Filed 11/14/22 P. v. Frye CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B313885
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A044084)
v.
ROBERT DENNIS FRYE,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, James D. Otto, Judge. Affirmed.
David Y. Stanley, 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, Blythe J. Leszkay and Colleen M.
Tiedemann, Deputy Attorneys General, for Plaintiff and
Respondent.
________________________
Robert Dennis Frye, convicted in 1989 of first degree
murder, appeals the denial of his petition for resentencing
pursuant to Penal Code section 1172.6 (former section 1170.95)1
after the superior court found, beyond a reasonable doubt, that
Frye could still be convicted of felony murder under amended
section 189, subdivision (e)(3), as a major participant in the
underlying robbery who had acted with reckless indifference to
human life. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Robbery and Shooting
At approximately 11:00 p.m. on June 10, 1989, Duncan
Anderson, an employee of a national pharmacy chain, was shot
and killed during a robbery while Anderson and two of his fellow
employees were depositing the local pharmacy’s daily receipts at
a local bank. The evidence at trial, which included Frye’s
description of his involvement in the crimes to his friend Frank
Forman and Forman’s brother Robert, established that Frye gave
a loaded handgun to Danny Pluckett and drove Pluckett on his
motorcycle to a bank in Long Beach. Frye then rode to the
nearby pharmacy and waited until he saw Anderson and two
other employees leave with the day’s receipts. Frye returned to
the bank and told Pluckett the employees were coming. Frye
then drove around the corner and waited.
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6 with no substantive change in text.
(Stats. 2022, ch. 58, § 10.)
All further statutory references are to the Penal Code.
2
At the bank Pluckett robbed one of the employees of the
money she was carrying. Anderson pursued Pluckett, attempting
to apprehend him. Pluckett shot Anderson. Frye, who could not
see what was happening outside the bank, heard two or three
sounds he described to Robert Forman as sounding like fire
crackers. Pluckett then ran up to Frye where he was waiting,
and the two men fled the scene on Frye’s motorcycle.
Frank Forman, who described Pluckett as his best friend,
acknowledged that he had worked at the specific pharmacy that
was the target of the robbery and conceded on cross-examination
that he and Pluckett had discussed how the store’s employees
carrying receipts for deposit could be robbed.
Frye was charged in an information filed October 10, 1989
with a single count of murder (§ 187, subd. (a)) with the further
allegation that during the commission of the offense a principal
was armed with a firearm (§ 12022, subd. (a)). At trial Frye’s
jury was instructed, as pertinent to the pending appeal, with
CALJIC Nos. 3.01, regarding aiding and abetting liability; 8.10,
defining murder;2 8.21, defining first degree felony murder based
on a robbery; and 8.27, explaining first degree felony murder as
2 As modified by the court, CALJIC No. 8.10 stated,
“Defendant is accused in the information of having committed the
crime of murder, a violation of Penal Code Section 187. [¶] Every
person who unlawfully kills a human being during the
commission or attempted commission of robbery is guilty of the
crime of murder in violation of Section 187 of the Penal Code. [¶]
In order to prove such crime, each of the following elements must
be proved: [¶] 1. A human being was killed. [¶] 2. The killing was
unlawful, and [¶] 3. The killing occurred during the commission
or attempted commission of robbery.”
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applied to an aider and abettor in the underlying robbery. The
jury was not instructed on express malice or premeditation.
The jury found Frye guilty of first degree murder and found
true the firearm enhancement allegation. The court sentenced
Frye to an aggregate indeterminate state prison term of 26 years
to life. We affirmed Frye’s conviction on appeal. (People v. Frye
(Apr 19, 1991, B049144) [nonpub. opn.].)
2. Frye’s Petition for Resentencing
On February 4, 2019 Frye, representing himself, filed a
petition for resentencing pursuant to former section 1170.95 and
requested the court appoint counsel to represent him in the
resentencing proceedings. Frye checked boxes on the printed
form petition to establish his eligibility for resentencing relief,
including the boxes stating he had been convicted under a felony-
murder theory and could not now be convicted of first or second
degree murder because of changes made to sections 188 and 189
by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437). The superior court appointed
counsel to represent Frye and, following briefing by the People
and Frye’s appointed counsel, found Frye had made a prima facie
showing of his entitlement to relief and issued an order to show
cause, setting the matter for an evidentiary hearing.
Frye, who was out of custody on parole, attended the
June 28, 2021 hearing by video conference, waiving his right to
be present in the courtroom. At the outset of the hearing the
court noted the People had submitted with a supplemental brief a
compact disc that included the clerk’s and reporter’s transcripts
from Frye’s trial and this court’s 1991 opinion affirming the
judgment. Both sides submitted on the record of conviction; no
additional evidence was presented.
4
Argument at the hearing focused on whether Frye was
guilty of felony murder under amended section 189,
subdivision (e), as a major participant in the underlying robbery
who had acted with reckless indifference to human life. The
prosecutor emphasized that Frye had participated in the
planning of the robbery and provided the loaded gun to Pluckett.
As the crime unfolded, Frye alerted Pluckett when the employees
were leaving for the bank, waited nearby for Pluckett to commit
the robbery and then acted as the getaway driver despite hearing
gunshots. For his part, Frye’s counsel conceded Frye had helped
plan the robbery and provided the firearm, but argued there was
no evidence Frye knew Pluckett had a history of violent behavior
or that the gun would be used other than to scare the victims. He
also asserted Frye was waiting on his motorcycle a substantial
distance from the shooting (40 yards) and there was no evidence
Frye knew there was a victim he could have helped rather than
flee the scene.
After taking the matter under submission, the superior
court issued a written order denying Frye’s petition, finding the
People had proved beyond a reasonable doubt that Frye was both
a major participate and had acted with reckless disregard for
human life.3 The court analyzed the evidence as it related to
each of the six factors identified by the Supreme Court in People
v. Banks (2015) 61 Cal.4th 788 (Banks) for assessing whether a
defendant had been a major participant in the underlying felony
and the five factors identified in People v. Clark (2016) 63 Cal.4th
522 (Clark) for evaluating whether the defendant had acted with
reckless indifference, emphasizing in particular that Frye had
3 The court found the People had not proved their alternate
theory that Frye acted as an aider and abettor with intent to kill.
5
planned the robbery, acted as the coordinator and provided the
loaded firearm to his codefendant. The court also found “[t]he
circumstantial evidence was that he must have heard the
gunshots but remained to facilitate the getaway,” leaving the
scene immediately without providing any aid to the victim. The
court acknowledged the only evidence of Frye’s awareness that
his codefendant was likely to kill was that he gave the loaded gun
to Pluckett to use to commit the robbery.
Frye filed a timely notice of appeal.
DISCUSSION
1. Section 1172.6 (Former Section 1170.95)
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-
843) and significantly narrowing the felony-murder exception to
the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 707-708;
People v. Lewis (2021) 11 Cal.5th 952, 957.) At the time of Frye’s
trial in 1989, section 189 permitted a conviction for felony murder
by imputing malice to a participant in an inherently dangerous
felony, including robbery, that resulted in a homicide. (People v.
Chun (2009) 45 Cal.4th 1172, 1184; see Strong, at p. 704.) As
amended by Senate Bill 1437, section 188, subdivision (a)(3), now
prohibits imputing malice based solely on an individual’s
participation in a crime and requires proof of malice to convict a
principal of murder except under the revised felony-murder rule
as set forth in section 189, subdivision (e). That provision
requires the People to prove specific facts relating to the
defendant’s individual culpability: The defendant was the actual
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killer (§ 189, subd. (e)(1)); although not the actual killer, the
defendant, with the intent to kill, assisted in the commission of
the murder (§ 189, subd. (e)(2)); or the defendant was a major
participant in an underlying felony listed in section 189,
subdivision (a), and acted with reckless indifference to human
life, “as described in subdivision (d) of Section 190.2,” the felony-
murder special-circumstance provision (§ 189, subd. (e)(3)). (See
Strong, at p. 708.)
Senate Bill 1437 also authorized, through former
section 1170.95, an individual convicted of felony murder or
murder based on the natural and probable consequences doctrine
to petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not now
be convicted of murder because of Senate Bill 1437’s changes to
the definitions of the crime. (See Strong, supra, 13 Cal.5th at
p. 708; People v. Lewis, supra, 11 Cal.5th at p. 957; People v.
Gentile, supra, 10 Cal.5th at p. 843.) As amended by Senate
Bill No. 775 (Stats. 2021, ch. 551, § 2), effective January 1, 2022,
these ameliorative changes to the law now expressly apply to
attempted murder and voluntary manslaughter.
When, as here, a petitioner has carried the burden of
making the requisite prima facie showing he or she falls within
the provisions of section 1172.6 and is entitled to relief, the court
must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts.
(§ 1172.6, subd. (d)(1).) At that hearing the court may consider
evidence “previously admitted at any prior hearing or trial that is
admissible under current law,” including witness testimony.
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(§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may
also offer new or additional evidence. (Ibid.)
As originally enacted former section 1170.95,
subdivision (d)(3), provided, “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 ineligible for resentencing.” Senate Bill
No. 775 amended former section 1170.95, subdivision (d)(3), to
provide, “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. . . . 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.”
The superior court’s decision to deny the petition after an
evidentiary hearing, if the proper standard and burden of proof
were applied, will be affirmed if supported by substantial
evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298;
People v. Ramirez (2021) 71 Cal.App.5th 970, 985 (Ramirez).)
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2. The Banks/Clark Factors
The overlapping factors for assessing whether a defendant
was a major participant in an underlying serious felony and acted
with reckless indifference to human life for purposes of
section 190.2, subdivision (d), and thus for section 189,
subdivision (e)(3), were identified by the Supreme Court in
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522,
and reiterated more recently in In re Scoggins (2020) 9 Cal.5th
667 (Scoggins). (See generally Strong, supra, 13 Cal.5th at
pp. 705-707 [summarizing the substantial clarification of the law
governing findings under section 190.2, subdivision (d), made by
Banks and Clark].) As to whether the defendant was a major
participant in one of the specified felonies, the Banks Court listed
the following factors: “What role did the defendant have in
planning the criminal enterprise that led to one or more deaths?
What role did the defendant have in supplying or using lethal
weapons? What awareness did the defendant have of particular
dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did
the defendant do after lethal force was used?” (Banks, at p. 803,
fn. omitted.)
As to whether a defendant acted with reckless indifference
to human life, the Supreme Court enumerated the following
factors: “Did the defendant use or know that a gun would be used
during the felony? How many weapons were ultimately used?
Was the defendant physically present at the crime? Did he or she
have the opportunity to restrain the crime or aid the victim?
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What was the duration of the interaction between the
perpetrators of the felony and the victims? What was the
defendant’s knowledge of his or her confederate’s propensity for
violence or likelihood of using lethal force? What efforts did the
defendant make to minimize the risks of violence during the
felony?” (Scoggins, supra, 9 Cal.5th at p. 677; accord, Clark,
supra, 63 Cal.4th at pp. 618-622.) “‘“[N]o one of these
considerations is necessary, nor is any one of them necessarily
sufficient.”’” (Scoggins, at p. 677; accord, Banks, supra,
61 Cal.4th at p. 803.)
As the Scoggins Court explained, “Reckless indifference to
human life is ‘implicit in knowingly engaging in criminal
activities known to carry a grave risk of death.’” (Scoggins, supra,
9 Cal.5th at p. 676; accord, Banks, supra, 61 Cal.4th at p. 808
[“[a]wareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient”; reckless
indifference to human life requires “knowingly creating a ‘grave
risk of death’”].) “Reckless indifference ‘encompasses a
willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire that
death as the outcome of his actions.’” (Scoggins, at pp. 676-677,
quoting Clark, supra, 63 Cal.4th at p. 617.)
3. Substantial Evidence Supports the Superior Court’s
Denial of Frye’s Petition
There can be no doubt substantial evidence supported the
superior court’s finding Frye was a major participant in the
robbery of the pharmacy employees, Frye’s argument to the
contrary notwithstanding. As Frye’s counsel conceded at the
section 1172.6, subdivision (d)(3), hearing, the evidence at trial
established that Frye assisted in planning the robbery. In
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addition, on the day of the robbery he was the central figure in
coordinating the attack—transporting Pluckett to the planned
location of the robbery, staking out the pharmacy, notifying
Pluckett when the employees were on their way to the bank and
waiting nearby to act as the getaway driver. In addition, it is
undisputed that Frye provided the loaded handgun used by
Pluckett. Frye argues, although he provided the gun, there is no
evidence he was aware the robbery would involve the lethal use
of force: He argues (without evidentiary support) the gun was
only intended as a threat. But Frye knew the weapon he
provided was loaded and also knew Pluckett would be confronting
three employees without any backup. It is a reasonable inference
Pluckett recognized the gun might be fired to enable Pluckett to
steal the money and make a safe escape, creating a far greater
danger of a life-threatening act by Pluckett than generally
inherent during a robbery. Finally, although Fry was not directly
at the scene and likely could not have prevented the shooting
once the robbery was underway, he was close by. Frye told
Robert Foreman he heard sharp sounds, like a firecracker,
immediately before Pluckett returned and the men fled. Yet Frye
did not inquire what had happened, let alone go to the bank
where Anderson had been shot to render assistance.
This same evidence amply supported the additional finding
that Frye acted with reckless indifference to human life in aiding
Pluckett commit the robbery of the pharmacy employees. He
played a major role in facilitating the robbery after providing the
actual perpetrator with a loaded handgun and knew Pluckett
would be outnumbered when accosting the pharmacy employees
with the gun. Frye made no effort to minimize the risk of
violence during the robbery and then fled with Pluckett after
11
hearing what he reasonably should have recognized as gun shots
without inquiring whether Pluckett had shot any of the robbery
victims. Even though there was no evidence Frye intended that
any of the pharmacy employees be killed, substantial evidence
supported the superior court’s ultimate finding that he was
willing to assist Pluckett in killing to achieve the aim of the
robbery. (See Clark, supra, 63 Cal.4th at p. 617.)
Frye’s reliance on People v. Ramirez, supra, 71 Cal.App.5th
970 and this court’s conclusion substantial evidence did not
support a finding of reckless indifference to human life in that
case is misplaced. In Ramirez we explained the petitioner, who
was 15 years old at the time of the attempted carjacking that
resulted in the shooting death of the driver as he attempted to
flee, “did not provide the murder weapon, instruct his confederate
to shoot, or know of his confederate’s propensity toward violence,
and the shooting occurred quickly without Ramirez having a
meaningful opportunity to intervene.” (Id. at p. 975.) We also
observed it was one of Ramirez’s confederates “who instigated
and planned the carjacking” (id. at p. 988), and there was
evidence Ramirez participated in the crime because he feared he
would be killed by fellow gang members if he did not (id. at
p. 988). Finally, we emphasized Ramirez was a juvenile at the
time of the offense: “A juvenile’s immaturity and failure to
appreciate the risks and consequences of his or her actions bear
directly on the question whether the juvenile is subjectively
‘“aware of and willingly involved in the violent manner in which
the particular offense is committed”’ and has ‘consciously
disregard[ed] “the significant risk of death is or her actions
create.”’” (Id. at p. 991.)
12
In contrast to the petitioner in Ramirez, as discussed, Frye
actively (and willingly) participated in the planning and
coordination of the robbery and provided the loaded handgun for
Pluckett to use during the crime. Although Frye was a young
man in 1989, unlike Ramirez he was not a juvenile. As the
Attorney General argues, although Frye’s youth is properly taken
into consideration, it cannot outweigh all other factors. (See
People v. Mitchell (2022) 81 Cal.App.5th 575, 595 [“We ascribe
meaning to Mitchell’s actions despite his age. Youth can distort
risk calculations. Yet every 18 year old understands bullet
wounds require attention. The fact of youth cannot overwhelm
all other factors”].) Those factors here were more than enough to
support the superior court’s findings.
DISPOSITION
The postjudgment order denying Frye’s petition for
resentencing is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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