Filed 12/7/23 P. v. Riley CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN ERICK RILEY,

Defendant and Appellant.

 B320009

 (Los Angeles County

 Super. Ct. No. A365309)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, Frederick N. Wapner, Judge. Affirmed.

Michael Allen, 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, Steven D. Matthews, Supervising 

Deputy Attorney General, and Ryan M. Smith, Deputy Attorney 

General, for Plaintiff and Respondent.

________________________
2

INTRODUCTION

In 1982 Steven Erick Riley was tried for the murder of 

Michael Fundick during a robbery. At the jury trial, an 

eyewitness testified she saw Riley “struggling” and “fighting”

with Fundick with his hands around Fundick’s pockets, causing 

Fundick to fall to the ground. Fundick died from head injuries 

consistent with a fall onto pavement or a blow to the head. The 

evidence indicated Riley acted alone.

The jury found Riley guilty of first degree murder, and he

was sentenced to an indeterminate prison term of 25 years to life. 

This court affirmed Riley’s conviction and sentence on direct 

appeal in People v. Riley (June 25, 1984), 2d Crim. No. 44019 

(unpub. opn.).

In 2019 Riley petitioned for resentencing under former 

Penal Code section 1170.95,1 now section 1172.6.

2 The People 

opposed his petition on the grounds Riley was the “actual killer”

of the victim. The superior court determined Riley was “the 

actual perpetrator” of the murder and denied Riley’s petition for 

failure to make a prima facie showing for relief. Riley appeals, 

arguing the record does not establish he was the actual killer as a 

matter of law. We affirm.

1 Statutory references are to the Penal Code.

2 In 2022 section 1170.95 was renumbered without 

substantive change. It is now section 1172.6. (See People v. 

Strong (2022) 13 Cal.5th 698, 708, fn. 2.)
3

FACTUAL AND PROCEDURAL BACKGROUND

A. The Facts at Riley’s Murder Trial

In 1981 Riley was charged with murder (§ 187), with the 

special circumstance allegation that it was committed during the 

commission of robbery (§ 190.2, subd. (a)(17)); robbery (§ 211); 

and assault by means of force likely to produce great bodily 

injury (§ 245, subd. (a)). The trial court later dismissed, on the 

People’s motion, the robbery and assault charges.

Riley went to trial on the murder charge. His first trial 

produced a hung jury. Just before the retrial, the court granted 

the People’s motion to dismiss the special circumstance 

allegation, leaving only the murder charge.

At the second trial, the People’s evidence showed Riley and

Fundick were seen talking at the Laurel Cafe, a bar on Skid Row, 

at 6:00 p.m.3 Half an hour later, an eyewitness saw Riley and 

Fundick “struggling” and “fighting” at the corner of 5th and Main 

Streets. Riley had his hands around Fundick’s pockets, and, 

although the eyewitness did not see Riley strike Fundick, she saw 

Fundick fall to the ground. After this altercation, Riley entered a 

3 Upon Riley’s request, the trial transcript was incorporated 

from the record in his direct appeal into the record in his 

resentencing appeal. Further, at the prima facie hearing and on 

appeal, Riley did not object to the introduction of facts from our 

previous appellate opinion. (See People v. Vance (2023) 

94 Cal.App.5th 706, 714 [affirming consideration of the facts from 

a prior appellate opinion when the petitioner did not object in the 

superior court].) Accordingly, we present the facts from our 

previous opinion affirming Riley’s conviction on direct appeal and 

from the clerk’s and reporter’s transcripts of Riley’s original trial.
4

restaurant on Main Street, where he displayed some folded cash 

and stated he “had just robbed an old man.”

Fundick was found lying face-down on the sidewalk, 

injured, with his pockets turned inside out and coins, a comb, and 

other personal items scattered on the ground around him. He 

died four days later from his injuries. The county medical 

examiner testified Fundick’s cause of death was “subarachnoid 

hemorrhage due to blunt force trauma, which was consistent with 

being hit by a fist and inconsistent with the head hitting the 

pavement.” A court-appointed pathologist testified, however,

that Fundick’s injuries “were consistent with his head hitting the 

pavement.”

At trial, Riley’s defense advanced several theories. Defense 

counsel acknowledged “an unfortunate scuffle that resulted in 

[Fundick’s] death,” but asserted Riley had not robbed Fundick 

and thus was not guilty of felony murder. Defense counsel 

argued “[t]here is no murder without a robbery,” and “if while 

Mr. Fundick were lying on the sidewalk somebody else came 

along and turned out his pockets, then somebody else is guilty of 

having robbed him and it is not Steven Riley.” Instead, according 

to the defense, Fundick’s injuries were “clearly an accident,” and 

Riley should be guilty of involuntary manslaughter at most. 

Defense counsel also highlighted the lack of evidence regarding

how Fundick “got from standing on the sidewalk to being facedown on the sidewalk,” suggested there were “lots of people 

around,” and argued to the jury that “[a]nybody could have” 

caused Fundick to fall and hit his head.
5

B. The Jury Instructions and Jury Verdict

After the close of evidence, the trial court instructed the 

jury on first degree murder (CALJIC 8.10), first degree felony 

murder (CALJIC 8.21), and involuntary manslaughter (CALJIC 

8.45). The jury also received an instruction on the proximate 

cause requirement for homicide: “To constitute murder or 

manslaughter there must be, in addition to the death of a human 

being, an unlawful act which was a proximate cause of that 

death. The proximate cause of a death is a cause which, in 

natural and continuous sequence, produces the death, and 

without which the death would not have occurred.”

The jury returned a general verdict finding Riley guilty of 

first degree murder. The trial court sentenced Riley to an 

indeterminate term of 25 years to life.

C. Riley’s Petition for Resentencing

In 2019 Riley filed a petition for resentencing under former 

section 1170.95, now section 1172.6. Riley’s petition averred he 

was convicted of murder under a felony-murder theory or the 

natural and probable consequences doctrine and could not be 

convicted after changes to section 189 made by Senate Bill 

No. 1437.

The People filed their opposition to Riley’s petition in 

September 2019 arguing, as relevant here, Riley was ineligible 

for relief under then-section 1170.95 as “the actual killer who 

personally struck the victim and killed him during the robbery.” 

In support, the People submitted this court’s 1984 unpublished 

opinion affirming Riley’s conviction and sentence.

Before counsel was appointed, in October 2019 Riley filed a 

response to the People’s opposition in pro per. Riley’s response
6

presented an alternate account of the altercation between Riley 

and Fundick, stating Riley was “violently accosted” by a man 

with a bottle of alcohol (presumably Fundick) yelling racial slurs 

and death threats, and Riley “threw one blow” in self-defense 

before walking away.

In November 2019 the superior court appointed counsel for 

Riley. Through his appointed counsel, Riley filed a second 

response to the People’s opposition in January 2022. Riley’s 

response sought to introduce Riley’s version of events in his 

earlier filing as new evidence at the prima facie hearing. It 

further argued Riley could not be convicted of murder after the 

changes made by Senate Bill No. 1437 because he lacked intent 

to kill and did not directly cause the injuries leading to Fundick’s 

death.

The superior court held its prima facie hearing on Riley’s 

petition in April 2022. On the day of the hearing, the People filed 

a supplemental opposition to Riley’s petition, arguing the jury 

instructions established Riley was the actual killer as a matter of 

law, and Riley’s claim of new evidence was better suited for a 

habeas petition. The People submitted the jury instructions from 

Riley’s trial in support.

At the hearing, the court asked Riley’s counsel: “[Riley] 

was the actual person who inflicted the injury that caused the 

death, correct?” Riley’s counsel acknowledged, “That is the way it 

was prosecuted, yes.” The superior court then denied Riley’s 

petition for failure to state a prima facie case, stating: “[Riley] is 

the actual perpetrator of this offense. And it is outside the scope 

of 1170.95 to reopen this and say, well, now it’s self-defense.”

Riley filed a timely appeal.
7

DISCUSSION

On appeal, Riley argues the record does not establish as a 

matter of law he was the actual killer, and thus his petition for 

resentencing warrants an evidentiary hearing.

A. Standard of Review

“We independently review a trial court’s determination on 

whether a petitioner has made a prima facie showing” under 

section 1172.6. (People v. Harden (2022) 81 Cal.App.5th 45, 52

(Harden).) “‘A denial at that stage is appropriate only if the 

record of conviction demonstrates that “‘the petitioner is 

ineligible for relief as a matter of law.”’” (People v. Ervin (2021) 

72 Cal.App.5th 90, 101.)

B. Legal Background

In 2018, through Senate Bill No. 1437, the Legislature 

restricted the scope of murder liability, including liability for 

felony murder under section 189. (People v. Lewis (2021) 

11 Cal.5th 952, 957 (Lewis).) “Penal Code section 189, as 

amended, now limits liability under a felony-murder theory” to 

(1) “actual killers;” (2) those who, with the intent to kill, aid or 

abet the actual killer; and (3) major participants in the 

underlying felony who acted with reckless indifference to human 

life. (People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).)

The Legislature also created in section 1172.6 a “special 

procedural mechanism for those convicted under the former law 

to see retroactive relief under the law as amended.” (Strong, 

supra, 13 Cal.5th at p. 708.) Under section 1172.6, “‘the process 

begins with the filing of a petition containing a declaration that 
8

all requirements for eligibility are met’ [citation], including that 

‘[t]he petitioner could not presently be convicted of murder or 

attempted murder because of changes to [Penal Code] 

Section 188 or 189 made effective January 1, 2019,’ the effective 

date of Senate Bill 1437.” (Strong, at p. 708; § 1172.6, subd. 

(a)(3).) “Additionally, the petition shall state ‘[w]hether the 

petitioner requests the appointment of counsel.’” (Lewis, supra,

11 Cal.5th at p. 960; § 1172.6, subd. (b)(1)(C).)

Once a section 1172.6 petition is filed, “the trial court must 

appoint counsel for the petitioner, if requested, and determine, 

after the opportunity for briefing and a hearing, whether the 

defendant has made a prima facie case for relief under section 

1172.6.” (People v. Pickett (2023) 93 Cal.App.5th 982, 988, review 

granted October 11, 2023, S281643; § 1172.6, subds. (b)(3), (c).) A 

petition will raise a prima facie case for relief with “a showing 

that the petitioner was convicted of murder, attempted murder, 

or manslaughter under a theory no longer valid under the 

amended Penal Code.” (People v. Lee (2023) 95 Cal.App.5th 1164, 

1174.) If a petitioner makes a prima facie showing, “the judge 

must issue an order to show cause and hold ‘a hearing’” to 

determine whether the petitioner is entitled to resentencing 

relief. (People v. Clements (2022) 75 Cal.App.5th 276, 291; 

§ 1172.6, subds. (c), (d).)

When assessing a petitioner’s prima facie showing, the 

superior court examines the record of conviction but should not

“engage in ‘factfinding involving the weighing of evidence or the 

exercise of discretion.’” (Lewis, supra, 11 Cal.5th at p. 972.) The 

superior court accepts the “‘“petitioner’s factual allegations as 

true and makes a preliminary assessment regarding whether the 

petitioner would be entitled to relief if his or her factual 
9

allegations were proved.”’” (People v. Patton (2023) 

89 Cal.App.5th 649, 656, review granted June 28, 2023, 

S279670.) But “‘if the record, including the court’s own 

documents, “contain[s] facts refuting the allegations made in the 

petition,” then “the court is justified in making a credibility 

determination adverse to the petitioner”’” and denying the 

petition at the prima facie stage. (Lewis, at p. 971.)

C. The Trial Court Did Not Err by Ruling that Riley Was the 

“Actual Killer” and Denying His Section 1172.6 Petition

“As a matter of law, resentencing relief under 

section 1172.6 is not available to an ‘actual killer,’” because an 

“actual killer” remains liable for felony murder after the 

amendments to section 189. (People v. Garcia (2022) 

82 Cal.App.5th 956, 973.) An “‘actual killer’” is “the actual 

perpetrator of the killing, i.e., the person (or persons) who 

personally committed the homicidal act.” (People v. Vang (2022) 

82 Cal.App.5th 64, 88; accord, Garcia, at p. 970 [actual killer is 

“the person who ‘personally’ killed the victim”]; People v. Lopez

(2022) 78 Cal.App.5th 1, 20 (Lopez) [same].) By contrast, a 

person who only “commits an act that is the proximate cause of 

the victim’s death” may be liable for felony murder, but he is not 

an “actual killer” without personally killing the victim. (Lopez, at 

p. 17.) 

The superior court denied Riley’s petition because it 

determined he was the “actual killer” after his counsel conceded 

that was how the case was presented to the jury by the 

prosecution, i.e., that Riley was the “actual person who inflicted 

the injury that caused [Fundick’s] death.” But according to Riley,

despite this concession, the record does not establish he was the 
10

actual killer. Instead, he argues, the record leaves open the 

possibility that his conduct was simply the proximate cause of 

Fundick’s death.

Riley relies heavily on Lopez, supra, 78 Cal.App.5th 1, 

arguing an evidentiary hearing is necessary to determine 

whether he was the actual killer. Lopez examined whether a 

section 1172.6 petitioner convicted of murder was necessarily 

convicted as an “actual killer.” Like Riley, the petitioner in Lopez

was charged with the murder of a victim during a robbery and 

“prosecuted solely under the theory he was the actual killer and 

committed the robbery alone.” (Id. at p. 15.)

Lopez testified at trial that he and his drug dealer, Ivan 

Argueta, drove to the victim’s apartment to help Argueta “‘move 

out’” after a fight with the victim, Argueta’s boyfriend. (Id. at

p. 9.) Lopez testified he remained in the living room of the 

apartment, drinking a glass of water, while Argueta was 

“screaming” and “moving around” elsewhere in the house. (Ibid.) 

Lopez and Argueta then left with belongings from the apartment; 

the victim was later found dead in the bedroom. (Id. at pp. 6-7, 

9.) Noting the lack of “eyewitnesses to the murder” or “any direct 

evidence of who bludgeoned the victim,” the Lopez court 

concluded the jury could have convicted Lopez on a theory of 

felony murder without finding Lopez personally killed the victim.

(Id. at p. 19.) The court emphasized the jury instructions 

prescribed liability for felony murder if the defendant “committed 

robbery and ‘[w]hile committing robbery, the defendant caused 

the death of another person.’” (Id. at p. 16, italics omitted.) The 

jury instructions further explained: “‘An act causes death if the 

death is the direct, natural, and probable consequence of the act 

and the death would not have happened without the act.’” (Ibid.) 
11

On the basis of these instructions, Lopez reasoned, “[t]he jury 

might have found defendant, though not the actual killer, 

participated somehow in the home invasion robbery, and the 

victim’s death was the direct, natural, and probable consequence 

of an act committed in the course of his participation.” (Id. at 

p. 20.)4 

Unlike Lopez, the record of conviction in Riley’s case 

establishes Riley was the actual killer as a matter of law because 

there was no evidence at trial of an accomplice who could have 

been the actual killer. The defendant in Lopez argued at trial 

that he was present at the scene of the crime, but his accomplice 

Argueta was the actual killer. (Lopez, supra, at 78 Cal.App.5th

at p. 15.) The Lopez court recognized the jury might have

accepted Lopez’s theory that Argueta was the actual killer and 

still convicted Lopez of felony murder based on his involvement 

in the robbery. (Id. at p. 20.) Riley, by contrast, presented no 

equivalent defense theory. Riley maintains there is still “the 

possibility that someone other than Riley knocked the victim to 

the ground and caused his death.” Riley’s only support is his trial 

defense counsel’s closing argument that “‘[t]here is no evidence as 

to how Mr. Fundick got from standing on the sidewalk to being 

4 The People rely on Harden, supra, 81 Cal.App.5th 45,

where the court held petitioner was the “actual killer,” in part

because the jury convicted her of felony murder using a jury

instruction stating that “‘every person who unlawfully kills a 

human being . . . is guilty of “murder.”’” (Id. at pp. 54-55.) Riley 

responds that the jury at his trial did not receive the same 

version of the jury instruction as in Harden. Because we agree 

with Riley on this point, we do not rely on the People’s Harden 

argument.
12

face-down on the sidewalk’” and there were “‘lots of people 

around before, during, and after. Anybody could have done it.’”

But, as noted above, the record of conviction contains no 

evidence of an accomplice who might have been the actual killer. 

(See, e.g., People v. Bodely, supra, 95 Cal.App.5th at p. 1201

[petitioner convicted of felony murder was “actual killer” as a 

matter of law because “[t]he evidence at trial revealed no 

indication of any accomplice”]; People v. Pickett, supra, 

93 Cal.App.5th at p. 990 [same, where “there is nothing to 

suggest that any other person was involved in the incident”]; 

People v. Patton, supra, 89 Cal.App.5th at p. 657 [same, 

because“[i]n the trial court, Patton never offered any theory to 

support his implicit contention now that he was an accomplice 

and not the person who actually shot [the victim]”]; People v. 

Delgadillo (2022) 14 Cal.5th 216, 233 [affirming petitioner was 

“actual killer” as a matter of law where “the record here makes 

clear that Delgadillo was the actual killer and the only 

participant in the killing”].) And, even before the amendments 

made by Senate Bill No. 1437, the jury could not have convicted 

Riley on a felony murder theory for the actions of an unknown 

“actual killer” entirely unassociated with Riley. (People v. Pulido

(1997) 15 Cal.4th 713, 719 [describing felony murder accomplice 

liability, prior to Senate Bill No. 1437, as “limited” to “killings 

occurring while the killer was acting in furtherance of a criminal 

purpose common to himself and the accomplice, or while the 

killer and accomplice were jointly engaged in the felonious 

enterprise”].) By finding Riley guilty of first degree murder, the 

jury rejected Riley’s unknown-killer defense and convicted Riley

as the actual and sole killer.
13

The superior court properly denied Riley’s section 1172.6 

petition for failure to make a prima facie showing.

DISPOSITION

The order denying the petition for resentencing under 

section 1172.6 is affirmed.

MARTINEZ, J.

We concur:

SEGAL, Acting P. J.

EVENSON, J.*

* Judge of the Alameda County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.