Filed 7/29/21 P. v. Bloxton CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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.

DANTE LAVELL BLOXTON, 

Defendant and Appellant.

 B307556

 (Los Angeles County

 Super. Ct. No. NA018339)

APPEAL from an order of the Superior Court of Los 

Angeles County, Gary J. Ferrari, Judge. Affirmed.

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Matthew Rodriguez, Acting Attorney General, Rob Bonta, 

Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Susan Sullivan Pithey, Assistant Attorney General, 

Wyatt Bloomfield and Nicholas J. Webster, Deputy Attorneys

General, for Plaintiff and Respondent.

* * * * * *

Dante Lavell Bloxton (defendant) appeals the trial court’s 

denial of his petition for relief under Penal Code section 1170.95.1 

We conclude there was no error and affirm the order. 

FACTS AND PROCEDURAL BACKGROUND

I. Facts2

A. The underlying crime

On a Sunday night in August 1998, defendant, Efren 

Bullard (Bullard) and others approached two men who were 

using a gas station pay phone in Long Beach, California. 

Defendant and Bullard had firearms. With guns drawn, 

defendant and his companions demanded that the men hand over 

their valuables. Defendant and his group soon realized that the 

two men had driven separate cars—namely, a Bronco and a 

Camaro. From the Bronco, the group pulled out one man’s wife 

by her hair and demanded her jewelry and money; they then 

proceeded to ransack the Bronco. After a third man got out of the 

Camaro, defendant and his group lined up all four victims by the 

Bronco and demanded that they turn out their pockets. One 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.

2 We draw these facts from our prior, unpublished appellate 

opinion affirming defendant’s conviction. (People v. Bloxton (July 

23, 1998, B113892).)
3

member of the group commented that he was “going to kill all of 

the victims because they were Mexican.” When the robbers went 

to ransack the Camaro, they discovered David Hoppes (Hoppes) 

inside the car. Defendant and Bullard pulled Hoppes from the 

Camaro and started to beat him and to go through his pockets. 

When Bullard announced that he was going to kill Hoppes 

because he “was White,” defendant responded, “I don’t care.” 

Moments later, Bullard shot Hoppes in the leg and, after Hoppes 

collapsed and started to crawl away, defendant and Bullard 

walked up to him in tandem. While defendant and Bullard stood

over Hoppes, Bullard shot him repeatedly. The multiple gunshot 

wounds were fatal. The robbers then ran off. 

B. Prosecution, conviction and appeal

The People charged defendant with (1) the murder of 

Hoppes (§ 187, subd. (a)), and (2) five counts of second degree 

robbery (§ 211). As to the murder, the People alleged a special 

circumstance—namely, that it was committed in the course of a 

robbery (§ 190.2, subd. (a)(17)(A)), which could be found true only 

if defendant was a major participant in the robbery and acted 

with reckless indifference to human life. (Id., subd. (d).) The 

People further alleged that defendant and Bullard “personally 

use[d] a firearm” (§ 12022.5, subd. (a)), and that a principal was 

“armed with a firearm” (§ 12022, subd. (a)(1)). 

A jury convicted defendant of murder and four counts of 

second degree robbery, and found true all of the allegations. 

The trial court sentenced defendant to prison for life 

without the possibility of parole (LWOP) plus 15 years. 

Specifically, the court sentenced defendant to LWOP plus five 

years (for the firearm enhancement) on the murder count, and a 

consecutive 10 years for one of the second degree robbery counts 
4

(comprised of base sentence of five years plus five years for the 

firearm enhancement). The court stayed or concurrently ran the 

remaining sentences. 

Defendant appealed his conviction and we affirmed in an 

unpublished opinion.

II. Procedural Background

On December 24, 2018, defendant filed a petition seeking 

resentencing for the murder conviction under section 1170.95.

3

The court appointed counsel for defendant, and ordered the 

parties to submit further briefing. Following a hearing, the trial 

court “summarily denied” defendant’s petition. The court found 

that defendant had not “establish[ed] a prima facie case for relief” 

under section 1170.95 because one of the elements of that prima 

facie case—namely, that defendant could not be convicted of first

degree murder under the amended murder statute—was 

foreclosed by “the jury[’s finding] beyond a reasonable doubt [that 

defendant] was a major participant in the underlying felony 

[who] acted with reckless indifference to human life.”

Defendant filed this timely appeal. 

DISCUSSION

Defendant argues that the trial court erred in denying his 

section 1170.95 petition (and thereby violated due process) 

because the jury’s prior special circumstance finding does not 

3 The petition for section 1170.95 relief was included within 

a petition for a writ of habeas corpus that sought to vacate his 

murder conviction under People v. Chiu (2014) 59 Cal.4th 155. 

Defendant filed a second petition for a writ of habeas corpus on 

January 28, 2020, seeking a hearing to preserve evidence for a 

future juvenile offender parole hearing under People v. Franklin

(2016) 63 Cal.4th 261. Neither petition is before us in this 

appeal.
5

preclude him from making his prima facie case under section 

1170.95. Because this argument turns on questions of statutory 

construction and the application of law to undisputed facts, our 

review is de novo. (People v. Blackburn (2015) 61 Cal.4th 1113, 

1123; Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 

1014, 1018.)

I. Effect of Jury’s Special Circumstance Finding

Section 1170.95 authorizes a defendant “convicted of felony 

murder or murder under a natural and probable consequences 

theory” to vacate his murder conviction if, as a threshold matter, 

he makes a “prima facie showing” of entitlement to relief. 

(§ 1170.95, subds. (a) & (c).) This, in turn, requires a showing 

that, among other things, he “could not be convicted of first or 

second degree murder” under the amendments to the murder 

statutes that became effective on January 1, 2019. (Id., subd. 

(a)(3).) These statutes, even as amended, still authorize a 

murder conviction based on a theory of vicarious liability if the 

defendant “was a major participant in the underlying felony and 

acted with reckless indifference to human life . . . .” (§ 189, subd. 

(e)(3).) 

Applying these statutes, the trial court properly concluded 

that defendant had not made a prima facie showing of his 

entitlement to relief under section 1170.95. That is because the 

jury in his case, by virtue of finding the special circumstance 

allegation to be true, necessarily found that defendant was a 

major participant in the underlying felony and acted with 

reckless indifference to human life. As we held in People v. 

Nunez (2020) 57 Cal.App.5th 78, 93-97 (Nunez), review granted 

January 13, 2021, S265918, this prior finding renders defendant 

not eligible for relief under section 1170.95 as a matter of law. 
6

(Accord, People v. Simmons (2021) 65 Cal.App.5th 739, 746-750; 

People v. Jones (2020) 56 Cal.App.5th 474, 482, review granted 

Jan. 27, 2021, S265854; People v. Allison (2020) 55 Cal.App.5th 

449, 457; People v. Gomez (2020) 52 Cal.App.5th 1, 14-17, review 

granted Oct. 14, 2020, S264033; People v. Galvan (2020) 52 

Cal.App.5th 1134, 1141-1143, review granted Oct. 14, 2020, 

S264284; but see People v. Arias (July 22, 2021) __Cal.App.5th__ 

[2021 Cal.App.Lexis 597], *25-*26; People v. Pineda (July 19, 

2021) __Cal.App.5th__ [2021 Cal.App.Lexis 586], *1-*2; People v. 

Gonzalez (2021) 65 Cal.App.5th 420, 425; People v. Torres (2020) 

46 Cal.App.5th 1168, 1179-1180, review granted June 24, 2020, 

S262011; People v. Smith (2020) 49 Cal.App.5th 85, 93-94, review 

granted July 22, 2020, S262835; People v. York (2020) 54 

Cal.App.5th 250, 258-263, review granted Nov. 18, 2020, 

S264954; People v. Harris (2021) 60 Cal.App.5th 939, 956-958, 

review granted Apr. 28, 2021, S267802; People v. Secrease (2021) 

63 Cal.App.5th 231, 236, 247 (Secrease).)

Defendant responds that Nunez is wrongly decided 

because, as the cases disagreeing with Nunez have explained, the 

jury’s prior special circumstance (1) has been rendered 

meaningless by two Supreme Court decisions—People v. Banks

(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 

Cal.4th 522 (Clark)—that came out after the jury’s verdict in this 

case, and which altered the manner in which appellate courts are 

to review this particular special circumstance for substantial 

evidence, and (2) “relates [in any event] only to punishment” and 

thus cannot “stand in the way of eligibility” vis-à-vis defendant’s

underlying conviction. Neither argument undermines Nunez, 

which rests on the rationale that the jury’s prior special 

circumstance finding remains valid—and thus remains a basis 
7

for summarily denying relief under section 1170.95—unless and 

until the defendant successfully overturns that finding in a 

habeas petition. (Nunez, supra, 57 Cal.App.5th at pp. 93-97.) 

Because defendant has not yet done so, the jury’s prior special

circumstance finding precludes relief under section 1170.95 as a 

matter of law.

II. Continued Validity of the Jury’s Special Verdict 

Finding

Even if we were to hedge our bets and not follow Nunez in 

light of the deep split of authority on the question pending before 

our Supreme Court, our task would be to undertake for ourselves 

the task that Nunez entrusts to a trial court considering a 

subsequent habeas corpus petition—that is, evaluating whether 

the jury’s special circumstance finding is supported by 

substantial evidence through the prism of Banks and Clark. 

(Secrease, supra, 63 Cal.App.5th at p. 255 [so holding].) 

Defendant disagrees, arguing that the very need for Banks and 

Clark review renders the prior special circumstance finding a 

nullity—and outside the scope of the law of the case and 

collateral estoppel doctrines—because the issue decided by the 

jury (which did not account for Banks and Clark) is not the same 

as the issue before us now (which does account for Banks and 

Clark). We are not persuaded, because a ruling by this court that 

the special circumstance finding is valid under Banks and Clark

validates the prior special circumstance finding. Thus, we turn 

to evaluating whether substantial evidence supports the prior 

special circumstance finding. That evaluation leads to the 

conclusion that the jury’s finding must stand, and that relief 

under section 1170.95 is accordingly unavailable to defendant as 

a matter of law. Because the finding that renders defendant 
8

ineligible for relief—like the special circumstance itself—requires 

proof beyond a reasonable doubt that defendant (1) “was a major 

participant in the underlying felony” and (2) “acted with reckless 

indifference to human life,” we separately evaluate the continued 

viability of each element through the Banks and Clark prism.

A. Major participant

Under Banks and Clark, a “major participant” in a robbery 

is someone whose “personal involvement” is “substantial”; such a 

participant “need not be the ringleader,” but his involvement 

must be “greater than the actions of an ordinary aider and 

abettor.” (Banks, supra, 61 Cal.4th at pp. 801-802; People v. 

Williams (2015) 61 Cal.4th 1244, 1281.) Courts are to examine 

the totality of the circumstances when evaluating the extent of 

participation, including several factors our Supreme Court 

identified in Banks as relevant but not dispositive on the issue: 

(1) the defendant/aider and abettor’s role in planning the robbery; 

(2) his role in supplying or using lethal weapons; (3) his 

awareness of the “particular dangers posed by the nature of the 

crime, the weapons used, or past experience or conduct of the 

other participants”; (4) his presence at the scene of the killing 

and thus whether he was “in a position to facilitate or prevent the 

actual murder”; and (5) his actions after the use of lethal force. 

(Banks, at p. 803; Clark, at p. 611.)

Substantial evidence supports the finding that defendant 

was a major participant even when applying the heightened

standard set forth in Banks and Clark. Although the facts do not 

disclose defendant’s role in planning the robbery or in supplying 

the two guns used during the robbery, the jury found that he was 

one of only two members of a larger group who was “armed with” 

and “personally used” a firearm, and he used that firearm to 
9

order the victims to hand over their valuables. Although the 

evidence does not disclose whether defendant had witnessed his 

cohorts engaging in violence on prior occasions, defendant did see 

them—on this occasion—toting guns, pulling one victim out of 

the car by her hair and beating up another. Defendant was also 

present at the scene the whole time, including when his cohorts 

threatened to kill four of the robbery victims because they “were 

Mexican” and Hoppes because he “was White,” and thus was “in a 

position to facilitate or prevent the actual murder.” Indeed, 

defendant responded to Bullard’s announcement of his intent to 

kill Hoppes—not by saying, “Don’t”—but instead by saying, “I 

don’t care.” And after Bullard shot Hoppes once in the leg, 

defendant did not take any action or say anything to discourage 

Bullard from making good on his threat to kill the “White” guy; 

instead, he walked with Bullard up to Hoppes so that Bullard 

could shoot Hoppes to death. In sum, defendant played an 

integral role in the robbery of the four victims, one that was more 

extensive than most of the other robbers.

B. Reckless indifference to human life

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 

p. 801, quoting People v. Estrada (1995) 11 Cal.4th 568, 577, 

quoting Tison v. Arizona (1987) 481 U.S. 137, 157.) 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 
10

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 

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.)
11

Substantial evidence supports the finding that defendant 

acted with reckless indifference to human life even when 

applying the heightened standard set forth in Banks and Clark. 

Although defendant’s awareness that Bullard 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 that guns would be used, but he and Bullard each 

had their own gun, at least one of those guns was loaded, and 

defendant and Bullard induced the victims to part with their 

valuables by displaying those guns. As noted above, defendant 

was physically present the entire time, and thus had ample time 

to restrain Bullard from shooting Hoppes or to aid Hoppes. 

Defendant did none of those things. Indeed, when Bullard 

announced his intention to kill Hoppes merely because of his 

race, defendant’s response was the epitome of reckless 

indifference—he said, “I don’t care.” The interaction between 

defendant’s group and the victims lasted several minutes, as the 

robbers shook down the two men at the pay phone, dragged the 

woman out of the Bronco, corralled all of the victims, and then 

found, beat and shot Hoppes. Although, as noted above, there 

was no evidence that defendant was aware of Bullard’s or his 

other cohort’s propensity for violence based on prior incidents, 

defendant certainly witnessed it over the course of the robbery in 

this case. And defendant made absolutely no effort to minimize 

the risk of violence during the robbery.
12

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST