Filed 6/2/22 P. v. Landers CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B313663
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA075960)
v.
TREVOR GLENN LANDERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Judith L. Meyer, Judge. Affirmed.
J. Tony Serra, Tyler Smith, and Erica Treeby for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Trevor Glenn Landers (defendant) appeals the trial court’s
denial of relief under Penal Code section 1170.95 after an
evidentiary hearing.1 Because the trial court’s findings are
supported by substantial evidence, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The underlying crime
In 2007, defendant and his cousin Anthony Vigeant
(Vigeant) were United States Marines stationed at Camp
Pendleton Marine Base. In August of that year, they befriended
Ramon Hernandez (Hernandez), a fellow Marine who told them
about the injuries he had received on his second tour of duty in
Iraq. His injuries were significant: He had shrapnel inside his
brain. He lost his left eye, his sense of smell, his left frontal lobe
and part of his right frontal lobe. He suffered nerve damage in
his right arm and hand. And his brain injuries affected his
thinking, causing him to process information more slowly and
diminishing his ability to feel empathy toward others.
Soon after meeting Hernandez, defendant and Vigeant told
him that they had a problem with a man named David Pettigrew
(Pettigrew). They explained that defendant had agreed to buy
cocaine from Pettigrew, who had taken Vigeant’s laptop as
security for the upcoming deal, and Pettigrew had yet to produce
the cocaine or return the laptop. Pettigrew was a total stranger
to Hernandez.
On the night of September 7, 2007, and early the next
morning, Vigeant and defendant called Pettigrew several times in
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
Hernandez’s presence. Defendant left a message warning
Pettigrew that he “better fuckin’ call [defendant] back.” Vigeant
also left messages further warning Pettigrew that “he and [his]
cousin” (that is, defendant) were “ready to rumble,” that
Pettigrew was “fucked if [he] tr[ied] to run” because they “kn[e]w
where to find [him],” and were “gonna come to [his] house,” where
it would “get really ugly.”
On September 9, 2007, defendant was again complaining to
Vigeant and Hernandez about Pettigrew. At one point, defendant
stated that, if he had a gun, “he would bust a cap in [Pettigrew’s]
ass.” Hernandez offered up that he had a handgun. Upon
hearing this, defendant became “excited, very enthusiastic,”
asked Hernandez where the gun was located, and indicated that
he wanted to retrieve it to shoot Pettigrew.
Because Hernandez’s barracks was a 45-minute drive to
the south, defendant drove the three of them to retrieve the gun
and then turned around and drove two hours north to get to
Pettigrew’s apartment in Long Beach. During that drive,
Hernandez said he did not like that Pettigrew was messing with
fellow Marines. He asked defendant and Vigeant what they
wanted him to do. Their response? Shoot Pettigrew. When
Hernandez pointed out the difference between being shot and
being dead, and asked, “Which one do you want?” Defendant
clarified, “I want him dead.” Defendant indicated at least three
times that he wanted Pettigrew killed. In preparation for the
confrontation to come, Hernandez loaded his gun and fired it out
the car’s window.
When they arrived at Pettigrew’s apartment, Hernandez
again asked defendant to confirm his instructions, “Are you sure
this is what you want? If you want this guy dead and he doesn’t
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give you what you want, then I am going to shoot him because
you said you want him dead?” Defendant responded that he
wanted Pettigrew “Dead.”
Defendant climbed a fence to check if they could access
Pettigrew’s apartment through a window. He came back and told
the others they would have to go through the front door.
Hernandez did not want to enter the apartment “blind,” so
defendant drew a “floor plan” for him out of twigs and small
rocks.
When the three men entered the apartment, Pettigrew
appeared to be asleep or passed out. When he awoke, defendant
yelled, “Where is my coke? Where is [Vigeant’s] computer?
Where is my shit?” Pettigrew offered to call his dealer to get the
cocaine, but when Pettigrew placed a call with his cell phone, he
called defendant’s phone.
At that point, Hernandez pulled out the gun and stated he
would give Pettigrew 10 seconds to produce either the laptop or
the cocaine. Defendant did not stop Hernandez or tell him to put
the gun away. Instead, defendant and Vigeant told Pettigrew to
call his dealer “and get the coke here right now” because
Hernandez “is going to shoot you” “when he gets to ten.”
Hernandez counted very slowly, pausing approximately 10 or 15
seconds between each number. When he got to 10, he pulled the
trigger and shot Pettigrew from a distance of about four feet.
Defendant jumped back and stated, “Dude, you almost got blood
on me.”
Rather than checking whether Pettigrew was still alive, all
three men fled the apartment, ran to the car, and defendant
drove away. In total, the three men were inside of Pettigrew’s
apartment for “no more than 20 minutes.”
4
Defendant drove them back to Camp Pendleton. Once
there, they went to defendant’s room and “hung out” for about
three more hours drinking. Defendant told Hernandez that he
should have shot Pettigrew two more times to ensure he was
dead. They agreed not to say anything about what happened and
to pretend they did not know each other.
B. Charging, conviction, and appeal
1. Charges
In the operative, first amended information, the People
charged defendant and Vigeant with the first degree murder of
Pettigrew (§ 187, subd. (a)), attempted home invasion robbery (§§
664, 211), and first degree residential burglary (§ 459). As to the
murder, the People alleged the special circumstance that
defendants “were engaged in the attempted commission of the
crime of robbery” and “in the commission of the crime of
residential burglary” (§ 190.2, subd. (a)(17)). As to all three
crimes, the People further alleged that “a principal was armed”
during those crimes (§ 12022, subd. (a)).
2. Trial and conviction
Hernandez ended up pleading to all counts without a plea
agreement, but agreed to testify for the prosecution.
The matter proceeded to a joint jury trial against defendant
and Vigeant.2 The jury convicted defendant of first degree
murder, attempted home invasion robbery, and first degree
residential burglary. The jury found true the special
2 This was a retrial for defendant. Defendant’s first trial had
been severed from Vigeant’s due to a scheduling conflict. That
jury hung.
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circumstance allegation and made true findings on the firearm
enhancement.
3. Sentence
Defendant was sentenced to an indeterminate term of life
without the possibility of parole, plus a determinate term of 66
months in state prison.3
4. Appeal
Defendant appealed his conviction and we affirmed his
conviction in an unpublished opinion.
II. Procedural Background
On February 18, 2020, defendant filed a petition for writ of
habeas corpus seeking relief identical to that available under
section 1170.95, and the trial court construed it as a petition for
resentencing under section 1170.95.
In December 2020, the trial court summarily denied the
petition.
In February 2021, however, the court granted defendant’s
motion to reconsider the denial and set an evidentiary hearing on
the petition. The court held the hearing in May 2021. Defendant
took the stand, testifying that it was Hernandez’s idea to get the
gun and to shoot Pettigrew for disrespecting fellow Marines, that
defendant never asked Hernandez to shoot Pettigrew, and that
Hernandez “took control” of the situation in Pettigrew’s
apartment, rendering defendant and Vigeant powerless to
intervene despite their earnest desire that Hernandez not harm
Pettigrew.
After taking the matter under submission, the court issued
a five-page order denying defendant’s petition. After reviewing
3 Vigeant was convicted of the same crimes as defendant and
received an identical sentence.
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the factors set forth in People v. Banks (2015) 61 Cal.4th 788
(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), the
court found that defendant “was both a major participant and
had reckless disregard for human life” and “that, the prosecution
[ ] established [defendant’s] guilt” under a still-viable theory of
liability “beyond a reasonable doubt.”
Defendant filed this timely appeal.
DISCUSSION
I. Provisions of Section 1170.95
A person makes a prima facie case for relief under section
1170.95—and thus to have a murder conviction “vacated”—if, as
relevant here, they allege that (1) “[a] complaint, information, or
indictment was filed against [him] that allowed the prosecution
to proceed under a theory of felony murder[ or] murder under the
natural and probable consequences doctrine,” (2) he “was
convicted of murder,” and (3) he “could not presently be convicted
of murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a).) The changes
made effective on January 1, 2019 allow a murder conviction to
stand only if a defendant (1) is the actual killer, (2) aided and
abetted the actual killer with the intent to kill, or (3) otherwise
acted as a major participant in an underlying felony and acted
with reckless indifference to human life, or similar form of
implied malice. (§§ 188, 189, subd. (e); In re Scoggins (2020) 9
Cal.5th 667, 674.) What these changes did is codify our
Legislature’s intent that “[a] person’s culpability for murder [is to
be] premised upon that person’s own actions and subjective mens
rea” (Stats. 2018, ch. 1015, § 1(g)), such that the “[m]alice”
necessary to convict a person of murder “shall not be imputed to a
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person based solely on his . . . participation in a crime.” (§ 188,
subd. (a)(3).)
Once this prima facie case is made, a trial court must issue
an order to show cause and hold an evidentiary hearing. The
question at the evidentiary hearing is whether, in the trial court’s
independent opinion, the evidence presented at the defendant’s
original trial as well as any further evidence the parties present
at the evidentiary hearing, establishes the defendant’s guilt of
murder under a still-viable theory beyond a reasonable doubt. (§
1170.95, subd. (d)(3).)
II. Analysis
Because the trial court independently found defendant
guilty of murder because he was a major participant in
Pettigrew’s killing who acted with a reckless indifference to
human life, and because that theory of liability is still viable, the
primary question in this appeal is whether that finding is
supported by substantial evidence.4 (People v. Ramirez (2021) 71
Cal.App.5th 970, 985; People v. Hernandez (2021) 60 Cal.App.5th
94, 113.) As explained below, it is.
4 The People alternatively urge that the trial court erred in
granting an evidentiary hearing in the first place because the
jury’s special circumstance finding amounts to a finding that
defendant was a major participant who acted with reckless
indifference. Defendant responds that the jury’s finding is not a
bar to relief under section 1170.95, however, because that finding
was rendered before the California Supreme Court narrowed the
scope of that special circumstance in Banks and Clark. We need
not address whether relief could have been denied at the outset
because we ultimately conclude that relief was properly denied
after the evidentiary hearing.
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In undertaking substantial evidence review, our task is a
narrow one. We may only ask whether the record contains
“substantial evidence—evidence that is reasonable, credible, and
of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v.
Hubbard (2016) 63 Cal.4th 378, 392.) In so doing, we must view
the record “in the light most favorable” to the trial court’s finding.
(Ibid.) Critically, we may not reweigh the evidence (People v.
Covarrubias (2016) 1 Cal.5th 838, 890); as long as the trier of
fact’s resolution of any conflict in the evidence is “reasonable,” we
cannot reverse just because the trier of fact could have
reasonably resolved the conflict the other way (Hubbard, at p.
392).
Thus, we turn to examining whether substantial evidence
supports the trial court’s subsidiary findings that defendant was
a major participant in the underlying felony and acted with
reckless indifference to human life, as those elements were
narrowed under Banks and Clark.
A. Major participant
Under Banks and Clark, a “major participant” in a burglary
or attempted robbery is someone whose “personal involvement” is
“substantial”; such a participant “need not be the ringleader,” but
his involvement must be “greater than the actions of an ordinary
aider and abettor.” (Banks, supra, 61 Cal.4th at pp. 801-
802; People v. Williams (2015) 61 Cal.4th 1244, 1281.) Courts are
to examine the totality of the circumstances when evaluating the
extent of participation, including several factors our Supreme
Court identified in Banks as relevant but not dispositive on the
issue: (1) the defendant/aider and abettor’s role in planning the
robbery; (2) his role in supplying or using lethal weapons; (3) his
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awareness of the “particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other
participants”; (4) his presence at the scene of the killing and thus
whether he was “in a position to facilitate or prevent the actual
murder”; and (5) his actions after the use of lethal force. (Banks,
at p. 803; Clark, at p. 611.)
Substantial evidence supports the finding that defendant
was a major participant, even when applying the heightened
standard set forth in Banks and Clark.
First, defendant played the lead role in planning the
robbery/burglary—he was “excited” and “very enthusiastic” when
Hernandez revealed he had a handgun; he asked where it was
and how he could get it; he drove the car to get the handgun and
he drove to and from Pettigrew’s apartment in Long Beach; he
repeatedly told Hernandez he wanted Pettigrew dead while they
were driving to Pettigrew’s apartment; and he scoped out
Pettigrew’s apartment and drew a floor plan for Hernandez.
Second, defendant played a major role in obtaining the
weapon used. He recruited Hernandez to get his handgun; he
drove 45 minutes to get the gun, in the opposite direction of
Pettigrew’s apartment; he saw the gun and heard Hernandez test
it while driving to Pettigrew’s apartment; and he did nothing to
dissuade Hernandez from bringing it into Pettigrew’s apartment.
Third, defendant was aware of the particular dangers posed
by the nature of the crime and the participants. Hernandez told
defendant about his combat history and physical and
psychological injuries; the plan involved robbing and burglarizing
a drug dealer; defendant knew Hernandez was armed; and
defendant repeatedly affirmed that he wanted Pettigrew dead if
he did not get his cocaine. Given that defendant repeatedly
10
stated his plans in front of Hernandez and saw how Hernandez
eagerly supported him in those plans and how Hernandez then
asked for specific instructions on whether to kill or just maim
Pettigrew, the evidence also supports the inference that
defendant was aware that Hernandez was very suggestible.
Fourth, defendant was at the scene of the killing and did
not intervene in any way to stop Hernandez from shooting
Pettigrew even though he was so close that blood from
Pettigrew’s head wound almost splattered him.
Fifth, and finally, defendant did not render any aid to the
victim. Instead, he drove the car that fled the scene; he stopped
to get some food on the drive back to Camp Pendleton; he “hung
out” with his cohorts for a few hours after they got back to base;
and he told Hernandez he should have shot Pettigrew two more
times to ensure he was dead.
Defendant offers two related arguments against this
conclusion. First, he argues that the evidence upon which the
prosecution relied and upon which the jury convicted him—
Hernandez’s testimony—was “inconsistent, unreliable, and
undercut by new evidence” defendant presented at the
evidentiary hearing. The “new evidence” defendant proffered
included: (1) transcripts of police interviews with both the
defendant and Hernandez, (2) two letters Hernandez wrote to
defendant’s brother more than four years after the murder, and
(3) the trial transcript from defendant’s first trial. At most, this
new evidence provides some fodder for impeaching Hernandez’s
trial testimony with additional inconsistencies, and some support
for the notion that defendant’s statements to police and his
testimony at the first trial were consistent with one another.
However, this additional impeachment evidence does not call into
11
question the jury’s implicit conclusion that Hernandez was a
credible witness. Under the substantial evidence standard, we
cannot gainsay the jury’s credibility finding. (People v. Brown
(2014) 59 Cal.4th 86, 106.)
Second, defendant takes issue with the trial court’s
analysis of the specific Banks factors bearing on major
participation, arguing that (1) defendant’s role was minimal and
he did not recruit Hernandez or seek out his assistance; (2) he
“played no role in supplying or using the gun”; (3) he was
“unaware of Hernandez’s violent or hair-trigger temper”; (4) he
was not in a position to stop the shooting from occurring because
“Hernandez took complete control of the situation and pushed
[defendant] . . . out of the way”; and (5) defendant was in a “state
of shock” after the shooting, which was consistent with “someone
completely surprised by what had occurred.” But, as noted above,
the evidence adduced at trial contrasted sharply with defendant’s
testimony at that evidentiary hearing. At bottom, defendant is
asking us to reweigh the conflicting evidence—that is, the
evidence presented to (and accepted by) the jury versus his
testimony. The trial court went with the evidence presented to
the jury over defendant’s self-serving testimony at the section
1170.95 hearing; we cannot reweigh the evidence to come to a
different conclusion.
B. Reckless indifference to human life
Under Banks and Clark, a defendant acts with reckless
indifference to human life when he ““‘knowingly engag[es] in
criminal activities known to carry a grave risk of death.””’
(Banks, supra, 61 Cal.4th at p. 801, quoting People v.
Estrada (1995) 11 Cal.4th 568, 577, quoting Tison v. Arizona
(1987) 481 U.S. 137, 157-158.) This standard “has a subjective
12
and an objective” component. (Scoggins, 9 Cal.5th at p. 677.) To
satisfy the subjective component, ‘“[t]he defendant must be aware
of and willingly involved in the violent manner in which the
[underlying felony] is committed,’ and . . . must consciously
disregard ‘the significant risk of death his or her actions create.’”
(Scoggins, at p. 677, quoting Banks, at p. 801.) The key is
whether the defendant evinces “a willingness to kill (or to assist
another in killing) to achieve a distinct aim, even if the defendant
does not specifically desire that death as the outcome of his
actions.” (Clark, supra, 63 Cal.4th at p. 617.) To satisfy the
objective component, the risk of death ““‘must be of such a nature
and degree that, considering the nature and purpose of the
[defendant’s] conduct and the circumstances known to him[], its
disregard involves a gross deviation from the standard of conduct
that a law-abiding person would observe in the [defendant’s]
situation.””’ (Scoggins, at p. 677, quoting Clark, at p. 617.)
Our Supreme Court has identified a number of
considerations bearing on whether a defendant has acted with
reckless indifference to human life. “No one of these
considerations is necessary, nor is any one of them necessarily
sufficient” (Banks, supra, 61 Cal.4th at p. 803); what matters is
the totality of the considerations (Scoggins, supra, 9 Cal.5th at p.
677). The considerations are: (1) “Did the defendant use or know
that a gun would be used during the [underlying] felony,” and,
relatedly, “[h]ow many weapons were ultimately used?”; (2) “Was
the defendant physically present at the crime,” such that he had
“the opportunity to restrain the crime or aid the victim?”; (3)
“What was the duration of the interaction between the
perpetrators of the [underlying] felony and the victims?”; (4)
“What was the defendant’s knowledge of . . . his confederate’s
13
propensity for violence or likelihood of using lethal force?”; and
(5) “What efforts did the defendant make to minimize the risks of
violence during the felony?” (Id., citing Clark, supra, 63 Cal.4th
at pp. 618-623.)
Substantial evidence supports the finding that defendant
acted with reckless indifference to human life, even when
applying the heightened standard set forth in Banks and Clark.
First, although defendant did not personally use the gun, he
knew Hernandez was armed with a gun and knew he had
confirmed with Hernandez multiple times earlier in the night
that he wanted Pettigrew dead. Second, defendant was present
during the shooting and close to Pettigrew and the shooter.
Additionally, defendant was present and heard Hernandez
during the prolonged count to ten and did not try to stop or
dissuade him from shooting Pettigrew. Third, the entire incident
took approximately 20 minutes, most of which was spent
demanding cocaine from Pettigrew before Hernandez shot him.
Fourth, defendant was aware of Hernandez’s combat record
consisting of two tours in Iraq and the injuries he suffered, and
confirmed multiple times during the night that he wanted
Pettigrew killed. Fifth, and finally, defendant made no effort to
minimize the risk of violence, he did not tell Hernandez to leave
the gun in the car, he did not tell him to put the gun away, and
he did not interrupt Hernandez when Hernandez began counting
to ten which defendant knew was the precursor to shooting
Pettigrew.
Defendant’s response to this second element of the special
circumstances is essentially the same as his responses to the first
element, and lacks merit for the same reasons.
* * *
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Suffice it to say, the record supports the trial court’s
implicit factual finding that defendant manipulated a brain-
damaged veteran into burglarizing and shooting defendant’s
cocaine dealer by suggesting a motive to shoot the dealer,
lamenting about not having a gun, and repeatedly telling the
veteran that the goal was to kill the dealer rather than scare or
maim him. In so doing, defendant was a major participant in the
underlying crimes and acted with reckless indifference to human
life.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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