1

Filed 11/8/21 P. v. Rivera CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER SHANE RIVERA,

Defendant and Appellant.

E075838

(Super.Ct.No. FVI800549)

OPINION

APPEAL from the Superior Court of San Bernardino County. Debra Harris, 

Judge. Affirmed.

Spolin Law and Aaron Spolin for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Alan L. Amann and A. Natasha 

Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
2

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On October 6, 2010, a jury convicted defendant and appellant Christopher Shane 

Rivera of first degree murder under Penal Code1section 187, subdivision (a) (count 1); 

attempted robbery as a lesser included offense of robbery under sections 664 and 211 

(count 2); and first degree residential burglary under section 459 (count 3). With respect 

to all three counts, the jury found a principle was armed with a firearm, but found not true 

the allegations that defendant personally discharged a firearm. The trial court sentenced 

defendant to an indeterminate term of 25 years to life for the murder, and eight years for 

the attempted robbery and burglary.

After defendant appealed, we affirmed the judgment. (People v. Rivera (Apr. 18, 

2012, E052339) [nonpub. opn].)

On January 2, 2019, defense counsel filed a petition for resentencing under section 

1170.95. The People stipulated to the fact that defendant stated a prima facie case for an 

order to show cause and an evidentiary hearing because of the jury’s not true finding on 

the personal gun use allegation.

The trial court conducted an evidentiary hearing. Following briefing by the parties 

and a review of the underlying trial transcripts and argument, on August 10, 2020, the 

trial court found defendant ineligible for resentencing because he was a major participant 

in the felony murder and acted with reckless disregard for human life.

1

 All further statutory references are to the Penal Code unless otherwise indicated.
3

On September 28, 2020, defendant filed a timely notice of appeal.

B. FACTUAL HISTORY2

“On the evening of March 6, 2008, Lucas Buckingham was partying in his 

apartment with the murder victim, Atencio, Atencio’s brother Andrew, and a friend of 

Andrew’s. They were drinking and doing drugs. They went to sleep between 2:00 a.m. 

and 4:00 a.m. Atencio slept on the living room couch. Andrew and his friend left the 

apartment between 7:30 a.m. and 8:00 a.m. At that time, Atencio was in the living room 

talking on the telephone with his fiancé.

“Later that day, Troy Fava, Peter Lewis, Charles Carr, and defendant arrived at 

Buckingham’s apartment complex in two cars. Fava and Lewis were in one car and 

defendant and Carr were in defendant’s sister’s BMW. After exiting their vehicles they 

walked through the complex to Buckingham’s apartment. They entered through an 

already open front door.

“Carr testified that at the time of entry, Atencio was seated on the living room 

couch. He testified that defendant, Fava, and Lewis went into Buckingham’s bedroom, 

and he remained at the doorway to the apartment. Defendant testified that as they walked 

in, Atencio stood up and asked, ‘[w]hat’s going on?;’ after being asked where 

Buckingham was, one of the group pushed Atencio into a chair.

2

 The facts are taken from the unpublished opinion in case No. E052339. 
4

“Buckingham testified that after going to sleep in the early morning hours, the 

next thing he remembered was that it was daylight and Fava was straddling him on the 

bed and punching him. Buckingham indicated that Lewis was behind Fava and there was 

another person in the doorway he did not recognize. Fava then pulled him to the floor 

and continued punching him while Lewis was holding a black semiautomatic pistol. 

After Fava stopped beating Buckingham, Lewis asked where the stash was; Fava 

indicated to Lewis that that was not what they were there for, and that they needed to do 

what they came to do. Lewis then put down the gun, took his gloves off, and started to 

choke Buckingham.

“Defendant testified that after entering the apartment, he and Fava went to 

Buckingham’s bedroom and Carr and Lewis remained in the front room with Atencio. 

As Fava was beating Buckingham, defendant stood at the door. In a statement to an 

investigating officer, defendant indicated it was he who asked Buckingham where the 

money and drugs were. He further testified that at some point Lewis entered the room 

and started beating on Buckingham.

“Buckingham testified that as he was being choked by Lewis, things began to go 

fuzzy. He then heard from the living room a large thud, which was followed by 

gunshots. Looking from his bedroom he could see Lewis standing in the area where the 

carpet joins the kitchen linoleum, shooting a firearm. Lewis was facing the front door. 

Two guns were being fired. He believes he heard approximately 15 gunshots. He then 

heard Fava say, ‘[w]e’ve got to leave now,’ and they left the apartment.
5

“Carr testified that as he was standing at the door to the apartment he heard sounds 

of fighting coming from the bedroom. During this time, Atencio got off the couch and 

went towards the hallway leading to the bedroom; as Atencio turned, Carr saw a gun in 

Atencio’s right hand. Carr immediately ran from the apartment. As he was running he 

heard about 10 shots being fired. Defendant testified that as Lewis was beating up 

Buckingham he heard a commotion in the living room. He then saw Atencio moving 

towards the living room with a gun. Defendant went back into the bedroom and got on 

the floor; at this point, gunshots started; after they stopped, he ran outside.

“Buckingham indicated that after the shooting stopped he went outside; Atencio 

was lying on the ground bleeding with a bullet in his chest. Atencio was breathing at that 

point. After Buckingham called 911, he watched Atencio die. He did not see any 

firearms in the vicinity of Atencio.

“After leaving the apartment, defendant ran to his car. As he was leaving the 

apartment complex he stopped to pick up Carr. Carr testified they drove to Carr’s house. 

When they got there, defendant pulled two guns from his jacket and indicated that he 

needed to do something with them. Defendant told Carr that Atencio would not stop 

shooting and that he had to shoot back. He indicated he did not know how many times he 

fired and that he just hung the gun around the corner and fired. He was unsure if he shot 

Atencio. Defendant told Carr that as he was leaving the apartment Atencio was lying on 

the ground and still moving; defendant picked up a gun lying near Atencio.
6

“Carr further testified that after going to defendant’s house they drove into the 

desert and hid the guns in some rocks. At the time of the incident, Steven Pennington 

was on homicide detail with the San Bernardino County Sheriff’s Department. He 

testified that he interviewed Carr in the early morning hours of March 8. Carr pointed 

out the area where the guns were hidden. He located a Glock model 22 and a Sig P226.

“William Matty, a criminalist with the State of California Department of Justice, 

testified that he examined a Glock model 22 and a Sig Sauer nine-millimeter. Three of 

the cartridges collected at the apartment were fired by the Glock pistol. Two other 

cartridges were fired by the Sig Sauer pistol. The two bullets retrieved during the 

autopsy could not have been fired by the Glock, but could have been fired by the Sig 

Sauer. The Sig Sauer was owned by William Rivera, defendant’s father.

“Hazel Whitworth, a criminalist with the sheriff’s crime laboratory, testified that 

Atencio had gunshot wounds to the chest area. He was somewhere in the entryway of the 

apartment when a bullet hit him in the heart. Dr. Chanikarn Changsri, a deputy medical 

examiner with the San Bernardino County Sheriff’s Coroner’s Division, indicated that the 

cause of Atencio’s death was a bullet that penetrated between the ribs and went into the 

heart.

“The defense was premised on the notion that Carr was the shooter. Defendant’s 

father testified that on the day before the shooting he was going to take his Sig Sauer 

pistol to the shooting range. Prior to going, he took the gun (in its case) from his safe and 

put it in his pickup truck. Thereafter, and at the behest of his wife, he agreed to go to San 

Diego for the weekend. As they were packing to leave for San Diego, he noticed the gun 
7

case in his pickup; rather than take it back into the house, he placed it on the rear 

floorboard of his daughter’s BMW. Defendant testified he did not know of the presence 

of the gun. On the morning of the shooting, he drove his sister’s BMW and picked up 

Carr; the two of them went to Fava’s house. Lewis was at Fava’s house. The rag top on 

the BMW was down. Carr and others had access to the inside of the car during the period 

of time they were at Fava’s house.

“Defendant testified that as he was leaving the apartment after the shooting he 

passed by Atencio; there were no objects on the ground around the victim. As he was 

leaving the complex in his car, he picked up Carr. When they arrived at Carr’s house, 

and while defendant was on the telephone with Fava’s sister, he noticed that Carr had a 

gun on his lap. Thereafter, Carr pulled another gun from a pocket of his hoodie. Shortly 

thereafter they went into the desert and Carr hid the guns in a rock pile.” (People v. 

Rivera, supra, E052339.)

DISCUSSION

A. THE TRIAL COURT PROPERLY FOUND DEFENDANT INELIGIBLE 

FOR RELIEF UNDER SECTION 1170.953

In this case, the trial court denied defendant’s petition at the final stage of review, 

finding beyond a reasonable doubt after a hearing pursuant to section 1170.95, 

3 We are aware of the Supreme Court's recent opinion in People v. Lewis (2021) 

11 Cal.5th 952 (Lewis), addressing the appropriate stage in section 1170.95 proceedings 

for appointment of counsel. This is not an issue in this case because the trial court 

appointed counsel for defendant, the parties briefed the petition, and the trial court held a 

hearing to determine whether defendant made a prima facie case for relief.
8

subdivision (d)(1), that defendant was ineligible for resentencing because he was a major 

participant and acted with reckless indifference to human life. Defendant contends that 

the trial court erred in finding him ineligible for relief because there was insufficient 

evidence that he was a major participant in the underlying robbery and burglary, and that 

he acted with reckless indifference to human life. For the reasons set forth post, we find 

that the trial court properly found defendant ineligible for relief under section 1170.95.

1. ADDITIONAL FACTS FROM THE SECTION 1170.95 HEARING

Here, at the section 1170.95 hearing, the parties relied on the record of conviction 

and did not introduce additional evidence. In addition, the parties provided extensive 

briefing.

The prosecutor primarily relied on defendant’s statements to Detective Gaffney 

during defendant’s police interview, which was admitted at trial as Exhibits 79 (the video 

of the interview) and 79a4(the transcript of the interview). The prosecutor argued that 

defendant’s own statements reflected his major role in planning the assault and robbery 

of Buckingham, which led to the death of Atencio. Defendant was aware of the 

escalating violence between Fava, Lewis and Buckingham because Fava and Lewis told 

defendant about their recent encounter wherein they assaulted and robbed Buckingham. 

Moreover, defendant participated in a second incident that involved Buckingham wherein 

defendant and two of his cohorts tried to assault Buckingham. Buckingham, however, 

4 Exhibit 79a from the underlying trial is part of the clerk’s transcript from the 

trial at pages 554 through 611. The People attached a copy of the interview as Exhibit 5 

in its pleadings in the clerk’s transcript on this appeal at pages 221 through 277.
9

escaped by brandishing a weapon and driving away. Buckingham damaged defendant’s 

car while escaping.

The prosecutor stated: “So repeatedly during the conversation with Sergeant 

Gaffney [defendant] refers to what the plan was before going over to Buckingham’s 

apartment and it is consistent, although he uses different language, consistently the plan 

is to both assault and take his stuff, and it is clear from the statements that [defendant] 

knew what was going to go down and voluntarily agreed to be a part of it, and in one of 

these he specifically mentions that he wanted to go over there because ‘I need money. 

He needs to pay for that bumper.’ So he had an individual reason for going over as well.”

The prosecutor also recounted that on the day of the murder, defendant met with 

Fava and Lewis before going to Buckingham’s. They discussed how Fava and Lewis 

were going to ”Fuck up” and “hurt” Buckingham, while defendant intended to rob 

Buckingham. Defendant was not only aware that Buckingham possessed guns but he 

also knew that Lewis always carried a gun and that their confrontations were escalating.

Additionally, the prosecutor pointed out that defendant took the gun actually used 

to kill Atencio. The gun, a Sig Sauer, was registered to defendant’s father.

Furthermore, the prosecutor observed that defendant, during his interview, 

admitted that he, Fava and Lewis entered Buckingham’s apartment without invitation. 

Defendant then watched as Fava and Lewis pushed Atencio down on a chair, and that 

defendant entered Buckingham’s bedroom with his cohorts while Buckingham was 

asleep. Defendant watched as his companions beat and strangled Buckingham to the 

point that Buckingham thought he was going to die. Defendant used that as an 
10

opportunity to try and rob Buckingham. Defendant was also placed in the vicinity of the 

shooter, based on ballistics and defendant’s own testimony. Defendant did not stop the 

shooting, render aid or call police. He admitted that his main focus was to flee the scene.

The prosecutor stated: “Whether the defendant’s own actions or inactions played 

a role in the death. Here we have strength in numbers. Four people who went over to 

participate in a home invasion robbery. [Atencio] was significantly out numbered. 

[Atencio] used Buckingham’s firearm in a attempt to [repel] the home invasion robbers. 

[Defendant] chose to go with the other three to the apartment. He chose to park in the 

same area as Peter Lewis where there was an escape advantage on the other side of the 

complex. He chose to make entry without invitation into the bedroom. He chose to stand 

in the doorway while Fava and Lewis beat up Lucas Buckingham. He chose to look for 

items of value while beating him up, and he chose to remain and do these things even 

when he could no longer plausibly say, I thought we were going over there to talk. [¶] 

. . . [¶] Whether the defendant acted in a particular way after lethal force was used, he 

ran out of the apartment, ran past the victim, victim’s on the group, he’s moving, he’s still 

alive, which [defendant] admits. He didn’t stop to help [Atencio]. He didn’t call the 

police. He specifically said he didn’t want to be involved with the police. He knew there 

was just a gun battle. [¶] He specifically said that his main focus was getting away, 

fleeing the scene, . . . and he says he didn’t call 911. Wasn’t thinking about, maybe an 

ambulance needing to respond. So those are the factors with regard to major participant.”
11

The prosecutor then moved on to defendant’s reckless disregard for human life 

during the commission of the crimes. The prosecutor noted the overlaps between 

participating and reckless disregard—“there’s a lot of overlap but knowledge of weapons 

is one, use and number of weapons is one, proximity to the crime and opportunity to stop 

the killing or aid the victim, duration of the conduct whether the murder came at the end 

of a prolonged period, restraint of the victims by the defendant, awareness of the 

defendant that his or her confederate was likely to kill, and the defendant’s efforts to 

minimize the possibility of violence during the crime.”

The prosecutor reiterated that the gunfire occurred after a prolonged period of 

restraint of the victims by defendant and his cohorts, not mere seconds but minutes. The 

prosecutor also emphasized that defendant made no effort to render aid to Atencio. The 

prosecutor, therefore, concluded that a jury could look at the factors and find beyond a 

reasonable doubt that defendant was guilty of felony murder under the new definition,

which required defendant to be a major participant in the felony, who acted with reckless 

disregard for human life.

At the hearing on the motion, defense counsel argued that defendant was neither a 

major participant nor acted with reckless disregard for human life. Counsel relied on 

defendant’s trial testimony. He argued that defendant was only vaguely aware of the 

initial incident involving Buckingham and that in the second confrontation, his cohorts 

only relayed Buckingham’s brandishing of a gun during their 20-minute pursuit. Defense 

counsel reasoned that the second incident supported defendant’s claim that his motive in 

going to Buckingham’s was to collect money to repair his car. Defendant denied 
12

knowing that his father’s gun was in his sister’s car. His father testified that he had 

unexpectedly placed the gun in his daughter’s car; defendant drove that car on the day of 

the murder. Defense counsel further pointed out that defendant testified they did not 

discuss firearms before the planned assault and robbery. Additionally, defendant did not 

fight anyone, and defendant testified that he hid in the bedroom when gunshots started to 

fire.

At the conclusion of the hearing, the trial court found that the prosecutor met his 

burden of proof. The court first addressed the notion that the day of the murder involved 

a regular robbery—the court found that it did not. The court relied on the “language that 

we’ve discussed” to find violence was contemplated, not just robbery. 

Second, the court then found evidence of planning among defendant and his 

cohorts because they had different motives for going to Buckingham’s, and had discussed 

them in advance. The court stated, “Well that necessarily implies that there was some 

type of conversation, for one person to know of the other person’s motive.”

Third, the court concluded that defendant had knowledge that his father’s gun was 

in the car and found contrary testimony not credible. The court also noted it was 

unreasonable to conclude that defendant and his cohorts never discussed firearms given 

their prior experience with Buckingham. The court then observed, “lo and behold there’s 

a firearm that appears in the convertible.” The court rejected as unreasonable that 

defendant did not know the gun was in his sister’s car but his cohorts knew about the gun. 

The court went on to state that when defendant took the stand, “There was no

reaction. . . . There was no reaction about finding that it was indeed his father’s weapon, 
13

how he recognized it, how it got back to either his sister’s car or to [his father’s] safe. So 

that whole version to me is unreasonable and I find that a jury would reject it. So as to 

major participant I do find that there’s connection to the weapon.”

Additionally, the trial court noted that there was evidence defendant went from 

room to room witnessing his cohorts carrying out different aspects of the crime. The 

court observed that defendant could be viewed as a ringleader. Furthermore, the trial 

court found that in addition to the planning and defendant’s connection to the gun, the 

fact that defendant provided the transportation, which contained the gun, and his postshooting behavior, established that defendant was a major participant beyond a 

reasonable doubt. 

As to the reckless disregard for human life, the trial court found that the same 

circumstances establishing major participation established the reckless disregard for 

human life component as well. The court emphasized the fact that the “violence was 

planned . . . and you know that they are known to be strapped, you know that this is a 

likelihood for some type of violence.” Defendant observed the violence, including 

strangulation. Moreover, even if defendant had a separate motive to get compensation 

for the damage to his mother’s car, he knew that his cohorts planned “to F someone up 

who was strapped” as well. The trial court sated that the evidence “show[ed] a reckless 

indifference for human life and in the totality of the evidence I find that the People have 

met their burden of proof beyond a reasonable doubt and the petition for resentencing is 

denied.”
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2. ANALYSIS

Effective January 1, 2019, Senate Bill No. 1437 (Sen. No. 1437) was enacted to 

“amend 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).) It accomplished this by amending section 188, which defines 

malice, to add a requirement that all principals to a murder must act with express or 

implied malice to be convicted of that crime. (Stats. 2018, ch. 1015, § 2, subd. (a).) It 

also amended section 189, which defines the degrees of murder, by adding a condition to 

the felony-murder rule. Henceforth, in order to be convicted of felony murder, a 

defendant who was neither the actual killer nor a direct aider and abettor to the murder 

must have been a major participant in the underlying felony who acted with reckless 

indifference to human life. (Stats. 2018, ch. 1015, § 3, subd. (d)(3); see Lewis, supra, 11 

Cal.5th at pp. 959-960; People v. Martinez (2019) 31 Cal.App.5th 719, 723.)

“In addition to substantively amending sections 188 and 189 of the Penal Code, 

[Sen. No. 1437] added section 1170.95, which provides a procedure for convicted 

murderers who could not be convicted under the law as amended to retroactively seek 

relief.” (Lewis, supra, 11 Cal.5th at p. 959.) Thus, section 1170.95 allows those 

“convicted of felony murder or murder under a natural and probable consequences theory 

[to] file a petition with the court that sentenced the petitioner to have the petitioner’s 

murder conviction vacated and to be resentenced on any remaining counts.” (§ 1170.95, 
15

subd. (a).) The section goes on to describe what must be included in a petition for 

resentencing, and sets forth the procedure to be followed by a trial court upon receiving 

such a petition.

In its initial review of whether a petitioner has made a threshold showing that he 

or she falls within the provisions of section 1170.95, the court examines whether the 

petitioner has stated eligibility for relief. A petitioner must allege: (1) an accusatory 

pleading was filed against him or her allowing prosecution under the felony-murder rule 

or the natural and probable consequences doctrine (§ 1170.95, subd. (a)(1)); (2) he or she 

was convicted of first or second degree murder following a trial, or pleaded guilty to first 

or second degree murder in lieu of a trial at which he could have been so convicted (id., 

subd. (a)(2)); and (3) he or she could not today be convicted of first or second degree 

murder because of the 2019 amendments to sections 188 and 189 (id., subd. (a)(3)).

If the petitioner meets this facial showing of eligibility, the court must appoint 

counsel and entertain briefing from the prosecutor and appointed counsel. If, after 

briefing, the petitioner has established a prima facie case he or she is entitled to relief, 

i.e., if a showing regarding his or her eligibility has been made, the court must issue an 

order to show cause, and thereafter hold a full hearing to determine whether petitioner is 

entitled to relief. (§ 1170.95, subds. (c) & (d)(1); see also Lewis, supra, 11 Cal.5th at pp. 

959-960.) “If the trial court determines that a prima facie showing for relief has been 

made, the trial court issues an order to show cause, and then must hold a hearing ‘to 

determine whether to vacate the murder conviction and to recall the sentence and 

resentence the petitioner on any remaining counts in the same manner as if the petitioner 
16

had not . . . previously been sentenced, provided that the new sentence, if any, is not 

greater than the initial sentence.’ [Citation.] ‘The prosecutor and the petitioner may rely 

on the record of conviction or offer new or additional evidence to meet their respective 

burdens.’ [Citation.] At the hearing stage, ‘the burden of proof shall be on the 

prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for 

resentencing.” (Lewis, at p. 960.)

To be eligible for resentencing, defendant must show that he “could not be 

convicted of first or second degree murder because of changes to Section 188 or 189 

made effective” in Sen. No. 1437. (§ 1170.95, subd. (a)(3).) As we have described ante, 

Sen. No. 1437 amended section 189 to require, in all felony-murder cases, proof that the 

defendant was the actual killer, acted with the intent to kill, or “was a major participant in 

the underlying felony and acted with reckless indifference to human life.” (§ 189, subd. 

(e)(3); see People v. Gentile (2020) 10 Cal.5th 830, 841-843.) 

At the final eligibility hearing, the prosecution must “prove, beyond a reasonable 

doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3); see also 

Lewis, supra, 11 Cal.5th 952, 960.)

We recognize that there is currently a split in authority on what legal standard a 

trial court should apply at a section 1170.95, subdivision (d) hearing. In People v. Duke

(2020) 55 Cal.App.5th 113, 123 (review granted Jan. 13, 2021, S265309) Division One 

of the Second District Court of Appeal concluded the applicable standard is akin to 

substantial evidence review. That is, “[t]o carry its burden, the prosecution must . . . 

prove beyond a reasonable doubt that the defendant could still have been convicted of 
17

murder under the new law—in other words, that a reasonable jury could find the 

defendant guilty of murder with the requisite mental state for that degree of murder. This 

is essentially identical to the standard of substantial evidence.” (Id. at p. 123.)

Division Two of the Second District Court of Appeal, however, rejected this view 

in People v. Fortman (2021) 64 Cal.App.5th 217, review granted July 21, 2021, S269228. 

There, the court held “that, at the hearing contemplated by section 1170.95, subdivision 

(d), the People are required to prove to the trial court beyond a reasonable doubt that the 

petitioner is guilty of murder on a theory of murder valid after [Sen. No.] 1437’s 

enactment.” (Id. at p. 226; see People v. Lopez (2020) 56 Cal.App.5th 936, 949 (Lopez), 

review granted Feb. 10, 2021, S265974; People v. Duchine (2021) 60 Cal.App.5th 798, 

814 [“idea that the prosecution must prove beyond a reasonable doubt that there is 

substantial evidence in a prior record to support a hypothetical finding of guilt on a 

theory of murder that may never have been presented to a jury is beyond” 

incomprehensible]; People v. Clements (2021) 60 Cal.App.5th 597, 617-618, review 

granted Apr. 28, 2021, S267624; People v. Hernandez (2020) 60 Cal.App.5th 94, 103; 

People v. Rodriguez (2020) 58 Cal.App.5th 227, 241-242, review granted Mar. 10, 2021, 

S266652.)

Our Supreme Court will resolve this split in Duke, but until it does, “we join the 

growing chorus that requires an independent finding by the trial court,” and proof beyond 

a reasonable doubt by the People that the petitioner is ineligible for relief. (People v. 

Fortman, supra, 64 Cal.App.5th at p. 221.)
18

Although section 1170.95 establishes a multi-stage review process for the trial 

court to determine a defendant’s eligibility, the statute does not indicate that, when we 

review the trial court, we should repeat the final stage of that process with no deference 

to the trial court’s findings. We join the other courts that have considered this question in 

holding that it applies to the review of final eligibility hearings under section 1170.95 as 

well. (See Lopez, supra, 56 Cal.App.5th at pp. 953-954; People v. Clements, supra, 60 

Cal.App.5th at p. 618.)

When reviewing for substantial evidence, “ ‘ “the court ‘must review the whole 

record in the light most favorable to the judgment below to determine whether it discloses 

substantial evidence—that is, evidence which is reasonable, credible, and of solid 

value—such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.’ ” ’ ” (Lopez, supra, 56 Cal.App.5th at p. 950.)

3. SUBSTANTIAL EVIDENCE SUPPORT’S THE TRIAL COURT’S 

FINDING

Under the substantial evidence standard of review, we find that substantial 

evidence supports the trial court’s finding that defendant was a major participant who 

acted with reckless indifference to human life in the robbery/burglary. 

In People v. Banks (2015) 61 Cal.4th 788 (Banks) the Supreme Court set out a 

series of factors relevant to determining whether a defendant’s participation in a felony 

“was sufficiently significant to be considered ‘major.’ ” (Id. at p. 803.) These factors 

are: “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? 
19

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.)

After listing the relevant factors to determining whether a defendant was a major 

participant, the Supreme Court in Banks cautioned that “[n]o one of these considerations 

is necessary, nor is any one of them necessarily sufficient. All may be weighed in 

determining the ultimate question, whether the defendant’s participation ‘in criminal 

activities known to carry a grave risk of death [citation] was sufficiently significant to be 

considered ‘major.’ ” (Banks, supra, 61 Cal.4th at p. 803.) 

Subsequently, in People v. Clark (2016) 63 Cal.4th 522 (Clark), the Supreme 

Court elaborated on the Banks case. To determine whether a defendant exhibited a 

reckless indifference to human life, a court should look at: the defendant’s knowledge of 

weapons, including 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 offensive 

conduct and “whether a murder came at the end of a prolonged period of restraint of the 

victims by defendant”; the defendant’s awareness that his cohorts were likely to kill; and 

the defendant’s efforts to minimize the possibility of violence during the crime. (Clark at 

pp. 616-623.)
20

Applying the Banks and Clark factors, as the trial court did in this case, we find 

that substantial evidence supports the finding that defendant was a major participant in

the burglary/robbery and that he acted with indifference to human life during the 

commission of the crimes. 

a. Defendant Was a Major Participant

First, substantial evidence supports the trial court’s finding that defendant was 

closely involved with the planning and execution of the armed robbery/burglary. 

Defendant admitted to the detective during his interview that he was part of the plan to go 

to Buckingham’s apartment to “fuck him up” and to rob him. He stated: “Um, pretty 

much, it was, we’re gonna go over there and beat him up, take, take, take his stuff, ya 

know, ya know, try to hurt him”; “[t]hey were gonna fuck him up, ya know, I’ll take 

some of the money that they take out of his pocket.” Defendant even acknowledged that 

he knew Buckingham to be armed, generally, since he used to work in a gun store and 

was a drug dealer. Defendant also told the detective that Lewis always carried a gun.

Moreover, recently, there were two violent confrontations between Buckingham 

and some or all of the involved parties during which Buckingham was armed and the 

confrontations had escalated to include a threat by Buckingham to shoot Fava in the head. 

Additionally, defendant confirmed that he was aware of the first incident between Fava, 

Lewis and Buckingham. In that incident, Fava and Lewis had gone to Buckingham’s to 

confront him over selling drugs to a friend’s son and threatening to take her stuff to pay 

for his debt. The incident ended with Fava and Lewis assaulting Buckingham and taking 

drugs, money, and a gun. In response, Buckingham started calling and threatening Fava 
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and Fava’s family if Fava did not return what he had stolen and pay Buckingham one 

thousand dollars.

A few weeks later, defendant admitted that he agreed to join the dispute on behalf 

of Fava and accompanied Lewis and Fava to beat up Buckingham for making his threats. 

The attack, however, was thwarted by Buckingham brandishing a gun, striking 

defendants car with his own car, and then driving away. Even though defendant observed 

Buckingham brandishing a gun at his companions, defendant pursued Buckingham in his 

(mother’s) car.

The feud between the parties further escalated thereafter. Defendant stated that 

Buckingham called Fava after the car incident. Defendant overheard Buckingham say, 

“[Y]ou fucked up, dude, I’m gonna fucking, put a bullet fucking . . . right in your face.”

Fava’s response was “like, well, come do it, dude, you know where I live, come do it.”

The court found that the plan was no “garden variety armed robbery” given the 

plan to seriously hurt Buckingham. Moreover, as the evidence showed, the plan even 

contemplated death given the nature of the escalating conflict between the parties. The 

court noted that the shared and exchanged motives of defendant, Fava and Lewis led up 

to the robbery/burglary. This supported that defendant was involved in the planning of 

the robbery/burglary. Defendant made clear during his interview that he was also 

motivated to back Fava up in his attack on Buckingham in order to recover payment from 

Buckingham for the damage to defendant’s mother’s car. When Fava asked defendant if 

he wanted to go with Fava and Lewis, defendant stated, “well, fuck, d, ya know, 
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[Buckingham] needs to pay for that bumper, um, so sure I’ll go with you guys or 

whatever.”

The second Banks factor also supports the court’s finding that defendant was a 

major participant in the crimes. The gun that was used to commit the murder was found 

in car that defendant drove. The gun belonged to defendant’s father. Based on the 

totality of the circumstances, the trial court reasonably rejected defendant’s claim that he 

had been unaware that his father’s gun was in the car. Moreover, the court also 

reasonably rejected the testimony of defendant’s father that he had spontaneously placed 

his gun, in its case, on the floor board of the sister’s car. Moreover, defendant’s father 

did not discover his gun was missing until he checked the case in his safe. Because 

defendant knew that he and his cohorts were going to see Buckingham, who usually had a 

gun on him, it is more than reasonable for the court to find that defendant took the gun 

with him.

The third Banks factor further supports that defendant was a major participant. 

Defendant was aware of the particular dangers posed by the nature of the crime, weapons 

used, or past experiences or conduct with other participants. As explained in detail ante, 

defendant was closely involved with the escalating violent and armed confrontations 

between Fava and Buckingham, and assisted in a plan to conduct an armed robbery and 

assault of Buckingham, a drug dealer who had already threatened to put a bullet in Fava’s 

head. With these facts and circumstances, it was foreseeable that there was a high risk of 

violence, or even death. (See In re McDowell (2020) 45 Cal.App.5th 921, 932 [home 

invasion robbery of a drug dealer is a crime with a particularly high risk of violence].) 
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As to the final Banks factor, defendant was in a position to either restrain his 

cohorts or render aide; defendant did neither. Defendant’s statements to the detective 

placed him near the trigger man. Defendant both testified and told the detective that he 

left Atencio as he laid on the ground. Although defendant was in a position to intervene, 

he neither restrained his cohorts nor rendered aide when the victims were injured. 

Based on the foregoing we find that there is substantial evidence to support the 

trial court’s finding that defendant was a major participant in the robbery/burglary. 

b. Defendant Acted With Reckless Disregard for Human Life

There was also substantial evidence that defendant acted with reckless indifference 

to human life. “Although we state these two requirements [major participation in the 

felony committed and reckless indifference to human life] separately, they often overlap. 

For example, we do not doubt that there are some felonies as to which one could properly 

conclude that any major participant necessarily exhibits reckless indifference to the value 

of human life. Moreover, even in cases where the fact that the defendant was a major 

participant in a felony did not suffice to establish reckless indifference, that fact would 

still often provide significant support for such a finding.” (Tison v. Arizona (1987) 481 

U.S. 137, 158, fn. 12.) 

As explained in detail ante, the evidence of defendant’s major participation was 

overwhelming and the evidence amply establishes reckless indifference to human life. 

For one, defendant was present when Atencio was murdered. “Presence at the scene of 

the murder is a particularly important aspect of the reckless indifference inquiry.” 

(People v. Garcia (2020) 46 Cal.App.5th 123, 148.) It is even more so when it is evident 
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that defendant was aware the robbery could be highly volatile; his cohorts were armed 

and they knew that Buckingham, a drug dealer, would also be armed, and when 

defendant and his cohorts have had escalating interactions with Buckingham. 

Moreover, defendant’s actions during the robbery are telling. When the detective 

asked what defendant was doing while Buckingham was being attacked by Fava, 

defendant responded that he was “trying to look for things of value or whatever, ya 

know,” and was “kinda lookin’ in there to see if [Buckingham’s] got any electronics or 

anything (inaudible),” and defendant “ya know, I coulnd’t really talk to the dude ‘cause 

he was getting beat up and . . . .” When the detective asked defendant if he said anything 

to Buckingham, defendant responded: “Yeah, I asked him, uh, I asked him, ya know, 

where’s your money and your drugs and ya know, something, um, he didn’t answer or 

anything. I don’t even know if he’s hearing what I’m saying, ya know, um, and at some 

point in time [Lewis] ends up in the room, too, and now they’re both beating 

[Buckingham] up . . . so I go back and I’m heading back toward the living room or 

whatever, to go wherever [Carr] is to make sure he’s okay or whatever and that’s when 

the gunshot just started going off.”

In sum, as noted ante—defendant was a major participant in the crime of 

robbery/burglary. Moreover, defendant, while he observed Fava and Lewis beating up 

Buckingham, showed no concern for the victim. All defendant wanted to do was to try to 

find money or drugs. Thereafter, after he saw that Atencio got shot, he made no effort to 

offer the victim any aid. We find that there is substantial evidence to support the trial 

court’s finding that defendant acted with reckless disregard for human life.
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DISPOSITION

The order denying defendant’s section 1170.95 petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

RAPHAEL

J.