People v. Rivera CA4/2

Filed 11/8/21 P. v. Rivera CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E075838

v. (Super.Ct.No. FVI800549)

CHRISTOPHER SHANE RIVERA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Debra Harris,

Judge. Affirmed.

Spolin Law and Aaron Spolin 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.

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 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 Code 1 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.

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 “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.

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 “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.

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 “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

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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.

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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.

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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

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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.”

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 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

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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,

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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.”

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 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,

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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

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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.)

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 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?

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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.)

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 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

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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,

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[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].)

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 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

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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 coulnd’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.

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 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.

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