People v. Bayliss CA4/2

Filed 4/11/22 P. v. Bayliss 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E075770

v. (Super.Ct.No. FSB17394)

MARLON DESHON BAYLISS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,

Judge. Affirmed.

Shelia O’Connor, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Lynne G.

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McGinnis and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and

Respondent.

In 2000, defendant Marlon Bayliss and his half-brother Eddie Hampton were

convicted of murder, committed after the two planned to “jack” a bar, armed with

firearms provided by defendant, resulting in the shooting death of the business owner by

a shotgun blast from Hampton’s firearm. Defendant Bayliss was sentenced to a term of

51 years to life and his conviction and sentence were affirmed on direct appeal. In 2019,

following passage of Senate Bill No. 1437, defendant Bayliss filed a petition for

resentencing pursuant to Penal Code1 section 1170.95. The trial court found there was a

prima facie basis for relief and conducted an evidentiary hearing. However, after that

hearing, the trial court denied the petition after it determined Bayliss was a major

participant and that he acted with reckless disregard for human life. Defendant appeals.

On appeal, defendant argues the trial court applied the wrong standard of proof in

evaluating the merits of the petition, and that the evidence on which the court based its

decision (the record of conviction in addition to a new fact stipulated by the parties) does

not support a conclusion Bayliss was not entitled to resentencing. We affirm.

BACKGROUND

We recite the background facts as set forth in our unpublished opinion in case No.

E023847, People v. Marlon Bayliss et al., filed on June 14, 2000, with added information

regarding the current petition:

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

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 Sheryl Hilt was Bayliss’s girlfriend. As of November 22, 1996, they had lived

together for six or seven months. On the evening of November 22, 1996, she, Bayliss,

Hampton, Bayliss’s brother Tommy, and Mark Burley were together at Hilt’s and

Bayliss’s house. Sometime during the afternoon or evening, Burley left.

At 10:00 or 11:00 p.m., Hilt overheard a conversation between Bayliss and

Hampton; Tommy Bayliss was present with them, but Tommy did not appear to be taking

part in the discussion. Bayliss and Hampton were talking about doing a “jack move”

(robbery). They talked about using Hampton’s car and robbing a bar.

At 2:00 or 3:00 a.m., on November 23, Hampton and Bayliss left the house

together. Hampton carried a shotgun wrapped in a sheet. Hilt thought they left in

Hampton’s car, because Tommy’s gray car was still parked outside the house.

Bayliss returned to the house at 4:00 or 5:00 a.m. As he got into bed, he told Hilt

that “something went wrong.”

As of November 23, 1996, David Reno was staying at a house on Ninth Street in

San Bernardino. At approximately 3:00 a.m. on that date, he was outside smoking a

cigarette. He saw a dark-colored car come east on Ninth Street, turn around in a dirt field

on the south side of the street and return west on Ninth Street, and then turn south at the

next intersection, onto Sterling Avenue. He saw the same car repeat the same maneuver

two or three times. After one of the passes, the dark car turned in at an apartment

building on Ninth Street.

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 Soon, Reno saw two Black men walk by. One man looked taller than the other,

and the shorter man seemed huskier to Reno. The two men wore dark clothing and

jackets, and they wore knit caps or beanies on their heads. One of the men carried a

shotgun. The men appeared to cross a field on a path that led from Ninth Street to

Sterling Avenue. A liquor store was two buildings south of the field on Sterling Avenue.

After five or ten minutes, Reno heard gunshots. The gunshots sounded as if they

came from the liquor store. The same two Black men came running past Reno. Again,

one of the men carried the shotgun, but Reno could not tell if it was the same man who

had carried the gun before. The men ran to the apartment complex and out of sight.

Three or four minutes later, the dark car left the apartments, heading eastbound on Ninth

Street, and turning north onto McKinley Street.

Kenneth and Denyse Elder lived in the apartment building on Ninth Street.

Denyse was upstairs at another apartment baby-sitting. Kenneth was at home. At

approximately 3:00 a.m., they each heard gunshots, and, soon afterward, sirens.

Kenneth saw a car pull up to a dumpster in the parking lot of the apartment

complex. He saw a man get out of the car and throw something over a brick wall.

Kenneth went upstairs to see Denyse and take her a cigarette. As he returned downstairs,

he saw a Black man who looked like Hampton. They exchanged a short greeting:

“What’s up.” Kenneth saw the man go toward the laundry room and start talking to

another man, who looked like Bayliss.

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 From the upstairs apartment where she was baby-sitting, Denyse saw a car with its

headlights off leaving the parking lot. She thought the car was a Mustang, because she

saw the taillights grouped in threes; she had owned a Mustang several years earlier.

Kenneth also thought the car he saw by the dumpster was a Mustang.

At approximately 3:30 a.m., the San Bernardino County Sheriff’s Department

received a silent alarm call emanating from the liquor store on Sterling Avenue near

Ninth Street. Deputy Camacho and Sergeant Curry responded to the scene. They found

blood on the handle of the front door of the liquor store. Inside they found the proprietor

lying on his back in a pool of blood. The victim was still moving, but did not respond to

Deputy Camacho’s questions.

Paramedics took the victim to the hospital, but he died. The victim was killed by

gunshot wounds. Nearly a dozen shotgun pellets inflicted wounds, mostly to the victim’s

front and right side; he had apparently been turning away from the blast. The pellets

struck and injured many of the victim’s internal organs, including the liver, right kidney,

intestines, and a major blood vessel in the leg.

In the morning of November 23, the Elders looked into the apartment dumpster

where the strange car had pulled up. They saw a blue Pendleton shirt inside. On the

other side of the wall, where Kenneth had seen one of the men throw something, they

located a blue steel .38-caliber revolver. They showed sheriff’s detectives what they had

found. Investigating officers also found a knit cap on a fence near the apartment

complex, and a baseball cap in the back yard of a nearby house.

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 Sheryl Hilt testified that she had seen Hampton wearing the blue Pendleton shirt

on the night he and Bayliss talked about doing a robbery. She said that her sister’s

husband had sometimes worn the baseball cap police had found, and the knit cap

belonged to her cousin Francisco. Hilt had seen both caps on a table in her house on the

night the men were talking about a robbery, but the caps were gone after defendants had

left. Hilt’s and Bayliss’s house was on Golondrina Street, north of Ninth Street and a

block west of Sterling Avenue.

In the evening on November 23, 1996, an anonymous tipster called the sheriff’s

station and reported that two people, identified as “Ace” and “Tony” had been talking

about their involvement in the murder at the liquor store. After some further

investigation, detectives found out that one of the men, “Ace,” was defendant Bayliss. At

trial, several witnesses who knew him referred to Bayliss by the nickname “Ace.”

Soon after the killing, Hilt and Bayliss went to Los Angeles. Bayliss told Hilt he

knew the police were looking for him to question him about the murder. Hilt and Bayliss

also went to Sacramento before returning to San Bernardino. They stayed with Hilt’s

sister.

Edwina Newsom lived on Golondrina Street, several houses north of the house

occupied by Hilt and Bayliss. Three buildings, apartments A, B, and C, were situated on

the property where Newsom lived. Newsom lived in apartment A; Hilt’s sister lived in

apartment C. When Hilt and Bayliss returned to San Bernardino from Los Angeles and

Sacramento, they stayed in apartment C with Hilt’s sister. Because Hilt and Bayliss had

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visited Hilt’s sister in the past, Newsom was familiar with Hilt and Bayliss. Newsom had

had several conversations with investigating officers, and gave the officers information

about the killing. Among other things, Newsom told them that she had seen Bayliss and

Burley apparently burying items that were supposed to have been connected to the

killing. As a result of Newsom’s information, officers recovered a .22-caliber handgun

wrapped in newspaper, and a knit cap in a plastic baggie, buried behind Hilt’s and Hilt’s

sister’s residences, respectively.

On January 16, 1997, sheriff’s deputies arrested Hampton and Bayliss at

Hampton’s house. Hampton lived on Hope Street, about two and one-half miles from the

liquor store. Deputies impounded Hampton’s car, a black Thunderbird, at that time.

Meanwhile, inside the liquor store, officers had recovered shells, wadding and

pellets that indicated a shotgun had been used in the killing. Other shotgun pellet strikes

were found outside the building. They also found shoeprints and tire tracks in dirt nearby

and took impressions of the shoeprints and tire tracks. Plaster casts of the tire tracks

matched the tires on Hampton’s black Thunderbird. The shoeprints matched a pair of

shoes owned by Mark Burley. Officers took David Reno to the impound lot to view

Hampton’s car. Reno recognized the triple taillights on Hampton’s Thunderbird, and

immediately said, “‘That’s it. That’s the vehicle.’”

Hampton presented an alibi defense. His wife testified that she had used the

family car, the Thunderbird, to attend school on Friday evening, November 22, and

Saturday morning, November 23, 1996. She arrived home from school at approximately

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10:30 p.m. on Friday. Soon afterward, at approximately 10:40 p.m., she and Hampton

drove to Hampton’s sister’s house, but the sister was not there, so they returned home.

After preparing their children for bed, Hampton’s wife did ask him to go by his sister’s

house again, however. Hampton returned home before 12:00 midnight; Hampton and his

wife then went to bed. The next morning, Hampton’s wife drove the car to school in

Riverside.

Bayliss elected not to present an affirmative defense, though he did call some of

the prosecution witnesses and examined them for purposes of impeaching their

testimony.

When defendants were arrested in January 1997, they were each charged with one

count of murder in the first degree. The information included allegations as to each

defendant that he personally used a shotgun in the commission of the offense (§ 12022.5,

subd. (a)), and that a principal was armed with a shotgun (§ 12022, subd. (a)(1)). The

information further alleged that each defendant had suffered a prior serious felony

conviction (strike prior) (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The information

was amended as to defendant Bayliss to allege an additional count that he was an

accessory to murder (§ 32).

The court impaneled a separate jury for each defendant, and bifurcated trial on the

strike priors. Hampton’s jury found him guilty of murder in the first degree, and found

true the allegations that he personally used a shotgun and that a principal was armed with

a shotgun. Bayliss’s jury found him guilty of first degree murder, and of being an

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accessory to murder. Bayliss’s jury found true the allegation that a principal was armed

with a firearm in the commission of the murder. In a bifurcated court trial, the court

found true the strike prior allegations as to each defendant.

The court sentenced Hampton to a term of 50 years to life for the murder (a term

of 25 years to life, doubled for the “second strike” conviction), plus four years for the

personal use enhancement. The court stayed the armed with a firearm enhancement.

Bayliss received a similar sentence. Both defendants appealed.

On direct appeal, defendant (and his codefendant) argued : (1) that the court

improperly denied their motions for mistrial when the prosecutor failed to turn over

discovery promptly; (2) that the court improperly precluded them from inquiring into the

custody status of one of the witnesses; and (3) that certain errors cumulatively prejudiced

their trials: i.e., the defendants were precluded from bringing in certain evidence

concerning possible third-party culpability, the court improperly allowed evidence to be

admitted of threats against a witness, the court erred in allowing an officer to testify about

certain information he was given by informants, and the court abused its discretion in

precluding defendants from asking a police officer about newspaper articles. We

affirmed the convictions. (People v. Marlon Bayliss et al., E023847, unpublished opn.

filed June 14, 2000.)

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 On May 3, 2019, following the enactment of section 1170.95 pursuant to Senate

Bill No. 1437, Bayliss filed a petition for resentencing.2 The trial court determined that

defendant had established a prima facie case for relief and set an evidentiary hearing3 on

the merits of the resentencing request. A court trial was conducted at which the parties

agreed the court would consider the clerk’s transcripts, reporter’s transcripts, and the

unpublished opinion in the direct appeal, case No. E023847, as the record of conviction.

In addition, the parties agreed the court would consider a stipulated fact, to wit: that the

evidence logs and police reports show that a loaded .38 caliber handgun with electrical

tape around the handle, was found near the crime scene. The gun had been brought to

court along with photos during the trial of the charges but were not offered into evidence.

After reviewing the evidence submitted at the hearing, the trial court found

defendant Bayliss was armed with a firearm at the time of the attempted robbery,

although he did not use it other than as a show of force for the robbery, which explained

defendant’s post incident behavior involving the gun. The court concluded, after

applying the factors set forth in People v. Banks (2015) 61 Cal.4th 788 (Banks) and

People v. Clark (2016) 63 Cal.4th 522 (Clark), that defendant Bayliss was a major

participant based on his planning of the robbery and the supplying of the weapons. The

2 On April 1, 2021, defendant filed a Petition for Writ of Habeas Corpus,
challenging the validity of his first degree murder conviction as violative of People v.
Chiu (2014) 59 Cal.4th 155, made retroactive in In re Martinez (2017) 3 Cal.5th 1216,
1223. We address the petition in a separate order.

3 The trial court never expressly issued an order to show cause in setting the
evidentiary hearing, but both parties proceed as if the court did so.

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court also determined that Bayliss acted with reckless indifference to human life because

he, along with Hampton, (1) knew a lethal weapon would be present; (2) did not take

steps to try to save the victim or help him, after lethal force was used by Hampton; (3)

Bayliss ran away and escaped the crime scene, and (4) did nothing to minimize the

possibility of violence.

Concluding that a properly instructed jury would find defendant was a major

participant, acting with reckless indifference to human life under current law, the court

denied the petition for resentencing.

On September 23, 2020, defendant appealed.

DISCUSSION

Defendant argues the trial court applied the wrong standard of proof and that the

judgment is not supported by the substantial evidence test. We will begin with a brief

overview of the statutory procedure pertaining to evidentiary hearings on petitions for

resentencing pursuant to section 1170.95 before addressing the specific points raised by

defendant.

A. Review of the Statutory Scheme

Following enactment of Senate Bill No. 1437, section 189, subdivision (e) now

provides that a participant in the perpetration or attempted perpetration of a felony listed

in subdivision (a), in which a death occurs, is liable for murder only if one of the

following is proven: (1) The person was the actual killer; (2) The person was not the

actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced,

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solicited, requested, or assisted the actual killer in the commission of murder in the first

degree; or (3) The person was a major participant in the underlying felony and acted with

reckless indifference to human life, as described in subdivision (d) of Section 190.2.

(§ 189, subd. (e)(3).)

The Legislature enacted the amendments because it was concerned about the

disparity between individual culpability and punishment then existing under the natural

and probable consequences doctrine and the felony murder rule. (See Stats. 2018, ch.

1015, § 1, subds. (f), (g).) Senate Bill No. 1437 reformed aider and abettor liability in

homicide cases to more equitably sentence both past and future offenders so that a

person’s culpability for murder must be premised upon that person’s own actions and

subjective mens rea. (Ibid.)

The Legislature incorporated the additional elements into section 189, subdivision

(e) based on clarification provided by the Supreme Court in Banks, supra, 61 Cal.4th at

pages 794, 803, and Clark, supra, 63 Cal.4th at pages 614-618, which, in turn, interpreted

and applied holdings by the United States Supreme Court. As the Supreme Court

explained in Banks, “Section 190.2(d) was designed to codify the holding of Tison v.

Arizona (1987) 481 U.S. 137 [(Tison)][95 L. Ed. 2d 127, 107 S. Ct. 1676], which

articulates the constitutional limits on executing felony murderers who did not personally

kill. Tison and a prior decision on which it is based, Enmund v. Florida (1982) 458 U.S.

782 [(Enmund)][73 L. Ed. 2d 1140, 102 S. Ct. 3368], collectively place conduct on a

spectrum, with felony-murder participants eligible for death only when their involvement

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is substantial and they demonstrate a reckless indifference to the grave risk of death

created by their actions.” (Banks, at p. 794.)

Banks highlighted that, under Enmund and Tison, the focus is on “the defendant’s

personal role in the crimes leading to the victim’s death.” (Banks, supra, 61 Cal.4th at p.

801.) “Tison and Enmund establish that a defendant’s personal involvement must be

substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony

murder such as Earl Enmund.” (Id. at p. 802.) As for the mental aspect of culpability,

“‘[t]he defendant must be aware of and willingly involved in the violent manner in which

the particular offense is committed, demonstrating reckless indifference to the significant

risk of death his or her actions create.’ [Citation.]” (People v. Wilson (2021) 69

Cal.App.5th 665, 682.)

The existence or nonexistence of the elements (or factors) of major participation

and reckless indifference to human life determine a defendant’s eligibility for relief under

section 1170.95 as a person who, although not the killer, was convicted of felony murder

before the amendments to section 189. (See In re Taylor (2019) 34 Cal.App.5th 543,

561, [“the standard under section 189, subdivision (e)(3) for holding such a defendant

liable for felony murder is the same as the standard for a special circumstance under

section 190.2(d), as the former provision expressly incorporates the latter”]; see also,

People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419 [because “[t]he language of

the special circumstance tracks the language of Senate Bill 1437 and the new felony-

murder statutes,” a jury’s true finding on section 190.2, subdivision (d) renders a section

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1170.95 petitioner ineligible for relief]; People v. Jones (2020) 56 Cal.App.5th 474, 482,

rev. granted Jan. 27, 2021, S265854.)

The factors to be considered include: “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, supra, 61 Cal.4th at p. 803, fn. omitted.)

No 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”

(Tison, supra, 481 U.S. at p. 157) was sufficiently significant to be considered “major

and whose mental state is one of reckless indifference to the value of human life.” (Id., at

p. 152.) While no single factor controls the determination, the answers to these questions

aid in determining where on the spectrum of involvement in the underlying felony the

non-killer coparticipant’s conduct lies.

“If the section 1170.95 petition contains all the required information, including a

declaration by the petitioner that he or she was convicted of murder and is eligible for

relief [citation], section 1170.95, subdivision (c), requires the court to appoint counsel to

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represent the petitioner, if requested; to direct the prosecutor to file a response to the

petition and permit the petitioner to file a reply; and to determine if the petitioner has

made a prima facie showing that he or she is entitled to relief.” (People v. Mancilla

(2021) 67 Cal.App.5th 854, 863; see also People v. Lewis (2021) 11 Cal.5th 952.

Then, if the requisite prima facie showing is made, the trial court is required to

issue an order to show cause and conduct an evidentiary 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 had not . . . previously been

sentenced, provided that the new sentence, if any, is not greater than the initial sentence.”

(§ 1170.95, subd. (d)(1); People v. Verdugo (2020) 44 Cal.App.5th 320, 328, overruled

on a different point in People v. Lewis, supra, 11 Cal.5th at pp. 961-962.)

“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.’ [Citation.]”

(People v. Lewis, supra, 11 Cal.5th at p. 960.) The prosecutor and petitioner may rely on

the record of conviction or offer new or additional evidence. (Se People v. Tarkington

(2020) 49 Cal.App.5th 892, 898-899, overruled on a different point in People v. Lewis,

supra, 11 Cal.5th at p. 963.; People v. Edwards (2020) 48 Cal.App.5th 666, 674,

overruled on a different point in People v. Lewis, supra, 11 Cal.5th 963.)

The California Supreme Court has not yet explained what specific findings the

trial court must make on the question of whether the People have proven, beyond a

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reasonable doubt, that the defendant is ineligible for resentencing. Without guidance, a

split of decision among the appellate districts has developed, as will be discussed below.

B. Burden of Proof and the Trial Court’s Duties Following the Evidentiary

Hearing.

1. The People’s Burden of Proof

Defendant devotes considerable attention to the question of whether the trial court

held the People to the proper burden of proof but, despite the focus given to the People’s

argument on that subject, the record shows the trial court reviewed the relevant case law

and ruled that the People had the burden of proving beyond a reasonable doubt that the

defendant falls into one of the categories that precludes resentencing relief. In other

words, the trial court followed the statutory prescription that the People “prove, beyond a

reasonable doubt, that the petitioner is ineligible for resentencing.” The court specifically

ruled that Senate Bill No. 1437 required the People to prove beyond a reasonable doubt

that the defendant falls into one of the categories precluding resentencing, based on

section (e)4(1), (2) or (3). The People’s attempts to persuade the court that it need only

prove beyond a reasonable doubt that the defendant “could not be” as opposed to “would

not be” convicted of first or second degree murder are irrelevant. The trial court imposed

on the People the correct burden of proof.

4 The Reporter’s Transcript indicates the trial court initially referred to section
“189 (e)(1), (2), and (3),” but at the end of the paragraph, the transcript mistakenly refers
to section “189 (b)(1), (2), and (3).” We assume the court was referring to the same
subdivision of section 189.

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 2. The Standard of Proof by Which Trial Court Findings Are Made.

The defendant also argues that the trial court applied the wrong standard in

denying the petition, asserting that the court used a sufficiency of the evidence standard

as opposed to a factual finding. However, defendant does not direct us to any place in the

record where the court actually stated it would apply a substantial evidence review to

determine if defendant could be convicted of murder. And during the hearing, the People

reminded the trial court that it was obliged to make factual findings beyond a reasonable

doubt. It was defense counsel who argued the court did not have to find facts beyond a

reasonable doubt, although the defense argued the court must find all elements present,

but the court’s analysis of the specific elements applicable to the determination of the

petition demonstrate it made findings on those elements in finding defendant ineligible

for resentencing.

Divergent approaches have been adopted by the appellate districts regarding the

nature of the findings the trial court should make in resolving a petition for resentencing

following an evidentiary hearing. The statute does not state what the trial court’s duty is

vis-à-vis its role as a finder of fact. It simply refers to the court “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 had not been previously

sentenced, provided that the new sentence, if any, is not greater than the initial sentence.”

(§ 1170.95, subd. (d)(1).) A trial court could reasonably interpret this as requiring a

determination of whether the defendant is eligible or ineligible, based on the People’s

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proof beyond a reasonable doubt that the requisite elements have been established, absent

additional legislative direction.

Some guidance may be discerned from legislation passed following the Supreme

Court’s decision in People v. Lewis, supra, 11 Cal.5th 952, which clarified when counsel

may be appointed for petitioners seeking resentencing relief and clarified the standard by

which a prima facie basis for relief is determined. In that amendment, which became

effective January 1, 2022, the Legislature codified the Supreme Court’s holdings, and

modified the language of subdivision (d)(3) of section 1170.95 by adding: “A finding

that there is substantial evidence to support a conviction for murder, attempted murder, or

manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is

ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior

conviction, and any allegations and enhancements attached to the conviction, shall be

vacated and the petitioner shall be resentenced on the remaining charges.” (Stats. 2021

ch. 551 § 2 (Sen. Bill No. 775), effective January 1, 2022.)

The newest amendment suggests that the trial court must make findings on the

existence of the elements of major participation and reckless indifference to human life,

and not merely review the sufficiency of the evidence to support the jury’s verdict, but

even that is not clearly spelled out. But here, the court reviewed the evidence to

determine the existence of the new elements rather than reviewing the record to

determine if there was substantial evidence to support the first degree murder verdict.

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 The current split of authority is the subject of several cases which were pending at

the time the Supreme Court ruled in People v. Lewis, supra, 11 Cal.5th 952. That split of

authority was eliminated following the Supreme Court’s actions in the affected cases.

Nevertheless, while the statutory language is less than clear, the Legislature’s

reference in section 1170.95, subdivision (d), to the evidence that is admissible in the

evidentiary hearing which “the court” is required to “consider” strongly suggests that the

trial court acts as a trier of fact at the hearing, at which the People have the burden to

prove beyond a reasonable doubt that the defendant committed murder under the

amended law. (§ 1170.95, subd. (d)(3); People v. Clements (2022) 75 Cal.App.5th 276,

295-296.) The trial court is not permitted to make its determination based on a finding

that there is substantial evidence to support a conviction for murder, attempted murder, or

manslaughter in the record of conviction. (§ 1170.95, subd. (d)(3).)

The defendant’s argument may refer to language used by the trial court in its

ruling, but, contrary to defendant’s assertion, the court did not simply review the murder

conviction to determine if there was substantial evidence to support first degree murder.

The trial court did much more, and its ruling on eligibility for relief specifically

addressed the evidence establishing the new statutory elements before ruling that the

defendant was ineligible for resentencing.

The court first examined whether defendant was a major participant and reminded

the parties that “the evidence has to show that Mr. Bayliss exhibited reckless

indifference, which means that he knowingly engaged in criminal activities that he knew

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involved a great risk of death. He must have been aware of and willingly involved in the

violent manner in which the particular offense was committed, demonstrating reckless

indifference to the significant risk of death his actions created.”

The court then evaluated every Banks factor, using CALCRIM No. 540 as a guide.

In the end, the court expressly concluded that defendant was a major participant. After

reviewing the evidence supporting the existence of a reckless indifference to human life,

the court stated, “if this case were tried in front of a jury, based on this evidence, the jury

would conclude that Mr. Bayliss was a major participant who acted in reckless disregard

[sic].”

The only reasonable interpretation of the court’s ruling is that it made the factual

determination that the two elements the People needed to prove beyond a reasonable

doubt in order to justify a determination defendant was ineligible for resentencing had

been proven beyond a reasonable doubt. We recognize the court’s statement regarding

what the jury would have found was similar to statements made in certain cases where

the trial court was found to have applied an erroneous substantial evidence review of the

record, but they do not necessarily mean the court applied the wrong standard. The court

did not find there was substantial evidence to support the first degree murder conviction

as happened in the cases where reversal was ordered.

Additionally, the statute simply refers to a determination whether the defendant

was “ineligible for resentencing” based on the People’s proof beyond a reasonable doubt

relating to the new elements. The cases in which the trial court’s findings were deemed

20
incorrect or inadequate invariably omitted the trial court’s examination of and findings as

to the elements of major participation and reckless indifference to human life, or the trial

court’s express assent that it must find the relevant factors required by section 189,

subdivision (e)(3) true beyond a reasonable doubt, as happened here. Thus, while the

court’s findings did not expressly state the two factors were proven beyond a reasonable

doubt, its reasoning demonstrates it did so find.

Further, the court’s specific references to the People’s burden of proof being

beyond a reasonable doubt that the defendant is ineligible, its recognition that ineligibility

required proof beyond a reasonable doubt that defendant’s conduct falls within that

described in section 189, subdivision (e), followed by its findings as to the Banks factors

that were proven by the evidence, and its determination that a properly instructed jury

finding the defendant guilty of first degree murder in the light of the required elements

that he was a major participant who acted with reckless indifference, signifies the court

necessarily applied the beyond a reasonable doubt test to the new statutory elements that

must now be met pursuant to sections 188 and 189.

Because the court did examine and make findings that defendant was a major

participant who acted with reckless indifference to human life, there is little room to

argue that the court did not so find. It engaged in a meticulous and lengthy weighing of

the factors prescribed by Banks and Clark, applying the evidence from the record of

conviction, in addition to the newly stipulated fact that a second loaded firearm, provided

by defendant, was involved in the crime. By concluding that defendant was ineligible for

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resentencing, it necessarily found the People had proven beyond a reasonable doubt that

the defendant was a major participant who acted with reckless indifference to human life,

because those were the elements which, if proved beyond a reasonable doubt, rendered

defendant ineligible for resentencing. To conclude otherwise on this record is to elevate

form over function.

Finally, we note that at no point did the defendant seek clarification of the court’s

ruling and at no time did the court state that it was approaching the hearing as if it were a

reviewing court determining if there was substantial evidence to support a finding on the

new elements. The court’s statements, read as a whole and in context, show that the

court understood it was required to find the new elements of felony murder committed by

someone other than the actual killer had been proved, not find merely that there was

sufficient evidence from which some hypothetical jury could make such findings. In

other words, the court did not simply apply an appellate substantial evidence standard to

the first degree murder conviction.

In any event, even if the record could be susceptible to an inference that the court

applied the wrong standard in denying the petition, any error was harmless beyond a

reasonable doubt in light of the record evidence supporting the existence of the two new

elements beyond a reasonable doubt, to which we now turn our attention.

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 C. There is Substantial Evidence to Support the Determination that Defendant

was a Major Participant Acting with Reckless Indifference to Human Life.

Defendant argues that the People did not satisfy their burden of proof, and that the

evidence is insufficient as a matter of law to support the judgment. We disagree.

1. Standard of Review

Defendant also argues that the de novo standard of review applies, referring to the

standard applied in questions of statutory interpretation. We agree the de novo standard

of review applies to questions of statutory interpretation. (People v. Watson (2021) 64

Cal.App.5th 474, 484, citing People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)

However, on appeal from a denial of relief following an evidentiary hearing under

section 1170.95, subdivision (d). We review the trial judge’s factfinding for substantial

evidence. (People v. Clements, supra, 75 Cal.App.5th at p. 298, citing People v.

Gregerson (2011) 202 Cal.App.4th 306, 320.) )

Under that familiar standard, “‘we review the entire record in the light most

favorable to the judgment to determine whether it contains substantial evidence-that is,

evidence that is reasonable, credible, and of solid value-from which a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt’” under section 188 as

amended. (People v. Morales (2020) 10 Cal.5th 76, 88; Clements, supra, 75 Cal.App.5th

at p. 298.)

In conducting a substantial evidence review, we presume the existence of every

fact the court as fact finder could reasonably deduce from the evidence in support of the

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court’s order. (People v. Beck and Cruz (2019) 8 Cal.5th 548, 626; People v. Whisenhunt

(2008) 44 Cal.4th 174, 200.) “‘We do not reweigh evidence or reevaluate a witness’s

credibility.’ [Citation.]” (Whisenhunt, supra, at p. 200.)

2. Analysis

Here, we are concerned with whether the record evidence contains substantial

evidence to support the existence of the newly required elements applicable to a felony

murder conviction of a participant who did not actually commit the killing. Banks and

Clark hold that evidence showing no more than that a defendant is guilty of felony

murder simpliciter, even if he knows a coperpetrator is armed, is insufficient to meet the

minimum individual culpability standard of reckless indifference to human life. (People

v. Secrease (2021) 63 Cal.App.5th 231, 260.) At the hearing, the parties stipulated that

the court would base its decision on the record of conviction, which included the trial

transcripts, the preliminary hearing transcript, and our decision in the direct appeal,

People v. Marlon Bayliss, et al., E023847, as well as the additional stipulated fact that a

second loaded firearm, a .38 caliber handgun, was involved in the crime.

The record reveals that the court was attentive to the factors discussed in the Banks

and Clark decisions, which aid in the determination of whether a defendant who is not the

killer may be found guilty of first degree felony murder in light of the statutory changes

to sections 188 and 189. The amended statutes imported the elements of “major

participant” and “reckless indifference to human life” from section 190.2, where these

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elements are pre-requisite to a true finding of special circumstances. (Banks, supra, 61

Cal.4th at p. 794.)

Applying the Tison factors, the Banks court went on to summarize: “With respect

to the mental aspect of culpability, Tison, and in turn section 190.2(d), look to whether a

defendant has “‘knowingly engag[ed] in criminal activities known to carry a grave risk of

death.’” [Citation.] The defendant must be aware of and willingly involved in the

violent manner in which the particular offense is committed, demonstrating reckless

indifference to the significant risk of death his or her actions create.” (Banks, supra, 61

Cal.4th at p. 801.) In enacting Senate Bill No. 1437, the Legislature extended the

requirement that these elements be met for all persons charged with felony murder who

are not the actual killer.

Respecting the subjective element of reckless indifference to human life, the

California Supreme Court in Clark stated: “In determining whether Clark exhibited

“‘“reckless indifference to human life”’” within the meaning of section 190.2,

subdivision (d), we look to whether the prosecution has introduced sufficient evidence of

‘““reasonable, credible, and of solid value”’” to ‘support a finding beyond a reasonable

doubt’ that Clark had the requisite mental state. [Citation.] The court emphasized,

however, “‘[n]o one of these considerations is necessary, nor is any one of them

necessarily sufficient.’ [Citation.]” (Clark, supra, 63 Cal.4th at p. 618 )

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 Defendant argues that instead of making the requisite determinations as to the new

statutory elements, the trial court applied a substantial evidence test. We disagree. This

assertion is not supported by the record.

The trial court went through each factor described in Banks and Clark and

carefully weighed the evidence adduced during trial, as the parties had stipulated that the

court would consider the trial transcripts, preliminary hearing transcript, our opinion in

the direct appeal, and the additional stipulated fact regarding the loaded .38 caliber

handgun. In considering the evidence, the trial court carefully went through each factor

to be assessed in making the determination that a defendant was a major participant

acting with reckless indifference to human life and weighed the factors which establish

substantial evidence to support the conclusion that defendant was a major participant who

acted with reckless indifference.

Specifically, the court found, in support of the major participation element: The

defendant was actively involved in planning the robbery that led to the homicide. He

provided not one, but both loaded firearms carried by the defendant and Hampton to the

robbery,5 which increased the risk of lethal violence. He was present at the scene of the

robbery, not in a getaway car; he was present at the shooting, unlike a getaway car driver.

He actively participated in dumping evidence that might inculpate him, including his

5 According to the record on appeal in Bayliss’ original appeal, People v.
Hampton, et al., E023847, Bayliss provided the shotgun used by Hampton as well as the
.38 caliber firearm that formed the basis for the armed enhancement against him. The
trial court took judicial notice of the record on appeal at the time of the evidentiary on
defendant’s petition for resentencing.

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loaded .38 caliber firearm, and did nothing to minimize the risk of lethal violence or to

aid the victim after the lethal violence occurred.

The trial court struggled more with the element of reckless indifference to human

life, but the court’s major concern was that the shooting was sudden and spontaneous

based on the Hampton’s subjective fear that the victim was going to pull a firearm.

Nevertheless, there is no arithmetic formula for determining the minimum number of

factors required to meet the elements. (Banks, supra, 61 Cal.4th at p. 803.) Instead, as

emphasized in Banks, there is a spectrum of conduct upon which the defendant’s conduct

must be plotted. (Id., at p. 800, citing Tison, supra, 481 U.S. at p. 149.)

Here, as to the reckless indifference to human life element, the defendant’s

conduct placed him at the more culpable end of the spectrum, as reflected in the facts of

Enmund, supra, 458 U.S. 782. The court found defendant knew that a lethal weapon

would be present because he provided the loaded firearms with which both he and his

coparticipant were armed; he knew the lethal weapons would be used as a show of force

for purposes of committing the robbery; he was present at the robbery (as opposed to

waiting in a car some distance from the crime) and was present when Hampton fired the

shot that killed the victim and did nothing to aid the victim; he did not expect Hampton to

fire the shotgun so he did not have an opportunity to stop the shooting; but he did not

attempt to minimize the possibility of violence.

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 Reviewing the record of the evidentiary hearing as a whole, there is substantial

evidence that defendant was a major participant who acted with reckless indifference to

human life.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.

We concur:

CODRINGTON
J.

FIELDS
J.

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