosed by “the jury[’s finding] beyond a reasonable doubt [that
defendant] was a major participant in the underlying felony
[who] acted with reckless indifference to human life.”
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in denying his
section 1170.95 petition (and thereby violated due process)
because the jury’s prior special circumstance finding does not

3 The petition for section 1170.95 relief was included within
a petition for a writ of habeas corpus that sought to vacate his
murder conviction under People v. Chiu (2014) 59 Cal.4th 155.
Defendant filed a second petition for a writ of habeas corpus on
January 28, 2020, seeking a hearing to preserve evidence for a
future juvenile offender parole hearing under People v. Franklin
(2016) 63 Cal.4th 261. Neither petition is before us in this
appeal.

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preclude him from making his prima facie case under section
1170.95. Because this argument turns on questions of statutory
construction and the application of law to undisputed facts, our
review is de novo. (People v. Blackburn (2015) 61 Cal.4th 1113,
1123; Martinez v. Brownco Construction Co. (2013) 56 Cal.4th
1014, 1018.)
I. Effect of Jury’s Special Circumstance Finding
Section 1170.95 authorizes a defendant “convicted of felony
murder or murder under a natural and probable consequences
theory” to vacate his murder conviction if, as a threshold matter,
he makes a “prima facie showing” of entitlement to relief.
(§ 1170.95, subds. (a) & (c).) This, in turn, requires a showing
that, among other things, he “could not be convicted of first or
second degree murder” under the amendments to the murder
statutes that became effective on January 1, 2019. (Id., subd.
(a)(3).) These statutes, even as amended, still authorize a
murder conviction based on a theory of vicarious liability if the
defendant “was a major participant in the underlying felony and
acted with reckless indifference to human life . . . .” (§ 189, subd.
(e)(3).)
Applying these statutes, the trial court properly concluded
that defendant had not made a prima facie showing of his
entitlement to relief under section 1170.95. That is because the
jury in his case, by virtue of finding the special circumstance
allegation to be true, necessarily found that defendant was a
major participant in the underlying felony and acted with
reckless indifference to human life. As we held in People v.
Nunez (2020) 57 Cal.App.5th 78, 93-97 (Nunez), review granted
January 13, 2021, S265918, this prior finding renders defendant
not eligible for relief under section 1170.95 as a matter of law.

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(Accord, People v. Simmons (2021) 65 Cal.App.5th 739, 746-750;
People v. Jones (2020) 56 Cal.App.5th 474, 482, review granted
Jan. 27, 2021, S265854; People v. Allison (2020) 55 Cal.App.5th
449, 457; People v. Gomez (2020) 52 Cal.App.5th 1, 14-17, review
granted Oct. 14, 2020, S264033; People v. Galvan (2020) 52
Cal.App.5th 1134, 1141-1143, review granted Oct. 14, 2020,
S264284; but see People v. Arias (July 22, 2021) __Cal.App.5th__
[2021 Cal.App.Lexis 597], *25-*26; People v. Pineda (July 19,
2021) __Cal.App.5th__ [2021 Cal.App.Lexis 586], *1-*2; People v.
Gonzalez (2021) 65 Cal.App.5th 420, 425; People v. Torres (2020)
46 Cal.App.5th 1168, 1179-1180, review granted June 24, 2020,
S262011; People v. Smith (2020) 49 Cal.App.5th 85, 93-94, review
granted July 22, 2020, S262835; People v. York (2020) 54
Cal.App.5th 250, 258-263, review granted Nov. 18, 2020,
S264954; People v. Harris (2021) 60 Cal.App.5th 939, 956-958,
review granted Apr. 28, 2021, S267802; People v. Secrease (2021)
63 Cal.App.5th 231, 236, 247 (Secrease).)
Defendant responds that Nunez is wrongly decided
because, as the cases disagreeing with Nunez have explained, the
jury’s prior special circumstance (1) has been rendered
meaningless by two Supreme Court decisions—People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63
Cal.4th 522 (Clark)—that came out after the jury’s verdict in this
case, and which altered the manner in which appellate courts are
to review this particular special circumstance for substantial
evidence, and (2) “relates [in any event] only to punishment” and
thus cannot “stand in the way of eligibility” vis-à-vis defendant’s
underlying conviction. Neither argument undermines Nunez,
which rests on the rationale that the jury’s prior special
circumstance finding remains valid—and thus remains a basis

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for summarily denying relief under section 1170.95—unless and
until the defendant successfully overturns that finding in a
habeas petition. (Nunez, supra, 57 Cal.App.5th at pp. 93-97.)
Because defendant has not yet done so, the jury’s prior special
circumstance finding precludes relief under section 1170.95 as a
matter of law.
II. Continued Validity of the Jury’s Special Verdict
Finding
Even if we were to hedge our bets and not follow Nunez in
light of the deep split of authority on the question pending before
our Supreme Court, our task would be to undertake for ourselves
the task that Nunez entrusts to a trial court considering a
subsequent habeas corpus petition—that is, evaluating whether
the jury’s special circumstance finding is supported by
substantial evidence through the prism of Banks and Clark.
(Secrease, supra, 63 Cal.App.5th at p. 255 [so holding].)
Defendant disagrees, arguing that the very need for Banks and
Clark review renders the prior special circumstance finding a
nullity—and outside the scope of the law of the case and
collateral estoppel doctrines—because the issue decided by the
jury (which did not account for Banks and Clark) is not the same
as the issue before us now (which does account for Banks and
Clark). We are not persuaded, because a ruling by this court that
the special circumstance finding is valid under Banks and Clark
validates the prior special circumstance finding. Thus, we turn
to evaluating whether substantial evidence supports the prior
special circumstance finding. That evaluation leads to the
conclusion that the jury’s finding must stand, and that relief
under section 1170.95 is accordingly unavailable to defendant as
a matter of law. Because the finding that renders defendant

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ineligible for relief—like the special circumstance itself—requires
proof beyond a reasonable doubt that defendant (1) “was a major
participant in the underlying felony” and (2) “acted with reckless
indifference to human life,” we separately evaluate the continued
viability of each element through the Banks and Clark prism.
A. Major participant
Under Banks and Clark, a “major participant” in a robbery
is someone whose “personal involvement” is “substantial”; such a
participant “need not be the ringleader,” but his involvement
must be “greater than the actions of an ordinary aider and
abettor.” (Banks, supra, 61 Cal.4th at pp. 801-802; People v.
Williams (2015) 61 Cal.4th 1244, 1281.) Courts are to examine
the totality of the circumstances when evaluating the extent of
participation, including several factors our Supreme Court
identified in Banks as relevant but not dispositive on the issue:
(1) the defendant/aider and abettor’s role in planning the robbery;
(2) his role in supplying or using lethal weapons; (3) his
awareness of the “particular dangers posed by the nature of the
crime, the weapons used, or past experience or conduct of the
other participants”; (4) his presence at the scene of the killing
and thus whether he was “in a position to facilitate or prevent the
actual murder”; and (5) his actions after the use of lethal force.
(Banks, at p. 803; Clark, at p. 611.)
Substantial evidence supports the finding that defendant
was a major participant even when applying the heightened
standard set forth in Banks and Clark. Although the facts do not
disclose defendant’s role in planning the robbery or in supplying
the two guns used during the robbery, the jury found that he was
one of only two members of a larger group who was “armed with”
and “personally used” a firearm, and he used that firearm to

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order the victims to hand over their valuables. Although the
evidence does not disclose whether defendant had witnessed his
cohorts engaging in violence on prior occasions, defendant did see
them—on this occasion—toting guns, pulling one victim out of
the car by her hair and beating up another. Defendant was also
present at the scene the whole time, including when his cohorts
threatened to kill four of the robbery victims because they “were
Mexican” and Hoppes because he “was White,” and thus was “in a
position to facilitate or prevent the actual murder.” Indeed,
defendant responded to Bullard’s announcement of his intent to
kill Hoppes—not by saying, “Don’t”—but instead by saying, “I
don’t care.” And after Bullard shot Hoppes once in the leg,
defendant did not take any action or say anything to discourage
Bullard from making good on his threat to kill the “White” guy;
instead, he walked with Bullard up to Hoppes so that Bullard
could shoot Hoppes to death. In sum, defendant played an
integral role in the robbery of the four victims, one that was more
extensive than most of the other robbers.
B. Reckless indifference to human life
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
p. 801, quoting People v. Estrada (1995) 11 Cal.4th 568, 577,
quoting Tison v. Arizona (1987) 481 U.S. 137, 157.) 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

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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
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.)

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 Substantial evidence supports the finding that defendant
acted with reckless indifference to human life even when
applying the heightened standard set forth in Banks and Clark.
Although defendant’s awareness that Bullard 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 that guns would be used, but he and Bullard each
had their own gun, at least one of those guns was loaded, and
defendant and Bullard induced the victims to part with their
valuables by displaying those guns. As noted above, defendant
was physically present the entire time, and thus had ample time
to restrain Bullard from shooting Hoppes or to aid Hoppes.
Defendant did none of those things. Indeed, when Bullard
announced his intention to kill Hoppes merely because of his
race, defendant’s response was the epitome of reckless
indifference—he said, “I don’t care.” The interaction between
defendant’s group and the victims lasted several minutes, as the
robbers shook down the two men at the pay phone, dragged the
woman out of the Bronco, corralled all of the victims, and then
found, beat and shot Hoppes. Although, as noted above, there
was no evidence that defendant was aware of Bullard’s or his
other cohort’s propensity for violence based on prior incidents,
defendant certainly witnessed it over the course of the robbery in
this case. And defendant made absolutely no effort to minimize
the risk of violence during the robbery.

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 DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

_________________________, J.
ASHMANN-GERST

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