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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE

,

Plaintiff and Respondent

,

v.

STEVEN ERICK RILEY

,

Defendant and Appellant

. B 320009

(Los Angeles County Super. Ct. No. A365309)

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County

, Fred erick 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. T he 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 t he record does not establish he was the actual killer as a matter of law. We affirm

.

1 S tatutory references are to the Penal Code.

2 In 2022 section 1170.95 was renumbered without substantive change . I t 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 co mmitted 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 ch arges. Riley went to trial on the murder charge. His first trial produced a hung jury. Just before the re trial, the court granted the People’s motion to dismiss the special circumstance allegatio n, 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 H alf an hour later, a n eye witness saw Riley and
Fundick “struggling” and “fighting” at the corner of 5th and Main
Stre ets

. Riley had his hands around Fundick’s pockets , and, although the eye witness did not see Riley strike Fundick, she saw
Fundick fall to the ground. After this altercation, Rile y 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

prev ious 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, w e present the facts from our previo us 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

a nd 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 inju ries

. T he 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 a dvanced several theories. D efense
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 face

down 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 continuo us 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 arguin g , as relevant here

, Riley was ineligible
for relief under then

- section 1170.95 as “ the actu al 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 response6

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 slur s 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 int ent 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, a rguing 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 peti tion 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, R iley argue s 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. 1 437, the Legislature restricted the scope of murder liability, including liability for felony murder under section 189 . ( People v. Lewis (2021)

11 Cal.5 th 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 participant s in the underlying felony who acted with reckless indifference to human
life. ( People v. Strong (2022) 13 Cal.5th 698, 707

- 70 8 ( Strong ) .)
Th e 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 de claration that8

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

117 2.6.” ( 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 m urder, 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 a ssessing a petitioner’s prima facie showing

, the superior court examines the record of conviction but should not “engag e in ‘factfinding involving the weighing of evidence or the exercise of discretion.’” ( Lewis

, supra , 11 Cal.5th at p . 972.) The superior court accept s the “‘“petitioner’s factual allegations as
true and make s a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual9

allegations were proved.”’” ( People v. Patton (2023)
89 Cal.App.5th 649, 656 , rev iew 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 t o section 189. ( People v. Garcia (2022)
82 Cal.App.5 th 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.5 th 64, 88; ac cord, Garcia , at p. 970 [ actual killer is “the person who ‘personally’ killed the victim” ] ; People v. Lopez (2022) 78 Cal.App.5 th 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 kill ing the victim . ( Lopez , at

p. 1 7 .) 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 a ccording to Riley, despite this concession, the record does not establish he was the10

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.5 th 1
, arguing an evidentiary hearing is necessary to determine
whether he wa s 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 w ith 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.) T he court emphasized the jury instructions prescribed liability for felony murder if the defendant “committed

r obbery 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 th e 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 probabl e 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 wa s 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.5 th at p. 15.) The Lopez court recognized the jury might have accept ed Lopez’s theory that Argueta was the actual killer and
still convict ed 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 bec ause 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

ver sion 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 rev ealed 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 k iller” 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 felon y 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 f

inding Riley guilty of first degree murder, the jury reject ed 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.

DIS POSITION

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.