Filed 5/21/21 P. v. Ross 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

TERRILL ROSS,

Defendant and Appellant.

 B305309

 (Los Angeles County

 Super. Ct. No. A820702)

APPEAL from an order of the Superior Court of 

Los Angeles County. Richard H. Kirschner, Judge. Affirmed.

Mark Alan Hart, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Charles Lee and Colleen M. Tiedemann, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Terrill Ross (defendant) filed a petition seeking to vacate 

his murder conviction under Penal Code section 1170.95.1 The 

trial court denied the petition after an evidentiary hearing. We 

affirm. 

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Underlying crime2

In April 1988, defendant and Devin Feagin (Feagin) 

conducted an armed home-invasion burglary and robbery that 

ended with Feagin shooting and killing one of the home’s two 

occupants.

At that time, defendant was 17 years old; Feagin, “a few 

years older.” They were friends. The day before the crime, 

Feagin’s distinctive looking Cadillac slowly drove by the victims’ 

home.

1 All further statutory references are to the Penal Code 

unless otherwise indicated.

2 These facts are drawn from our prior opinion affirming 

defendant’s conviction on direct appeal (People v. Feagin (1995) 

34 Cal.App.4th 1427 (Feagin)) as well as from the record of 

conviction as recounted by counsel during the evidentiary hearing

where not disputed by opposing counsel. 
3

The day of the crime, defendant and Feagin each armed 

themselves with a loaded gun. They approached the house and 

knocked on the door before “crash[ing] through the bedroom door” 

and yelling, “this is a robbery and we have cocked guns.” 

They first encountered a woman in the kitchen. When the 

woman picked up a nearby phone to call 911, defendant pointed 

his gun at her and ordered her to “hang up the phone and get on 

the floor.”

While defendant held the woman at gunpoint, Feagin went 

down the hall to a bedroom where he came upon the woman’s 

husband. When the husband reached for a gun, Feagin shot him. 

As the husband lay dying, Feagin ransacked the bedroom, taking 

a .22 pistol, the couple’s passports, and a Seiko watch. 

When Feagin returned to the kitchen area, he said, “Let’s 

get the hell out of here.” Defendant did not express surprise or 

horror at what Feagin had done. Instead, he asked, “Do you have 

any money?” When Feagin lied by answering, “Lots,” the two 

men fled the home, leaving the woman alone with her dying 

husband.

B. Charges, sentence and appeal

In the operative complaint, the People charged defendant 

and Feagin with (1) murder (§ 187, subd. (a)), (2) first degree 

residential robbery (§ 211), (3) residential burglary (§ 459), and 

(4) assault with a firearm (§ 245, subd. (a)(2)). As to all charges, 

the People further alleged that both defendant and Feagin had 

personally used a firearm (§ 12022.5). 

The matter proceeded to a jury trial. With respect to the 

murder charge, the trial court instructed the jury on the theories 

of (1) direct aiding and abetting, and (2) felony murder. The jury 
4

convicted defendant of all charges and found the personal use of a 

firearm allegation to be true for all charges. 

The trial court sentenced defendant to state prison for 27 

years to life. Specifically, the court imposed a sentence of 27 

years to life on the murder count, comprised of a base sentence of 

25 years to life plus two years for the firearm enhancement. The 

court imposed but stayed four-year prison sentences on the 

robbery and burglary counts. And the court imposed a 

concurrent three-year prison term on the assault count and 

stayed the firearm enhancement on that count.

We affirmed defendant’s convictions and sentence on 

appeal. (Feagin, supra, 34 Cal.App.4th at p. 1440.)

II. Procedural Background

On January 2, 2019, defendant filed a petition seeking 

resentencing under section 1170.95. In the form petition, 

defendant checked the boxes for the allegations that he had been 

charged with murder, that he was convicted “pursuant to the 

felony murder rule or the natural and probable consequences 

doctrine,” and that his murder conviction would be invalid under 

the “changes made to Penal Code §§ 188 and 189, effective 

January 1, 2019.” 

After the trial court appointed counsel for defendant and 

entertained two rounds of briefing, the court found that 

defendant had alleged a prima facie case for relief and set the 

matter for an evidentiary hearing. 

The court held an evidentiary hearing in late February 

2020. The parties relied solely on the record of conviction. 

Following argument by counsel and defendant’s concession that 

he was a “major participant” in the underlying robbery-burglary, 

the trial court found beyond a reasonable doubt that defendant 
5

had “acted with reckless indifference to human life” and thus was 

ineligible for relief under section 1170.95. In making this 

finding, the court enumerated and then analyzed the factors 

relevant to whether a defendant acts with reckless indifference to 

human life set forth in People v. Banks (2015) 61 Cal.4th 788 

(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). 

Specifically, the court found that (1) defendant was aware that 

both he and Feagin would be “armed during the entire robbery 

and burglary,” which aggravated the risk because “[t]he more 

guns, the greater the chance of gunfire”; (2) defendant was “at the 

robbery-burglary scene from start to finish,” and elected not to 

restrain Feagin or help the victims despite having the 

“opportunity” to do so; (3) defendant “knew that the victims were 

at home and that this was going to be a violent home invasion 

robbery,” but “took no steps” “to limit the duration and extent of 

the interaction with the [victims] so as to minimize the risk” of 

harm to them; (4) defendant had no “reason to trust that . . . 

Feagin was going to be peaceful” because he knew both of them 

were armed; and (5) defendant made no “efforts to minimize the 

risk of violence during the course of this armed robbery and 

burglary.” 

Defendant filed this timely appeal. 

DISCUSSION

Defendant argues that the trial court erred in denying his 

petition for relief under section 1170.95. 

In 2018, our Legislature changed the law to eliminate 

liability for murder resting on a theory of felony-murder (that is, 

on a theory that the defendant is liable for murder if he 

participates in an underlying felony and one of his coparticipants 

kills someone) except upon a showing that the person “was a 
6

major participant in the underlying felony and acted with 

reckless indifference to human life.” (§ 189, subd. (e)(3), added by

Stats. 2018, ch. 1015, § 3.) Section 1170.95 is the procedural 

vehicle by which defendants previously convicted of murder on a 

felony-murder theory can seek to vacate their murder conviction

and be resentenced solely on the underlying felony. (§ 1170.95, 

subds. (a) & (d).) Where, as here, a defendant has made out a 

“prima facie showing” that he was entitled to relief because his 

murder conviction may have rested on a felony-murder theory, 

the trial court must hold a “hearing to determine whether [the 

defendant] is entitled to relief.” (Id., subd. (d)(3).) At that 

hearing, the prosecution bears “the burden . . . to prove, beyond a 

reasonable doubt, that the [defendant] is ineligible for 

resentencing.” (Ibid.) Although the courts are split over whether 

the prosecution carries its burden by proving that no reasonable 

jury could find the defendant guilty of murder because he is a 

major participant acting with reckless indifference to human life 

(People v. Duke (2020) 55 Cal.App.5th 113, 123, review granted

Jan. 13, 2020, S265309) or by convincing the trial court hearing 

the section 1170.95 petition that the defendant was a major 

participant acting with reckless indifference to human life (People 

v. Rodriguez (2020) 58 Cal.App.5th 227, 241-242, review granted 

Mar. 10, 2020, S266652; People v. Lopez (2020) 56 Cal.App.5th 

936, 942, review granted Feb. 10, 2021, S265974; People v. 

Clements (2021) 60 Cal.App.5th 597, 617-618, review granted 

Apr. 28, 2021, S267624 (Clements); People v. Harris (2021) 60 

Cal.App.5th 939, 952-953, review granted Apr. 28, 2021, 

S267802; People v. Duchine (2021) 60 Cal.App.5th 798, 813-814), 

we need not take a position because the trial court in this case 

held the prosecution to the latter, more defendant-friendly 
7

burden of proof by making its own finding beyond a reasonable 

doubt that defendant was a major participant acting with 

reckless indifference to human life. Because the defendant 

concedes that he was a major participant in the underlying 

felonies of robbery and burglary, the sole question before is 

whether substantial evidence supports the trial court’s finding 

that he acted with reckless indifference to human life. (Clements, 

at p. 618; People v. Bascomb (2020) 55 Cal.App.5th 1077, 1084, 

1087 (Bascomb).)

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 

pp. 800-801, 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 and an objective” component. (In re 

Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).) 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 
8

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 

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.)

Using these considerations as a guide, substantial evidence 

supports the trial court’s finding that defendant acted with 

reckless indifference to human life. Although defendant’s 

awareness that Feagin was “armed” or that a gun would be used 

is not enough, “without more,” to establish an awareness of a 

grave risk of death (Banks, supra, 61 Cal.4th at p. 809, fn. 8), 

here there was much more: Defendant not only knew a gun 

would be used, but he and Feagin each had their own gun, those 

guns were loaded, and defendant and Feagin—immediately upon 

crashing into the home—expressed their readiness and 
9

willingness to use those loaded guns by shouting “we have cocked 

guns.” Defendant was physically present in the home the entire 

time. Although he was not inside the bedroom at the moment 

Feagin shot the husband, defendant was just down the hall. He 

could have restrained Feagin by yelling down the hall at him or 

by accompanying him (with the woman in tow), and could have 

aided the victims by setting the woman free, by allowing her to 

call 911 when Feagin was down the hall, or by going to check on 

the husband after he heard gunfire. Defendant did none of those 

things. Indeed, he expressly no surprise or anger or concern for 

Feagin’s victim when Feagin returned from the bedroom; instead, 

he asked Feagin what “money” he had managed to grab. 

Defendant pointed the barrel of his gun at the woman for several 

minutes while Feagin shot her husband and ransacked their 

bedroom. Feagin had once before threatened to kill someone, and 

defendant had been friends with Feagin long enough that he may 

well have known about that threat. And defendant made 

absolutely no effort to minimize the risk of violence during the 

underlying felonies of robbery and burglary.

This case is remarkably similar to Bascomb, supra, 55 

Cal.App.5th 1077. There, the defendant and a cohort armed 

themselves, “pushed their way into [a] home,” and the defendant 

ordered one of the residents to the ground at gunpoint while the 

other went into a bedroom and shot someone. (Id. at pp. 1081, 

1089-1090.) Bascomb held that the defendant acted with reckless 

indifference to human life. (Id. at p. 1089.) 

Defendant responds with three categories of arguments.

First, he argues that we should independently examine the 

record and decide for ourselves whether we would find, beyond a 

reasonable doubt, that defendant acted with reckless indifference 
10

to human life. He asserts that the trial court’s finding is entitled 

to no deference because that court’s finding was based solely on 

the “cold record.” Thus far, appellate courts have uniformly 

applied substantial evidence review to the trial court’s section 

1170.95 findings after an evidentiary hearing. (See Clements, 

supra, 60 Cal.App.5th at p. 618; Bascomb, supra, 55 Cal.App.5th 

at pp. 1084, 1087.) We need not decide whether we would break 

with this precedent because, on the record before us, we would 

independently come to the same conclusion as the trial court.

Second, defendant argues that several considerations 

compel a finding (should we review the trial court’s finding for 

substantial evidence) or warrant a finding (should we 

independently make our own finding) that he did not act with 

reckless indifference to human life. He contends that the trial 

court was wrong to infer his reckless indifference from the use of 

guns in the robbery, and reminds us that “the risk of death 

inherent in an armed robbery” does not amount to reckless 

indifference to human life. (Banks, supra, 61 Cal.4th at pp. 808-

809.) But this case involved more than a cohort bringing a gun to 

an armed robbery; here, defendant himself was armed with a 

loaded gun, proclaimed a willingness to fire it, and then used it to 

restrain one victim while Feagin killed the other. Next, 

defendant asserts that there was no evidence he was personally 

involved in planning the heist. Although there is “significant[]

overlap” between the major participant and reckless indifference 

elements (Clark, supra, 63 Cal.4th at pp. 614-615), a defendant’s 

involvement in planning the underlying felony is more relevant 

to whether the defendant was a major participant than whether 

he acted with reckless indifference (Banks, at p. 803) and 

defendant concedes he was a major participant. The coordinated 
11

fashion in which defendant and Feagin entered the home and 

split up to control the victims also implies that this was not a 

spontaneous, unplanned raid. Further, defendant posits that he 

had no opportunity to restrain Feagin because (1) defendant was 

17 and Feagin was “a few years” older, and (2) he was not in the 

bedroom with Feagin when Feagin shot the husband. But the 

inference defendant asks us to draw between the minimal age 

difference and his lack of influence over Feagin is based on 

nothing but speculation, and defendant’s presence in the home

enabled him to communicate with—and thereby restrain—Feagin 

at all times and yet he chose not to do. Lastly, defendant urges 

that Feagin’s shooting was the product of the husband’s conduct 

in reaching for the gun to defend himself and hence was 

“unexpected,” but the notion that a homeowner might take 

actions to protect himself from armed assailants is not

unexpected, and the reckless indifference standard does not 

require a showing that a defendant “desire[s]” the shooting 

(Clark, at p. 617). Defendant nevertheless created and then 

recklessly disregarded the risk of such a confrontation by 

storming with Feagin into the home with loaded guns and 

threatening to fire them.

Third, defendant argues that precedent is on his side. It is 

not. He analogizes the facts of this case to Scoggins, but the 

analogy does not hold. In that case, Scoggins planned an 

“unarmed assault and robbery” as “revenge” for being defrauded 

out of money. (Scoggins, supra, 9 Cal.5th at p. 671.) Scoggins did 

not accompany his recruits because he was afraid the victim 

might recognize him. (Ibid.) However, one of the recruiters 

brought along a gun and opened fire on the victim. (Id. at p. 672.)

After hearing the shots, Scoggins went to the scene and stayed 
12

with the victim until the police arrived. (Ibid.) On these facts, 

our Supreme Court found that Scoggins had not acted with a 

reckless indifference to human life. (Id. at pp. 677-683.) This 

case is completely different because defendant knew guns would 

be used, brought along a loaded gun himself, threatened to fire it, 

personally used it to restrain one victim while Feagin robbed and 

shot the other, expressed no hesitancy or surprise at the shooting, 

and fled once he was assured Feagin had secured some loot. 

Defendant acknowledges that this case is nearly identical to 

Bascomb, but argues that Bascomb was wrongly decided. We 

find nothing wrong with Bascomb.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________________, J.

HOFFSTADT

We concur:

________________________, P. J.

LUI

________________________, J.

CHAVEZ