Filed 8/1 5/23 P. v. Griffin CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE

,

Plaintiff and Respondent

,

v.

FREDE RIC K GRIFFIN

,

De fe n dant and Appellant

. B 322522

(Los Angeles County Super. Ct. No. VA 003749 )

APPEAL from a judgme nt of the Superior Court of

Los Angeles County, Raul A. Sahagun , Judge

. Affirmed.
Jennifer Peabody and Sydney B an a ch

, u nder
appointm ent by the Court of Appeal, for Defendant and
Appellant.

Rob Bonta , Attorney General, Lance E. Winters, Chief
Assistant Attorney General , Susan Sullivan Pithey, Senior2

Assistant Attorney General, Noah P. Hill and Kathy S.

Pomerantz

, Deputy At torneys Gener al, for Plaintiff and
Respondent.

____________________

______________

_______

Frederick Gr iffin was convicted of 13 counts of

resid ential robbery and one count of first degree felony

murder

. He appeals from the trial court ’ s order denying h is
petition f

or resentencin g under Pen al Code s ect ion 1172.6

. 1
He argues the trial court erred when it determi ned he acted

with reckless indifference to human life without consider ing

he was 19 years old at the time of the murder

. We affirm.

FA CTUAL AND PROCED URAL B A CKGRO U N D

From Octo ber 1 989 to May 1990, appellant Freder i ck

Griffin and several companions committed a series of armed
residential robberies, resulting in the murder of Jay Tryon

. During the rob beries preceding Tryon ’ s murder, the
appellant was iden tifi ed as a perp e trator who : (1) held a gun to the head of victims; (2) t hreatened to kill victims; and (3)
physically assaulted victims, including stepping on the back

of a victim wh o was nine months pr egnant. During th e final
robbery, involvin g victim Tryo n, a nei ghbor witnessed T ryon wrestling with one of the robber s on his porch and the robber

1 Effec tive June 30, 202 2, Pena l Code sec tion 1170.95 was renumbered section 1172.6, with no change in text

. (Sta ts. 20 22, ch. 58, § 10

. ) We hereafter cite to section 1172 .6 for ease of reference. Undesignat ed statutory references are to the Penal Code.3

cal ling out to his companions who all joined in the struggle,
hitting Tryon. After one o f the men yelled “ ‘ blast him

, ’ ” a shot rang out

, and the men f led the scene . Tryon died f r om a
sin g le gunshot wound to the head.
In 1991, a jury convicted appellant of 13 counts of

resid ential robbery and one count of first degree felony

murder

. T he jury furth er found appellant personally used a

fir earm in the co mmi ssion o f e ach off en se. Appellant was
sentenced to state prison for 62 years and four months to

life. This court affirmed the judgment on appeal. ( People v.
Griffin ( Jan 14, 1993, B06239 8 [ nonpub. opn.] .)

In Februar y 2021 , ap pe llant filed a petition for

resenten cing under section 1172.6 (former section 1170.95)

based on various changes in the law regarding felony murder
liability. On June 14, 2022, a ft er an evidentiar y hearing, the

trial cou rt concluded appel lant wa s not enti tl ed to
resentencing

, fi nding the pro secutor had proven beyond a

reason a ble doubt that appellant was a major participant who

acted with reckless indifference to life

. 2

DISCUSSION

A. Section 1172 .6
The Legisla ture en a cted Sena te Bill No. 1437 (2017

- 2018 Reg. Sess.) (SB 1437) “t o amend the f elony murder rule

2 The parties stipulat ed the superior c ourt could rely on the trial

tran scripts in deciding the matter and neit her pa rty submitted any
new evidence.4

and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not
imposed on a person w ho is not the actua l kille r , did not a ct with the intent to kill, or was not a major par ticipant in t he
underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1 015, § 1, subd. (f); accord, §
189, subd. (e) .) SB 1437 also added now section 1172.6,
providing a procedure for defendants whose cases are final to

seek retroac tive relief by petitioning the sentencing court to vacate the conviction and resentence on any remaining
counts. (§ 1172.6, subd. (a).)

B. People v. Jo ne s Does Not Require Remand

I n this ap pe al, appellant does not argue the trial

court ’ s fin dings

– that appellant was a major participant in
the underlying felon ies who acted with reckless indifference

to human life

– are unsupported by substantial evi dence.
Instead, citing Pe ople v. Jones (20 22 ) 86 Cal.App. 5th 1 076
( Jones ) and the de novo stan dard of revie w , appellant argues
the mat ter must be remanded to the trial court because it

“ failed to consider appellant ’ s youth at the time of the

crimes

. ” However, a r e view of P eopl e v . Jo nes sh ow s why

remand is not warranted in this case.

In Jones, defense couns e l argued the defendant “ ‘ was barely 20 years old at the time of [the] crime, ’ ” “ ‘ immature ’ ”

and “ ‘ still developing. ’ ” ( Jones

, supra , 86 Cal.App.5th at p.

1 09 1 .) The t rial court issu ed a detailed explanation of its5

denial of the resentencing motion, but “ did no t mention [the

defenda nt ’ s] age or maturity level. ” ( I bid. )
On appeal, the court observed that “ [i]n the usual case,

the fact tha t a court did not specifi cally men tion certain

evidence does not mean that the c ourt ‘ ignored ’ that

evi d ence. ” ( Jon es, supra, 86 Cal.App.5th at p. 1092

. )
Rather, the court will “ presume the trial court followed the

law in exercising its duties and duly considered the evi dence

pre s ented t o it. ” (

I b id

. ) T he court determined , howe ver, the

“ unusual circumst ances ” of the cas e before it required

remand “ for the court ’ s consideration of all relevant factors
consistent with prevailing law. ” ( Id . at p p . 1079 , 1093

. )

In so co n c luding, th e cou rt point ed out that In re Moore
(2021) 68 Cal.App.5th 434

, w hich “ squ arely ” held a

defendant ’ s youth is one relevant factor in the major
participant/reckless indifference analysis

, was not issued

until months after the trial cou r t ’ s decisi on d enying Jone s ’
resentencing motion. ( Jones, supra, 86 Cal.App.5th at p. 1092.) To the extent a nother case , Peo ple v. Harri s (2021) 60
Cal.App.5th 939 ( Harri s )

, had previo usly indicated youth
was a relevant factor, that opinion was issued “ just a few

w eeks ” before the trial court ’ s rejecti o n of Jones ’

resente nc ing petition and without a ny “ remonstra nce by

defense counsel. ” ( Jones, supra

, at pp. 1091

- 1092.) 3

3 I n Ha rris

, supra , 60 Cal.App.5th 939 , abrogated on other

groun d s in Peop le v. Lewis (2021) 11 Cal. 5th 952, t he court remanded
the ma tter for a resentencing hearing under ( form er ) section 1170.95
because the record of convictio n did not establish as a matter of law

(Fn. is conti nued on the next page.)6

Accordingly, and “ in the interest of justice

, ” the court

remanded the matter for “ the trial co urt to have a

mea ningful opportunity to consider [ Jones ’ ] yo uth .

. .

c onsistent with prevailing la w. ” ( Id. at p. 1093

. )
Here, the “ u nusual circumstances ” identified in Jones

, are not present. That is, appellant ’ s evidentiary hearing
took place on June 14, 2022 , more t han ten months after the

Moore de cisi on, six teen months af ter the Har ris decision

, and after additional opinions

, referenced in Jones , had been

issued on the youth factor

. ( See Jones

, supra , 86
Cal.App.5th at pp. 1091

- 1092; citing People v. R amirez
(2021) 71 Cal.App.5th 970, 990

- 991 [no subst anti al evid ence
defendan t acted with reckles s indifference in light of his

yout h] and In re Harper (2022) 76 Cal.App.5th 450, 467

- 472
( Harper ) [habeas corpus petition denied where defendant ’ s youth, ev en if a factor, d id not cha nge his culpability ].)

In the tria l court

, de fense couns el argued tha t
appellant and his coh orts were “ kids ” and “ young men ” when
they committed the rob b ery that led to Tryon ’ s death.

A ppellant concedes that inform ation regarding h is age was included in the underlying crim inal record admi tted at the

the defen dant was ineligible for resentencing relief. ( Harris

, supra, at pp. 944, 959

- 96 1.) In re manding the matter, the court observed in dictum that given Harris ’ s y outh a t the time of the crime (he was 17 years old) it was “ far from clear ” he was aware of the dangers posed by the nature of the crime. ( Id. at p. 960.)7

evidentiar y hearing. 4 And t he court remarked that in
preparation for the evidentiary hearing, it had “ read all of
the papers ” and ha d “ reviewed the t rial transcrip t. ”
Although the court d id not expr essly discuss appellant ’ s age
in issuing its final ruling on appel lant ’ s petiti on, it was not

requ ired to do so and there is no affir mative indication i t

refused to consider the point

. 5 ( People v. Stowell (2003) 31
Cal.4th 1107, 1114 [ “ [W]here a statement of reasons is not

re quired and the recor d is silent, a reviewing court will

pr esume the trial court had a proper basis for a par ticular
finding or order ” ] ; 6 contrast People v. C hambers ( 1982) 13 6
Cal.App.3d 444, 457 [presumption the court follo ws the law
does not apply where the sentencing l aw is not yet
established].) A cc ordingly, appellant has failed to identify

4 Appellan t point s out the underlying record demonstrates he was 19 years old at the time of the offe ns e

. Respondent adds that the probation r eport, also admitted as part of the u nderlying cri minal record, reflects the murder of Tryon occurred onl y “ 12 da y s prio r to appel lant ’ s twentieth birthday. ”

5 In denying relief, the trial court stated a ppellant no t only

“ created a lot of [the] danger ” in the earlier robberies in which he

p arti cipated b ut that he “ assi st ed in cr eating [] additional dan ger ” during the mur der of Tryo n , by eith er ca l ling to his confederates for help to subdue Tryon or joining in the m elee. ( Cf. Harper, supra , 76 Cal.App.5th at p. 472 [ stating defendant ’ s yout h “ i n no way

u nde rmine[d] ” reckless indifferen ce/major participant finding given
defe ndant ’ s w illing partic ipation in a robbery that car ried a high risk
the victim would die and his conduct before and after the crime ].)

6 S ection 1172.6 does not requ ire a s tatement o f r easons foll owing
an evidentia ry hearing.8

any circumstances that would warrant a remand in this

case. ( Jon es, supra , 86 Cal .App.5th at p. 1091 .)

D ISPOSITION
The order denying appellan t ’ s resenten cing petition is

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MORI , J.

We concur:

C OLLINS, Acting P. J.

ZUKIN , J

.