People v. Bivens CA2/7

Filed 12/15/21 P. v. Bivens CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B307083

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A739677)
v.

MARCUS BIVENS,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Yvette Verastegui, Judge. Affirmed.
Alan Siraco, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Amanda V.
Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
 Marcus Bivens, convicted in 1986 of first degree murder,
appeals the denial of his petition for resentencing pursuant to
Penal Code section 1170.951 after the superior court found,
beyond a reasonable doubt, that Bivens could be convicted of
felony murder under amended section 189, subdivision (e)(3), as a
major participant in the underlying robbery who had acted with
reckless indifference to human life. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Bivens’s Felony-murder Conviction
a. The robbery and assault
Bivens, 16 years old at the time of the incident, was one of
three young men who assaulted and robbed Kenneth Williams
sometime after midnight on October 26, 1986. Gretta Varner
testified she had just arrived home from work when she saw the
attack. Initially, the four men, who all appeared to Varner to be
teenagers, were talking near her apartment building. Williams
had some cash in his hand.
As summarized in our opinion affirming Bivens’s conviction
for first degree murder (People v. Bivens (1991) 231 Cal.App.3d
653), after Varner parked and locked her car, she saw the
four young men fighting: “[T]he Black males had beaten the
White man to the ground, where [Bivens] and the other two were
kicking him; the older two males were robbing the victim while
[Bivens] hit and kicked him. Varner crossed the street and yelled
to leave him alone, but they did not stop fighting the victim
(Williams). After the three Black males ran away, Varner
walked over to Williams and saw him bleeding from his mouth

1 Statutory references are to this code unless otherwise
stated.

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and nose; she asked him if he was okay, but Williams never
responded, but just moaned like he was in pain. Varner’s sister
called the police.” (Id. at pp. 656-657.)
Although at one point Varner testified she could not
remember what part of Williams’s body Bivens had kicked, when
pressed, she said it was from the waist down as he lay on the
ground. However, she confirmed Bivens, whom she had
previously seen around the neighborhood, used both his hands
and his feet when assaulting Williams. Bivens continued to
strike and kick Williams while the other two assailants went
through Williams’s pockets and stole his wallet. The three men
then fled.
Williams was transported to a hospital, where he remained
in a coma for the next 16 months. (People v. Bivens, supra,
231 Cal.App.3d at p. 656.)
Bivens’s probation report, admitted into evidence at his
criminal trial, referred to unnamed witnesses, apparently
interviewed by the police, who had described the assault and
robbery and stated “all three suspects were actively participating
in the attack of the victim even though it appears that the
codefendant [Patrick Conner] may have been responsible for
inflicting a greater amount of injury upon the victim.” According
to one of these witnesses, Conner “repeatedly struck the victim in
the head, and forcibly pushed the victim’s head against the
concrete sidewalk.” The probation report also stated Bivens
admitted that he had planned the robbery in advance with Mario
Daniels, one of the other perpetrators.

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 b. The juvenile adjudication
Following Bivens’s arrest, the People filed a three-count
delinquency petition pursuant to Welfare and Institutions Code
section 602 alleging he had committed attempted murder,
aggravated assault and robbery. Bivens admitted the aggravated
assault and robbery allegations; the attempted murder charge
was dismissed. Bivens was declared a ward of the court and
ordered committed to the California Youth Authority for a period
not to exceed five years eight months. (People v. Bivens, supra,
231 Cal.App.3d at p. 657.)
c. Williams’s death and Bivens’s conviction for murder
Williams died on February 20, 1988 after being in a
persistent vegetative state since the attack. The autopsy report
attributed the death to blunt force trauma to the head. (People v.
Bivens, supra, 231 Cal.App.3d at p. 656.)
A new juvenile petition was filed against Bivens, charging
him with Williams’s murder. The juvenile court found Bivens
unfit for juvenile proceedings, and the matter was transferred to
the District Attorney for prosecution. A felony complaint was
filed charging Bivens with murder and robbery. Bivens moved to
dismiss both counts on the ground of former jeopardy. Although
the motion was initially denied, when renewed at the time of
trial, the prosecutor conceded the motion was well taken as to the
charge of robbery. The trial court agreed as to that count.
Bivens waived his right to a jury trial; and the cause was
submitted on the reporter’s transcript of the testimony taken at
Bivens’s and Conner’s preliminary hearings, the police reports
and the record of Bivens’s juvenile court proceedings. The trial
court found Bivens “guilty of the allegation set forth in count 1,
that is, guilty of murder. That it is murder in the first degree

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and murder being committed in the course of a robbery.” Bivens
was sentenced to an indeterminate state prison term of 25 years
to life.
This court affirmed the judgment on appeal, rejecting
Bivens’s argument that, because the acts that had caused
Williams’s death had formed the basis for the juvenile court
adjudications of robbery and aggravated assault, jeopardy
attached when he admitted those offenses, precluding his
subsequent prosecution for murder. (People v. Bivens, supra,
231 Cal.App.3d at pp. 663-664.)
2. Bivens’s Petition for Resentencing
On March 18, 2019 Bivens, representing himself, filed a
petition for resentencing under section 1170.95 and requested the
court appoint counsel to represent him in the resentencing
proceedings. Bivens checked boxes on the printed form petition
establishing his eligibility for resentencing relief, including the
boxes stating he had been convicted under a felony-murder
theory and could not now be convicted of first or second degree
murder because of changes made to sections 188 and 189 by
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437). He repeated the allegations
demonstrating his eligibility for resentencing in a typed
attachment to the petition.2
After Bivens obtained counsel, the People filed a response
to Bivens’s petition, arguing Bivens had failed to make a prima
facie showing he came within the provisions of section 1170.95
because he was the actual killer or aided and abetted the killing;
he would still be convicted of second degree murder under an

2 Bivens’s petition indicated he was no longer in custody.

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implied malice theory; and he would still be convicted as an aider
and abettor to felony murder as a major participant in the
robbery of Williams, who had acted with reckless indifference to
human life. The prosecutor attached as exhibits the victim’s
autopsy report, this court’s opinion affirming Bivens’s murder
conviction, Bivens’s probation report and transcripts of
proceedings at Bivens’s criminal trial, including the preliminary
hearing. Bivens filed a reply.
At a hearing on August 4, 2020 the superior court indicated
its view that Bivens had not made the prima facie showing
required for issuance of an order to show cause, stating it was
unclear whether Bivens, who had acted in concert with the other
two perpetrators, was the actual killer, but he “most definitely”
was a major participant who had acted with reckless disregard
for his victim’s life. Bivens’s counsel asked the court for an
evidentiary hearing, emphasizing there was no evidence Bivens
had delivered the fatal blow by hitting or kicking the victim in
the head.
Notwithstanding its tentative view to deny the petition at
the prima facie stage, noting the law regarding section 1170.95
proceedings was evolving and “in an abundance of caution,” the
court invited the prosecutor to stipulate to holding an evidentiary
hearing. The prosecutor agreed, and the court issued an order to
show cause, which was heard two days later.
At the outset of the evidentiary hearing on August 6, 2020,
the court observed it was now the People’s burden to prove
Bivens’s ineligibility for resentencing. The prosecutor submitted
the exhibits attached to the People’s opposition memorandum as
evidence. Bivens’s counsel stated there were no additional
witnesses or exhibits. The court summarized the facts,

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incorporating its factual description from the prior hearing, and
also pointed out that the fatal blow to Williams’s head could have
been sustained when he fell to the ground as he was being beaten
by his three attackers, “so the court cannot say that he was not
the actual killer.” The court continued, “But, more importantly,
and I think that for these purposes is whether or not the court
finds that he was a major participant, which the court does as it
relates to the robbery, and whether he acted in reckless
indifference, and the court most certainly finds that as it relates
to Mr. Bivens and his conduct in this particular case.” The court
elaborated that Bivens, along with two others, beat the victim to
unconsciousness and left him without rendering aid or assistance
of any form. The court expressly found the People had proved
Bivens’s role as a major participant who acted with reckless
indifference “beyond a reasonable doubt” and denied the petition
for resentencing.3
Bivens filed a timely notice of appeal.

3 Bivens’s argument the superior court, applying an incorrect
legal standard, also denied his petition because he could have
been the actual killer misreads the court’s ruling. Although the
prosecutor argued the evidence of Bivens’s role in the attack
supported a finding he was either the actual killer or directly
aided and abetted the killing and the court indicated the evidence
on that point was unclear, the order denying Bivens’s petition
was based solely on the finding Bivens could be convicted of
felony murder under amended section 189, subdivision (e)(3),
because he was a major participant in the robbery who had acted
with reckless indifference to life.

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 DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as it applies to aiding and
abetting and significantly narrowing the felony-murder exception
to the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e)(3); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis);
see People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).)
It also authorized, through new section 1170.95, an individual
convicted of felony murder or murder based on the natural and
probable consequences doctrine to petition the sentencing court to
vacate the conviction and be resentenced on any remaining
counts if he or she could not have been convicted of murder
because of Senate Bill 1437’s changes to the definition of the
crime. (See Lewis, at p. 957; Gentile, at p. 843.)
If a petition for resentencing contains all the information
required by section 1170.95, subdivision (b)(1)(A), the court must
appoint counsel to represent the petitioner, if requested; direct
the prosecutor to file a response to the petition; permit the
petitioner to file a reply; and determine if the petitioner has made
a prima facie showing he or she is entitled to relief. (§ 1170.95,
subd. (c);4 see Lewis, supra, 11 Cal.5th at pp. 962-963.) In
determining whether the petitioner has carried this burden, the
superior court properly examines the record of conviction,

4 As amended by Senate Bill No. 775 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 551, § 2), effective January 1, 2022, the
requirement to appoint counsel is set forth in new
subdivision (b)(3) of section 1170.95, rather than subdivision (c).

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“allowing the court to distinguish petitions with potential merit
from those that are clearly meritless.” (Lewis, at p. 971.)
Appellate opinions “are generally considered to be part of the
record of conviction.” (Id. at p. 972.)
The prima facie inquiry under section 1170.95,
subdivision (c), “is limited. Like the analogous prima facie
inquiry in habeas corpus proceedings, the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause. . . . However, if the record, including the
court’s own documents, contain[s] facts refuting the allegations
made in the petition, then the court is justified in making a
credibility determination adverse to the petitioner.” (Lewis,
supra, 11 Cal.5th at p. 971, internal quotation marks omitted.)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez (2020) 58 Cal.App.5th 227, 230,
review granted Mar. 10, 2021, S266652; People v. Lopez (2020)
56 Cal.App.5th 936, 949, review granted Feb. 10, 2021, S265974.)
The prosecutor and petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens. (See Gentile, supra, 10 Cal.5th at pp. 853-
854.)

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 We review the superior court’s factual findings following the
evidentiary hearing for substantial evidence. (People v. Clements
(2021) 60 Cal.App.5th 597, 603, review granted Apr. 28, 2021,
S267624; People v. Hernandez (2021) 60 Cal.App.5th 94, 113;
People v. Rodriguez, supra, 56 Cal.App.5th at p. 238, review
granted.)
2. Section 189, Subdivision (e)(3), and the Narrowed
Felony-murder Rule
At the time of Bivens’s trial section 189 permitted a
conviction for felony murder by imputing malice to a participant
in an inherently dangerous felony, including robbery, that
resulted in a homicide. (See People v. Chun (2009) 45 Cal.4th
1172, 1184.) As amended by Senate Bill 1437, section 188,
subdivision (a)(3), now prohibits imputing malice based solely on
an individual’s participation in a crime and requires proof of
malice to convict a principal of murder except under the revised
felony-murder rule as set forth in section 189, subdivision (e),
which requires proof of specific facts relating to the defendant’s
individual culpability: The defendant was the actual killer
(§ 189, subd. (e)(1)); although not the actual killer, the defendant,
with the intent to kill, assisted in the commission of the murder
(§ 189, subd. (e)(2)); or the defendant was a major participant in
an underlying felony listed in section 189, subdivision (a), and
acted with reckless indifference to human life, “as described in
subdivision (d) of Section 190.2,” the felony-murder special-
circumstance provision (§ 189, subd. (e)(3)).
The overlapping factors for assessing whether a defendant
was a major participant in an underlying serious felony and acted
with reckless indifference to human life for purposes of
section 190.2, subdivision (d), and thus for new section 189,

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subdivision (e)(3), were identified by the Supreme Court in People
v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark), and reiterated most recently in In re
Scoggins (2020) 9 Cal.5th 667 (Scoggins). As to whether the
defendant was a major participant in one of the specified felonies,
the Banks Court listed the following factors: “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? 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?” (Banks, at p. 803, fn. omitted.)
As to whether a defendant acted with reckless indifference
to human life, the Supreme Court has enumerated the following
factors: “Did the defendant use or know that a gun would be used
during the felony? How many weapons were ultimately used?
Was the defendant physically present at the crime? Did he or she
have the opportunity to restrain the crime or aid the victim?
What was the duration of the interaction between the
perpetrators of the felony and the victims? What was the
defendant’s knowledge of his or her confederate’s propensity for
violence or likelihood of using lethal force? What efforts did the
defendant make to minimize the risks of violence during the
felony?” (Scoggins, supra, 9 Cal.5th at p. 677; accord, Clark,
supra, 63 Cal.4th at pp. 618-622.) “‘“[N]o one of these
considerations is necessary, nor is any one of them necessarily

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sufficient.”’” (Scoggins, at p. 677; accord, Banks, supra,
61 Cal.4th at p. 803.)
As the Scoggins Court explained, “Reckless indifference to
human life is ‘implicit in knowingly engaging in criminal
activities known to carry a grave risk of death.’” (Scoggins, supra,
9 Cal.5th at p. 676; accord, Banks, supra, 61 Cal.4th at p. 808
[“[a]wareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient”; reckless
indifference to human life requires “knowingly creating a ‘grave
risk of death’”].) “Reckless indifference ‘encompasses a
willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire that
death as the outcome of his actions.’” (Scoggins, at pp. 676- 677,
quoting Clark, supra, 63 Cal.4th at p. 617.)
3. Substantial Evidence Supports the Trial Court’s Finding
That Bivens Is Ineligible for Resentencing Relief Under
Section 1170.95
There can be no question substantial evidence supports the
superior court’s finding that Bivens was a major participant in
the robbery of Williams. Bivens admitted he planned the robbery
and discussed it in advance with one of his confederates. Bivens
joined with the other two perpetrators as they viciously attacked
Williams with their fists and feet, and Bivens continued to kick
Williams as he lay on the ground while the other two men stole
Williams’s property. Bivens then fled with his associates without
rendering any assistance to his unconscious victim. Bivens
effectively concedes as much, acknowledging in his reply brief he
“may have been a major participant” who applied force or fear to
facilitate the robbery.

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 Although the proof Bivens acted with reckless indifference
to human life during the robbery was not as overwhelming, that
finding, too, is supported by substantial evidence. (See People v.
Dalton (2019) 7 Cal.5th 166, 244 [When considering a challenge
to the sufficiency of the evidence to support a conviction, the
reviewing court determines “‘“whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” [Citation.] In so doing, a reviewing
court “presumes in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence”’”];
see also Clark, supra, 63 Cal.4th at p. 626 [“‘[w]here the
circumstances reasonably justify the trier of fact’s findings, a
reviewing court’s conclusion the circumstances might also
reasonably be reconciled with a contrary finding does not warrant
the judgment’s reversal’”].)
Bivens was not only physically present at the scene of the
robbery but also actively participated in the violent manner in
which the offense was committed, assisting in knocking Williams
to the ground and continuing to repeatedly kick him as his
confederates stole Williams’s property. Bivens, along with the
two others, ignored Varner’s cries to stop the beating and did
nothing to try to minimize the risk of harm to Williams. Bivens
then fled with the other two men without making any attempt to
aid Williams.
Bivens’s argument that stopping to render aid to Williams
would not have made any difference—Varner called for
emergency assistance as quickly as he could have, he asserts—
misses the point. Providing help to the injured victim, whether
or not ultimately effective, reflects on the defendant’s state of

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mind: Was he concerned about, or indifferent to, the risk of death
created by the violence in which he participated? The answer as
to Bivens is clear.
To be sure, there were valid countervailing considerations
to a finding of reckless indifference. No guns or other weapons
were used, and there was no evidence Bivens’s planning
contemplated the use of more force than necessary to accomplish
the robbery or that he had previously engaged in criminal
activities with his two confederates and knew either of them was
likely to engage in acts of extreme violence. In addition, Bivens
was only 16 years old at the time of the robbery, which arguably
limited his ability to minimize the violent nature of the assault
by his older partners (although there was no evidence he tried to
do so). Moreover, Bivens’s age itself is a relevant factor in
determining whether he acted with reckless indifference because
youths “generally are less mature and responsible than adults”
and “often lack the experience, perspective, and judgment” to
adequately appreciate the risk of death posed by their criminal
activities. (In re Moore (2021) 68 Cal.App.5th 434, 453, internal
quotation marks omitted; accord, People v. Harris (2021)
60 Cal.App.5th 939, 960, review granted Apr. 28, 2021,
S267802.)
Nevertheless, although we might have balanced the
competing factors differently, it is the superior court that must
be persuaded beyond a reasonable doubt the petitioner can still
be convicted of murder after Senate Bill 1437’s amendments to
section 188 and 189. The evidence in the record reasonably
justified the superior court’s conclusion. That it also would have
supported a finding that Bivens did not act with reckless
indifference to Williams’s life does not warrant reversal of the

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order denying his petition for resentencing. (See People v.
Clements, supra, 60 Cal.App.5th at p. 603, review granted; People
v. Rodriguez, supra, 56 Cal.App.5th at p. 238, review granted;
see also People v. Zamudio (2008) 43 Cal.4th 327, 357-358.)
DISPOSITION
The postjudgment order denying Bivens’s petition for
resentencing under section 1170.95 is affirmed.

PERLUSS, P. J.
We concur:

SEGAL, J.

FEUER, J.

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