People v. Stevens CA2/5

Filed 8/24/22 P. v. Stevens CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B309444

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A902629)
v.

FRANK STEVENS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of the County
of Los Angeles, Nicole C. Bershon, Judge. Affirmed.
Patricia S. Lai, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
 I. INTRODUCTION

Following a hearing conducted pursuant to Penal Code
section 1172.6, subdivision (d) (former section 1170.95),1 the trial
court denied defendant Frank Stevens’s resentencing petition
based on a factual summary from an appellate opinion.2 On
appeal, defendant contends that the court erred in relying solely
on the appellate opinion and that there was insufficient evidence
to support the court’s findings. Because any error in relying on
the opinion was harmless, we affirm.

II. FACTUAL BACKGROUND3

Cafeteria owner Ronald Ross customarily carried large
amounts of cash from home to work on Fridays. He also
regularly picked up his employee, George Chapman, on his way
to work at 4:45 a.m. near the intersection of 90th Street and

1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10). All further statutory references are to the Penal
Code unless otherwise stated.

2 The trial court relied on the factual statement from the
unpublished opinion in the direct appeal from defendant’s
judgment of conviction, People v. Stevens (Feb. 4, 1985, B004310)
[nonpub. opn.] (the appellate opinion).

3 As we discuss below, the parties do not dispute that the
facts as recited in the appellate opinion accurately reflect the
facts in the trial record from that appeal. The factual
background therefore is taken from that opinion and our review
of the trial record, of which we take judicial notice.

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Vermont Avenue. Eric Tripp—a disgruntled former employee of
the cafeteria and the half-brother of victim Chapman—was
aware of these habits.
About a week before the murder, defendant met with Kevin
Douchette, who asked defendant if he wanted to make some
“‘money moves,’” which defendant understood to mean “[p]ullin’ a
robbery or somethin’.” Defendant responded that he did; and he
and Douchette later met with Tripp who explained how they
could rob the victims the next morning of a large amount of cash.
Tripp also cautioned that victim Ross may have shotguns in his
truck, but assured defendant and Douchette that he would be
scared and give up the money. And, Tripp told them that his
half-brother had “snitched on him” and therefore if defendant and
Douchette had to “beat his brother up” or “[they] c[a]me to a point
where his brother started to be a hero . . . [Tripp didn’t] care what
[they did] with his brother.” Defendant, who had carjacked a
vehicle from its owner the night before, agreed to drive,
accompanied by Douchette who would be armed with a handgun.
The next morning, defendant drove Douchette to the
intersection of 90th and Vermont where they waited for victim
Ross to arrive for the 4:45 a.m. pick up. They saw victim
Chapman standing on the sidewalk as victim Ross’s truck
stopped to pick him up. At that point, defendant maneuvered the
stolen car in front of the truck, blocking its path forward, and
Douchette got out with the handgun and demanded money.
Victim Ross attempted to escape by reversing his truck, but it
stalled, and Douchette fired four or five rounds into the cab,
wounding victim Ross and killing victim Chapman. On
Douchette’s renewed demand, victim Ross gave him $6,500, as
defendant backed up the stolen car to be parallel with the truck.

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Defendant directed Douchette to take victim Ross’s shotgun. The
men then fled the scene with the money and shotgun and later
split the robbery proceeds. (People v. Stevens, supra, B004310.)

III. PROCEDURAL BACKGROUND

Following a bench trial, the trial court found defendant
guilty on count 1 of the first degree murder; on count 3 of
robbery; and on count 4 of the robbery of the owner of the stolen
car. But the court found untrue the special circumstances
allegation that the murder was committed in the course of a
robbery under section 190.2, subdivision (a)(17), as the court was
not persuaded that defendant acted with the intent to kill. The
court sentenced defendant to an aggregate term of 30 years to
life, comprised of an upper term five-year sentence for robbery
and a consecutive term of 25 years to life for the murder.
Defendant appealed from the judgment of conviction,
arguing that his confession should have been suppressed as
involuntary and that his prison sentence was constitutionally
excessive. On February 4, 1985, the Court of Appeal filed the
appellate opinion in which it rejected both contentions and
affirmed the judgment.
On December 23, 2019, defendant filed a petition for
resentencing under section 1172.6 (former section 1170.95),
arguing that (1) he was not the actual killer; (2) he did not, with
the intent to kill, aid and abet the actual killer; and (3) he was
not a major participant in the felony and did not act with reckless
indifference to human life during the felony.
On May 15, 2020, the prosecution filed a response to the
petition that attached a copy of the appellate opinion. Neither

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the prosecution nor the defendant appear to have submitted the
underlying trial record. Citing to facts that were “derived
directly from the appellate opinion affirming [defendant’s]
conviction,” the prosecution argued that defendant was not
entitled to relief because he was a major participant in the
robbery and he acted with reckless indifference to human life
during the commission of that crime.
On June 12, 2020, defendant filed a reply, arguing that the
issue of whether defendant was a major participant who acted
with reckless indifference for human life had not been
adjudicated in defendant’s trial and that it “would thwart the
intent of . . . [former] section 1170.95” to make those findings
based on “five paragraphs of factual summation from the
[appellate opinion]” and without allowing the parties “to argue
over the state of the evidence . . . .” The reply included two
citations to a reporter’s transcript, presumably of defendant’s
bench trial.
On September 14, 2020, the trial court held an initial
hearing on the petition. The court noted that it had a copy of the
appellate opinion and inquired whether it would be receiving “a
record or disk or anything in this case?” The prosecutor
responded, “If the court would like one I could provide [one to] the
court. . . . I have the Attorney General file. If the court is asking
for it and it’s okay with [defense counsel] I can provide the court
a copy of it, the record, the [Attorney General] file.” Later in the
hearing, the court confirmed that it did not “have [the] record
other than the appellate decision.” Following argument, the
court issued an order to show cause and set the matter for an
evidentiary hearing.

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 Prior to the November 13, 2020, hearing, neither side filed
any further submissions in support of or opposition to the
petition. At the hearing, the trial court and parties agreed that
the issue for the court to determine was whether defendant was a
major participant in the target robbery who acted with reckless
disregard for human life. During the initial arguments of the
parties, defendant’s counsel referenced the trial record, stating
that he did not “believe, based upon the [trial record] that we
have, that the People can prove beyond a reasonable doubt that
[defendant] acted with a reckless indifference to human life.”
The trial court then observed, “I think in this particular
case what is most telling is actually the language of the
[appellate] opinion. Even though [the appellate court] didn’t look
at reckless indifference and interpret it in a way using the
criteria that we are using now, [it] certainly . . . gave me much
guidance in . . . coming to this conclusion . . . .” Citing to portions
of the opinion that analyzed defendant’s participation in the
planning and execution of the robbery, the court explained, “I
think the Court of Appeal in this case [was] very clear. [It did
not] see [defendant] as solely a getaway driver; [it saw] him as
something much more. . . . He wasn’t only . . . actively involved
in the planning of the crime as the Court of Appeal said. He was
there when it happened. He blocked the [victims’] car in. He was
in a position to aid the victims if he wanted to, which he didn’t,
and he said, get the shotgun.”
Then, in response to the trial court’s invitation to “have the
last word . . . ,” defendant’s counsel stated, “I concede the
[appellate] opinion is part of the record, but I don’t believe that it
should form the bulk of the evidence that this court should rely
upon for the simple reason that any appellate opinion is the

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product of an analysis which is reviewed in the light most
favorable to the verdict and that everything that the Court of
Appeal crafted was done in a way to be very deferential to [the
trial court’s decision]. Therefore, I believe the [appellate] opinion
should be viewed with caution as it’s essentially a pro-verdict
analysis. [¶] Having issued the order to show cause, the court
should hold [the prosecutor] to the burden of proving beyond a
reasonable doubt that [defendant] is ineligible for [resentencing],
and I don’t believe he’s done that.”
The prosecutor responded by asserting that the appellate
opinion was part of the record and could be relied upon by the
trial court. The court then explained, “The reason I cite the
[appellate] opinion, I don’t see it as evidence. It’s [the appellate
court’s] interpretation of the record of conviction. My point is, if
[the court] found that in the record of conviction, [it was] the
most familiar, . . . [it was] doing [its] job right, and we’re going to
assume that [it did]. [The appellate court] can only rely on
what’s in the record. So . . . that was that point.” [¶] . . . [¶] So
the fact that the Court of Appeal found that there was enough
evidence in the record to support the conviction . . . I think
supports the position that there’s sufficient evidence beyond a
reasonable doubt that [defendant] could have been convicted [of
felony murder under the Senate Bill No. 1437 (SB 1437)
amendments to sections 188 and 189].” The court therefore
denied the petition.

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 IV. DISCUSSION

Defendant contends that the Senate Bill No. 775 (SB 775)
amendments to section 1172.6 apply retroactively4 and precluded
the consideration of facts recited in the appellate opinion in
determining whether defendant was eligible for resentencing.
According to defendant, because the trial court relied exclusively
on the facts stated in that opinion, without independently
reviewing the testimony from the trial record of the convictions,5
its denial of defendant’s petition must be reversed and remanded
for a new evidentiary hearing in compliance with amended
section 1172.6, subdivision (d)(3).

A. SB 775

October 5, 2021, the Governor signed SB 775, which
became effective January 1, 2022, and amended certain portions
of section 1172.6. (Sen. Bill No. 775 (2020–2021 Reg. Sess.)

4 The Attorney General concedes that retroactivity is not an
issue on appeal.

5 The Attorney General contends that the trial record of
defendant’s underlying conviction was before the trial court at
the order to show cause hearing and therefore moves to augment
the record on appeal with portions of it. Defendant disputes that
the trial record was submitted to or considered by the court at the
hearing and therefore opposes the motion. We need not resolve
the dispute because, on our own motion, we have taken judicial
notice of the record in defendant’s initial appeal, which was
submitted by the Attorney General. The motion to augment is
therefore denied as moot.

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Section 1 of SB 775 sets forth the nature and purpose of the
amendments as follows: “SECTION 1. [¶] The Legislature finds
and declares that this legislation does all of the following:
“(a) Clarifies that persons who were convicted of attempted
murder or manslaughter under a theory of felony murder and the
natural probable consequences doctrine are permitted the same
relief as those persons convicted of murder under the same
theories.
“(b) Codifies the holdings of [People v. Lewis] (2021) 11
Cal.5th 952, 961–970 [(Lewis)], regarding petitioners’ right to
counsel and the standard for determining the existence of a
prima facie case.
“(c) Reaffirms that the proper burden of proof at a
resentencing hearing under this section is proof beyond a
reasonable doubt.
“(d) Addresses what evidence a court may consider at a
resentencing hearing (clarifying the discussion in [Lewis, supra],
[11 Cal.5th] at pp. 970–972).” (Stats. 2021, ch. 551, § 1.)
Pursuant to the amendments to section 1172.6 concerning
the evidence a court may consider at a resentencing hearing,
subdivision (d)(3) now provides: “At the hearing to determine
whether the petitioner is entitled to relief, the burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019. The admission of evidence in the
hearing shall be governed by the Evidence Code, except that the
court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including
witness testimony, stipulated evidence, and matters judicially

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noticed. The court may also consider the procedural history of
the case recited in any prior appellate opinion. However, hearsay
evidence that was admitted in a preliminary hearing pursuant to
subdivision (b) of [s]ection 872 shall be excluded from the hearing
as hearsay, unless the evidence is admissible pursuant to another
exception to the hearsay rule. The prosecutor and the petitioner
may also offer new or additional evidence to meet their respective
burdens. 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.”

B. Harmless Error

The Attorney General argues that, even assuming the trial
court erred in relying on the facts recited in the appellate opinion
rather than the underlying trial record, any such error is
harmless under People v. Watson (1956) 46 Cal.2d 818, 836.
According to the Attorney General, because “the [appellate]
opinion did not describe the trial testimony in an inaccurate
manner,” “it is not reasonably probable that the court would have
granted the petition but for the admission of [the facts from the
appellate opinion].”
Defendant does not dispute that the appellate recitation of
facts is accurate; he instead complains that such opinions
“generally begin with a statement of facts in the light most

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favorable to the prosecution.” And, he maintains that the
claimed error was not harmless because without the submission
of the trial transcripts, there was no evidence for the trial court to
consider. We agree with the Attorney General.
Where, as here, (1) there is no dispute that the facts
described in the appellate opinion accurately reflect the evidence
at trial; (2) there is no contention that the transcript of the trial
testimony would be inadmissible under current law; and
(3) neither party introduces new evidence at the section 1172.6,
subdivision (d) hearing, we conclude that the trial court’s
assumed error in relying on the appellate opinion rather than the
underlying trial record was harmless—that is, there is no
“‘reasonable probability that in the absence of the error
[defendant] would have obtained a more favorable result.’”
(Lewis, supra, 11 Cal.5th at p. 974.)
Moreover, here, we have conducted our own review of the
trial evidence and, as discussed below, conclude there was
sufficient evidence to demonstrate, beyond a reasonable doubt,
that defendant was not entitled to resentencing. Therefore, it is
not reasonably probable that defendant would have obtained a
more favorable result had the court independently reviewed the
trial record.

C. Evidence of Banks/Clark Factors6

We next consider defendant’s argument that there was
insufficient evidence to demonstrate that he was a major
participant who acted with reckless indifference to life.

6 People v. Banks (2015) 61 Cal.4th 788 (Banks); People v.
Clark (2016) 63 Cal.4th 522 (Clark).

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 1. Major Participant

In determining whether the defendant was a major
participant in the underlying felony, “the ultimate question [is]
whether the defendant’s participation ‘in criminal activities
known to carry a grave risk of death’ [citation] was sufficiently
significant to be considered ‘major’ [citations].” (Banks, supra, 61
Cal.4th at p. 803.) Among the relevant factors are the following:
“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?” (Ibid., fn. omitted.)
The trial evidence supports the trial court’s finding that
defendant was a major participant in the robbery. Defendant
accepted Douchette’s offer to make some money and then met
with Tripp, who explained in detail how the robbery could be
successfully executed. Because defendant had access to the car
he had stolen, he volunteered to drive Douchette to the crime
scene and to be the getaway driver knowing that throughout
Douchette would be armed.
Although defendant did not supply the weapon that would
be used in the robbery, he was aware that Douchette would be
armed with a handgun and tacitly agreed to its use in carrying
out the robbery.

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 Given his awareness that Douchette would use the
handgun, that victim Ross should be frightened by it, and that
Ross could have a shotgun, defendant knew or should have
known of the dangers posed by the plan. Moreover, Tripp told
defendant and Douchette that victim Chapman was a “snitch[],”
cautioned that he could try to “be a hero,” and implicitly
acknowledged the risk that he could be murdered, saying that he
“[didn’t] care what [they did] with him.” Thus, even if defendant
did not have specific knowledge of Douchette’s propensity for
violence, the known circumstances of the planned crime put him
on notice that it was a potentially deadly enterprise.
Moreover, defendant was present at the scene of the
robbery, having driven Douchette to 90th and Vermont. He
blocked the victims’ most effective means of escape and made it
possible for Douchette to exit the stolen car, approach victim
Ross’s truck, and demand the money at gunpoint.

2. Reckless Indifference

In determining whether the defendant exhibited “‘“‘reckless
indifference to human life’”’. . . we consider the specific facts of
[the] case in light of some of the case-specific factors that this
court and other state appellate courts have considered in
upholding a determination of reckless indifference to human life
in cases involving nonshooter aiders and abettors to commercial
armed robbery felony murders. . . . ‘[N]o one of these
considerations is necessary, nor is any one of them necessarily
sufficient.’ (Banks, supra, 61 Cal.4th at p. 803.)” (Clark, supra,
63 Cal.4th at p. 618.) These factors include: (1) knowledge, use,
and number of weapons; (2) physical presence at the crime and

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opportunity to aid the victim; (3) the duration of the felony;
(4) the defendant’s knowledge of the likelihood of killing; and
(5) the defendant’s efforts to minimize the risk of violence during
the felony. (Id. at pp. 618–622.)
The trial evidence supports the trial court’s finding that
defendant acted with reckless indifference to human life. As we
discuss above, defendant knew and agreed that Douchette would
be armed with a handgun which he would use to scare victim
Ross into giving up the money. Tripp told defendant and
Douchette that victim Chapman was a snitch and that Tripp did
not care what happened to him if he tried to be “a hero.”
Defendant was present at the scene. And, after the shooting,
defendant did not attempt to render aid to the victims or call for
emergency personnel. Instead, he backed his car up to a position
parallel to the victims’ truck and directed Douchette to take
victim Ross’s shotgun. He then fled the scene with Douchette,
without regard for the circumstances in which he was leaving the
victims. Once safely away from the scene, he paused to divide up
the proceeds of the robbery, but again, made no effort to assist
the victims.
While the duration of the crime was not long, during its
commission defendant used his car to block the truck’s primary
escape route, making the victims vulnerable to Douchette’s
armed assault, and he then paused before fleeing to make sure
that Douchette also stole the shotgun. Finally, there is nothing
in the appellate opinion or trial record to suggest that defendant
was specifically aware of Douchette’s propensity for violence, but
he was well aware that Douchette would be armed with a
handgun to use in the robbery and, through Tripp, that victim
Chapman could attempt to disrupt the robbery and be injured in

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the process. Yet he took no steps to minimize the risk that either
of the victims could be hurt, agreeing instead to participate in the
robbery as suggested by Tripp and planned by him and
Douchette.
Finally, we disagree with defendant’s contention that
defendant’s age—he was 21 at the time of his crime—prevented
him from appreciating the consequences of his planned actions
and therefore established that he was not a major participant
who acted with reckless indifference to human life. Defendant
does not cite to any facts in the record that demonstrate he was
too young to appreciate the grave risk to life posed by the robbery
plan to which he agreed and in which he willingly participated.
And, the probation report in the record suggests otherwise.
According to that report, he committed his first offense when he
was 14 and then proceeded to commit several other felonies—
including two assaults with deadly weapons—prior to agreeing to
a plan which he knew involved the use of a deadly weapon and
during which he maneuvered his car to prevent the victim from
escaping and directed the shooter to take a shotgun before
escaping from the scene.

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 V. DISPOSITION

The order denying the section 1172.6 petition for
resentencing is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.

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