People v. Davis CA2/1

Filed 6/30/22 P. v. Davis CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE

THE PEOPLE, B313431

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A022161)
v.

DONALD RAY DAVIS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Affirmed.
Eric R. Larson, 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, Assistant
Attorney General, Kenneth C. Byrne and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
 Defendant and appellant Donald Ray Davis challenges the
trial court’s denial of his petition under Penal Code1 section
1170.95 for resentencing of his murder conviction. He does not
dispute that he was a major participant in the underlying
robbery that led to the victim’s death but contends that the trial
court erred in finding he acted with a reckless indifference to
human life within the meaning of section 189, subdivision (e)(3),
rendering him ineligible for resentencing. We disagree.
Substantial evidence exists from which the trial court could have
concluded, beyond a reasonable doubt, that Davis harbored a
reckless indifference to human life. Accordingly, Davis was not
entitled to resentencing, and we affirm the post-judgment order.
BACKGROUND
A. Factual background
At around 9:00 p.m. on September 15, 1980, the victim,
Barry Cohen, and his co-worker, David McDonald, left the
automobile dealership at which they worked and drove in Cohen’s
1973 Firebird to a nearby gas station. McDonald was the
passenger. Cohen spoke with the manager of the gas station
about buying marijuana. The manager headed in the direction of
“the projects” and returned with Davis. Cohen went over to
Davis and the manager, obtained marijuana from the manager,
and walked back to the car, with Davis following closely behind.
Cohen got back in the Firebird and stowed the marijuana in the
glove compartment.

1All further undesignated statutory references are to the
Penal Code.

2
 Davis approached Cohen at the driver’s side window and
told him he could get Cohen any drugs he wanted, including a
“Sherman joint,” which was a PCP cigarette. Cohen asked what
it would cost him to buy a Sherman joint, and Davis replied that
it would cost $20 for a whole stick. Cohen stated that he only had
$8 with him but that he still wanted to buy one and asked
McDonald if he could borrow $10. McDonald responded that he
had $100 with him but that he needed the money for rent and
could not give Cohen any. Davis was crouched at the driver’s side
window, which was completely open, during this discussion.
Cohen told Davis that although he only had $8, he still
wanted to buy a Sherman joint, and Davis said, “Follow me over
into the projects and I will see what I can do.” Cohen and
McDonald followed in the Firebird as Davis led the way by foot.
Davis instructed Cohen to pull around a corner and wait. Davis
then walked into an apartment building, where he remained for
around five to eight minutes. While Davis was gone, another
man approached and discussed drugs with Cohen. When Davis
returned, he asked, “Well, are you going to deal with me or are
you going to deal with this guy?” and the second man left.
Davis then told Cohen that he was going to go get a
Sherman joint, requested Cohen’s money, and told Cohen to
follow him. Cohen handed over the $8 and followed Davis to a
well-lit parking lot. When Cohen started to pull in, Davis
instructed him to go to a second parking lot approximately 75 feet
away, which was “completely dark” with “no lights whatsoever.”
Cohen backed into the second lot.

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 Davis instructed Cohen to back in further after he had
backed a third of the way into the lot. A “Mexican kid”2 emerged
from a nearby apartment building and instructed Cohen to “back
[the car] up all the way” after Cohen stopped about halfway into
the lot. Davis’s accomplice then told Cohen to shut the car off
and that he would be right back.3
After a few minutes, Davis approached the car and handed
McDonald a half Sherman joint through the front passenger
window. As McDonald passed the joint to Cohen, Davis walked
around the front of the Firebird to Cohen’s driver window. As
Davis lit the joint and Cohen leaned forward to take a drag,
McDonald noticed a shotgun barrel pass through the window
behind Cohen’s head. Cohen leaned back after taking a drag and
felt the gun. He then grabbed the barrel of the shotgun and
struggled with Davis’s accomplice, who held the shotgun. Davis
stood at Cohen’s window, right next to his accomplice and said,
“That’s not necessary,” but Davis made no attempt to remove the
shotgun or divert the direction of the barrel. Cohen, still holding
the barrel of the gun, started the car. As the car began to move,
the shotgun fired one shot into Cohen’s upper left chest, causing

2 McDonald tentatively identified the so-called “Mexican
kid” as Mario Orabueno, who was deceased at the time of Davis’s
trial. As his identity was never confirmed, we refer to this
individual as Davis’s accomplice or confederate.
3 At the preliminary hearing, McDonald testified that
Davis and his accomplice both left the parking lot and walked
behind a nearby building. At trial, McDonald testified that he
did not see Davis around at the time his accomplice told
McDonald and Cohen he would be right back, but that he saw
Davis’s accomplice go behind a building.

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him to collapse into McDonald’s lap. Cohen’s foot was still on the
pedal, and McDonald steered the car out of the parking lot and
into the street, where it spun in circles, repeatedly hitting the
curb and some trash cans, before ultimately slowing down. After
the car slowed, McDonald jumped out and began running down
the street. He saw Davis’s accomplice running parallel to him
with the shotgun. McDonald did not see Davis at this time.
Residents of the neighborhood removed Cohen from the car,
and one performed CPR on him, but he died at the scene of his
gunshot wound.
B. Procedural history
In 1981, Davis was convicted by a jury of one count of first
degree murder and one count of attempted robbery. The jury also
found true that a principal used a firearm in the offenses within
the meaning of section 12022, subdivision (a). Davis was
sentenced to a term of 25 years to life for his first degree murder
conviction, plus one year for the firearm enhancement, and two
years for his attempted robbery conviction.
Davis filed a direct appeal arguing that the felony murder
rule should be abolished. The court rejected the argument and
affirmed the judgment.
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.), which eliminated liability for murder
under the natural and probable consequences doctrine and
limited the application of the felony-murder doctrine. (People v.
Gentile (2020) 10 Cal.5th 830, 842–843.) The legislation also
enacted section 1170.95, which established a procedure for
vacating murder convictions for defendants who could no longer
be convicted of murder because of the changes in the law and

5
resentencing those who were so convicted. (Stats. 2018, ch. 1015,
§ 4.)
On September 4, 2019, Davis filed a petition for
resentencing pursuant to section 1170.95 and Senate Bill
No. 1437. On February 26, 2021, the trial court found that Davis
had established a prima facie showing for section 1170.95 relief
and issued an order to show cause. The court held an evidentiary
hearing on April 9, 2021, at which the prosecution introduced
police reports generated in the case and Davis presented only the
partial trial transcript. Davis objected to the use of the
preliminary hearing transcript, probation report, and police
reports for purposes of the evidentiary hearing. The trial court
recognized that it must make an independent determination of
sufficient evidence and stated that its decision would be based on
the trial record and the record contained in the court file. The
trial court also stated that it could consider the preliminary
hearing transcript but would give no deference to the earlier
decision. The court took the matter under submission and
permitted the parties to file additional briefing. Both parties
filed post-evidentiary hearing briefs.
On June 10, 2021, the trial court denied the petition for
rehearing, finding that the People had proved beyond a
reasonable doubt that Davis was a major participant who acted
with reckless indifference to human life under the five-point test
set forth under People v. Banks (2015) 61 Cal.4th 788 (Banks).4
Specifically, the trial court found that it was “abundantly clear

4 The trial court made clear that it did not consider the
People’s proffered hearsay evidence that Davis obtained the gun,
took possession of it after the murder, and disposed of it.

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that Davis planned the criminal enterprise that led to Barry
Cohen’s death” and that Davis “was aware of the particular
dangers posed by the nature of the crime,” as he was “clearly
directing the transaction and setting up the attempted robbery,
and did nothing to stop the possession and use of the shotgun by
his accomplice.”
DISCUSSION
I. Legal Framework of Section 1170.95 and Appellate
Standard of Review
“In 2018, the Legislature enacted Senate Bill No. 1437 . . .
after determining that there was further ‘need for statutory
changes to more equitably sentence offenders in accordance with
their involvement in homicides.’ [Citation.]” (People v. Gentile,
supra, 10 Cal.5th at pp. 838–839.) Senate Bill No. 1437
“amend[ed] the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
The legislation “also added section 1170.95 . . . , which creates a
procedure for convicted murderers who could not be convicted
under the law as amended to retroactively seek relief.” (People v.
Lewis (2021) 11 Cal.5th 952, 957, fn. omitted.)
The court applies a two-stage process in deciding a petition
for resentencing under section 1170.95. First, the court must
determine whether the petitioner has made a prima facie
showing for relief. (§ 1170.95, subd. (c).) If so, it must issue an
order to show cause and hold a final eligibility hearing. (People v.
Lewis, supra, 11 Cal.5th at p. 960.) At that hearing, the parties

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may rely on the record of conviction or offer new or additional
evidence. (Ibid., citing § 1170.95, subd. (d)(3).) “ ‘[T]he burden of
proof [is] on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing.’ ” (Lewis, supra,
at p. 960, quoting § 1170.95, subd. (d)(3).)5
We review the trial court’s factual findings for substantial
evidence. (See People v. Bascomb (2020) 55 Cal.App.5th 1077,
1087.) We are guided by the principle that, under the substantial
evidence standard, “[o]ur function on appeal is not to reweigh or
reinterpret the evidence but simply to determine whether there is
sufficient evidence in the record to warrant the inference . . .
drawn by the trier of fact.” (People v. Perry (1972) 7 Cal.3d 756,
785, fn. omitted.)
II. Substantial Evidence Supports the Findings that
Davis Was a Major Participant Who Acted with
Reckless Indifference to Human Life
A section 1170.95 petitioner is not eligible for resentencing
relief if he was the actual killer, acted with the intent to kill, or
was a major participant in the underlying felony who acted with
reckless indifference to human life. (See §§ 189, subd. (e)(3)
[citing § 190.2, subd. (d)], 1170.95, subd. (a)(3).) The trial court
denied Davis’s petition on the basis that he was a major
participant that acted with reckless indifference to human life.

5 Amendments to section 1170.95, subdivision (d)(3) clarify
that “[a] finding that there is substantial evidence to support a
conviction for murder . . . is insufficient to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing.” (Sen. Bill No. 775 (2021–2022 Reg. Sess.), ch. 551,
§ 2.)

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No evidence was presented at the trial or resentencing hearing
that Davis was the actual killer or that he acted with the intent
to kill.
A. Major Participant
Davis concedes that he was a major participant in the
crimes that led to Cohen’s death. However, as our high court has
clarified that the factors relevant to determining whether a
defendant was a major participant may also be relevant to the
reckless indifference analysis because the “ ‘requirements
significantly overlap’ ” (People v. Clark (2016) 63 Cal.4th 522,
614–615 (Clark)), we summarize them here.
In Banks, our high court explained that, in determining
whether a defendant was a major participant in an underlying
felony, the finder of fact must consider the totality of the
circumstances, including: “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.) “ ‘ “[N]o one of these
considerations is necessary, nor is any one of them necessarily
sufficient.” ’ [Citation.]” (In re Scoggins (2020) 9 Cal.5th 667,
677; accord, Banks, supra, at p. 803.)
Noting that “ ‘a garden-variety armed robbery’ ”—i.e., a
robbery committed using a gun (Clark, supra, 63 Cal.4th at

9
p. 617, fn. 74)—does not, alone, demonstrate reckless indifference
(Banks, supra, 61 Cal.4th at p. 805), the Supreme Court
concluded there was insufficient evidence to show the Banks
defendant acted with the requisite mental state (id. at p. 807).
Although there was evidence that he knew he was participating
in the armed robbery of a marijuana dispensary, there was no
evidence that he was aware his actions would involve a grave risk
of death. (Id. at p. 807.) He dropped off his three accomplices
near the dispensary, remained in the car away from the scene,
and acted as the getaway driver when he received a signal from
the others as they fled. (Id. at pp. 804–805.) The killing that
took place was not planned; rather, it occurred spontaneously
when the victim security guard presented unexpected armed
resistance to the robbery. (Id. at p. 807.) Further, there was no
evidence any of the perpetrators previously participated in
shootings, murders, attempted murders or any other violent
crime. (Id. at pp. 805, 810–811.)
B. Reckless Indifference to Human Life
In Clark, our high court enumerated certain factors
relevant to the inquiry of whether a defendant acted with
reckless indifference: the defendant’s knowledge of weapons, and
the use and number of weapons; the defendant’s proximity to the
crime and opportunity to stop the killing or aid the victim; the
duration of the offense conduct, that is, whether a murder came
at the end of a prolonged period of restraint of the victims by
defendant; the defendant’s awareness his or her confederate was
likely to kill; and the defendant’s efforts to minimize the
possibility of violence during the crime. (Clark, supra, 63 Cal.4th
at pp. 618–623.) Unsurprisingly, “ ‘[t]hese requirements
significantly overlap [with those relevant to the major participant

10
determination] . . . for the greater the defendant’s participation in
the felony murder, the more likely that he acted with reckless
indifference to human life.’ [Citation.]” (Id. at p. 615.)
Clark involved the attempted robbery of an Orange County
computer store, during which the appealing defendant’s
accomplice shot and killed the mother of a store employee who
arrived at the store to pick up her son. (Clark, supra, 63 Cal.4th
at pp. 536–537.) The appellant “was the mastermind who
planned and organized the attempted robbery and who was
orchestrating the events at the scene of the crime.” (Id. at
p. 612.) However, at the time of the shooting, he was not at the
store. (Id. at p. 619.) He drove to the scene shortly after the
shooting and fled when he saw the victim on the ground, the
police approaching, and his accomplice fleeing. (Id. at p. 620.)
In concluding there was insufficient evidence to support an
inference the appellant was recklessly indifferent to human life,
the court described aspects of the attempted robbery which shed
light on the objective and subjective components of the analysis.
Among other things, it explained: (1) the appellant planned the
robbery, but attempted to minimize violence by planning it for
after the store closed and incorporating use of an unloaded gun;
(2) the appellant did not have a gun and did not direct his
accomplices to kill; (3) he was not at the scene when the
unplanned killing occurred, and there was no evidence he had an
opportunity to act as a restraining influence; (4) although the
planned duration of the robbery was substantial, it was
scheduled to take place when not many people would be present,
and anyone present was to be locked in a room away from the
activity; and (5) there was no evidence the shooter had a

11
propensity for violence. (Clark, supra, 63 Cal.4th at pp. 618–
622.)
C. Application
Applying the Banks and Clark factors, and deferring to the
trial court’s credibility evaluations, we find the trial court’s
conclusion concerning Davis’s reckless indifference to human life
is supported by substantial evidence.
A key factor distinguishes Davis from the defendants in
Banks and Clark, where courts found insufficient evidence to
support a special circumstance finding. Unlike those defendants,
Davis was present for the shooting. (Cf. Clark, supra, 63 Cal.4th
at p. 614; Banks, supra, 61 Cal.4th at p. 805.) We do not mean to
imply that this single factor is dispositive in all cases, but note
that it has been recognized that usually “[t]he defendants who
have been able to get their special circumstance findings vacated
under Banks and Clark are those who were not wielding guns
themselves and also not present for the shooting.” (People v. Law
(2020) 48 Cal.App.5th 811, 825, italics added, review granted
July 8, 2020, S262490.) A defendant is less likely to have acted
with reckless indifference to human life if “he was not ‘close
enough to exercise a restraining effect on the crime or’ ” his
accomplice. (In re Moore (2021) 68 Cal.App.5th 434, 452, quoting
In re Ramirez (2019) 32 Cal.App.5th 384, 405.) Here, Davis was
standing directly next to his accomplice when he put the barrel of
the shotgun inside the car.6

6 Davis’s proximity to his accomplice is also one of several
circumstances that distinguish this case from People v. Ramirez
(2021) 71 Cal.App.5th 970. Davis relies on Ramirez to argue that
the fact that he was unarmed is significant, even if he was aware
that his confederate was armed. The court in Ramirez concluded

12
 The evidence does not show that Davis took meaningful
steps to minimize the risk of violence during the robbery. Davis
planned to rob a drug buyer, someone more likely to be armed
than, for example, the employees of the computer store in Clark.
(See generally Ybarra v. Illinois (1979) 444 U.S. 85, 106 (dis. opn.
of Rehnquist, J.) [recognizing heightened risk that individuals
present in bar where drugs were offered for sale may be armed].)
In fact, according to Davis’s testimony, Cohen told him he had a
gun in his trunk before they left the gas station. Armed
resistance was more than a hypothetical possibility. One could
infer that Davis’s anticipation of resistance with lethal force led
him to recruit an armed accomplice and to direct Cohen and
McDonald to a dark parking lot where they were less likely to be
seen by others, thus minimizing the risk of interference.
Moreover, the finder of fact could fairly conclude that Davis
had the opportunity to prevent the shooting or to restrain his
accomplice yet chose not to act. As noted, Davis was standing
next to his accomplice and said only, “That’s not necessary,” but
made no attempt to remove the shotgun or divert the direction of
the barrel. Additionally, Davis concedes that it can be inferred
from the evidence that he did not render aid to the victim and
instead left the scene of the shooting. Although he contends that

that substantial evidence did not support the finding that the 15-
year-old defendant acted with a reckless indifference to human
life where he was unarmed, did not supply the murder weapon,
did not instigate or plan the attempted carjacking, and was on
the opposite side of the car from his accomplice and thus unable
to restrain him when he began to shoot. (Id. at pp. 988–989.)
Here, in contrast, Davis arranged the robbery and was close
enough to exercise a restraining effect on his accomplice.

13
the significance of this fact is minimized because the crime was
committed in a public parking lot in a residential neighborhood,
where people were available to render aid, the trial court had
sufficient grounds to disagree with this conclusion. Davis and his
accomplice instructed Cohen to pull all the way into a “completely
dark” parking lot with “no lights whatsoever.” Had McDonald
been unable to steer the car into the street, where he attracted
attention by driving in circles and repeatedly hitting curbs and
trash cans, it is unclear what would have happened and whether
any assistance would have been forthcoming.
Davis correctly notes that several of the Banks and Clark
factors are in his favor. For example, Davis was himself
unarmed (see Clark, supra, 63 Cal.4th at p. 618; Banks, supra, 61
Cal.4th at p. 803), and there was no evidence that Davis knew of
any history indicating his accomplice was likely to kill (see Clark,
supra, at p. 621; see also Banks, supra, at p. 803). Although
Davis interacted with Cohen from the meeting at the gas station
until the shooting, Cohen was held at gunpoint only briefly (see
Clark, supra, at pp. 620–621). However, as the Supreme Court
cautioned in both Banks and Clark, “[n]o one of these
considerations is necessary, nor is any one of them necessarily
sufficient.” (Banks, supra, at p. 803; see Clark, supra, at p. 618.)
Davis also emphasizes his lack of control over his
accomplice and contends that the shooting was sudden and
unexpected. He cites In re Scoggins, supra, 9 Cal.5th 667 as
support for the proposition that a defendant who “ ‘lacked control
over’ ” the actions of his confederates and never instructed them
to kill the victim is “less culpable.” However, the defendant in
Scoggins “was not physically present at the crime scene and was
not in a position to restrain [his confederate] once the meeting

14
with [the victim] began,” but was instead “at a nearby gas station
during the course of the crime and did not arrive at the crime
scene until after the shooting occurred.” (Id. at p. 678.) It was
unclear from the evidence whether the defendant in Scoggins
could even see the crime take place. (Ibid.) Moreover, the
defendant had not planned for guns to be used during the
robbery, and there was no evidence that he knew that a
confederate would use a gun. (Id. at p. 677.) Here, one can infer
that Davis asked his accomplice to bring a weapon, or at the very
least, was aware was that he was returning to Cohen’s car with a
shotgun. We cannot agree that the shooting was “not the
culmination of a series of acts,” as Davis contends. Rather, the
evidence supports the finding that Davis led a drug buyer, who
claimed he had a gun in his trunk, first to an apartment building
where the buyer waited for Davis to return for five to eight
minutes, then to a lighted parking lot, and finally to a very dark
parking lot, and that Davis involved an armed accomplice to
assist him in an attempted robbery.
Relying on In re Moore, supra, 68 Cal.App.5th 434, Davis
also argues that his youth at the time of the crime is a mitigating
factor. The defendant in Moore was 16 years old at the time of
the offense. The reasoning in Moore was premised on the
historical assumption in the law that “ ‘children characteristically
lack the capacity to exercise mature judgment and possess only
an incomplete ability to understand the world around them.’ ”
(Id. at p. 453.) In contrast, Davis was not a child. He was 25
years old at the time of the robbery in question. In support of his
assertion that his age should nevertheless remain a mitigating
factor, Davis cites to section 3051, which provides that a
defendant serving a term of 25 years to life who was 25 years or

15
younger at the time the controlling offense was committed
becomes eligible for parole at a youth offender parole hearing
after having served 25 years. (§ 3051, subds. (a), (b)(3).)
However, Davis cites no case that supports extending the
assumptions about a child’s maturity and judgment for persons
beyond the age of 18—“ ‘the point where society draws the line for
many purposes between childhood and adulthood’ ” (Graham v.
Florida (2010) 560 U.S. 48, 74)— for purposes of determining
whether a defendant acted with reckless indifference to human
life. Davis also fails to cite to any evidence to show that he was
unusually immature emotionally or intellectually for a 25-year-
old. Thus, we cannot say that being 25 years old meaningfully
undermined his ability to appreciate “that his actions created a
graver risk of death than any other armed robbery” (Moore,
supra, 68 Cal.App.5th at p. 454, fn. omitted).
Considering the relevant factors together, we conclude that
substantial evidence supports the finding that Davis was a major
participant in the crimes that led to Cohen’s death and acted
with reckless indifference to human life.

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 DISPOSITION
We affirm the trial court’s order denying Davis’s petition
for resentencing under section 1170.95.
NOT TO BE PUBLISHED

MORI, J.*

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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