Filed 10/12/23 P. v. Liva CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH LIVA,

Defendant and Appellant.

 B325320

 (Los Angeles County 

 Super. Ct. No. NA007529)

APPEAL from an order of the Superior Court of Los 

Angeles County. Richard M. Goul, Judge. Affirmed. 

Richard A. Levy, 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, Assistant 

Attorney General, Seth P. McCutcheon and William H. Shin, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * * * * *
2

Defendant and appellant Joseph Liva participated in the 

armed robbery of a bar during which his accomplice fatally shot 

one bar patron and injured two others. Defendant pled no 

contest to one count of first degree murder and was sentenced to 

25 years to life. After the passage of Senate Bill 1437 (2017–2018 

Reg. Sess.), defendant filed a petition for resentencing pursuant 

to Penal Code section 1170.95. Former section 1170.95 was

subsequently renumbered and recodified as section 1172.6 with 

no change in the text. (Stats. 2022, ch. 58, § 10.) For clarity, we 

refer to former section 1170.95 only by its new designation 

(section 1172.6). 

Defendant appeals from the denial of his resentencing 

petition, contending there is no substantial evidence supporting 

his guilt for murder as an accomplice under the law as amended 

by Senate Bill 1437; the court failed to consider that he was 17 at 

the time of the murder; the court erred in admitting his 

testimony before the Board of Parole Hearings; and cumulative 

error. 

Finding no error, we affirm. 

FACTUAL AND PROCEDURAL SUMMARY

In 1991, defendant pled no contest to first degree murder. 

(Pen. Code, § 187, subd. (a).) Defendant was sentenced to 

25 years to life in prison. The court awarded defendant 450 days 

of presentence custody credits and dismissed the remaining 

charges. 

In 2019, defendant filed, in propria persona, a petition for 

resentencing pursuant to section 1172.6 alleging he could not 

now be convicted of felony murder under the law as amended by 

Senate Bill 1437. The court appointed counsel for defendant and 

ordered the People to file a response. 
3

After the filing of initial briefs by counsel, a hearing was 

held on January 5, 2021. Defense counsel told the court 

defendant was 17 years old at the time of the 1991 murder and 

requested a hearing pursuant to People v. Franklin (2016) 

63 Cal.4th 261. The court granted defense counsel’s request to be 

appointed to represent defendant at a Franklin hearing in 

addition to handling defendant’s resentencing petition. 

Thereafter, the People conceded defendant had made a 

prima facie showing under section 1172.6 and was entitled to an 

evidentiary hearing. The parties filed supplemental briefing. 

The People submitted exhibits, including copies of the police 

reports from the 1991 investigation, a copy of the 1991 probation 

report, and the transcript of defendant’s May 21, 2015 hearing 

before the Board of Parole Hearings. The court scheduled the 

evidentiary hearing to take place on April 14, 2021, with the

Franklin hearing to follow. 

After several continuances, the hearing was held on 

April 25, 2022. Defendant was represented by counsel and

waived his right to be present.

The prosecution presented two witnesses: Sheri Ann 

Roberts, a bar patron who witnessed the robbery, and William C. 

MacLyman, a retired homicide detective with the Long Beach 

Police Department who investigated the robbery. 

Ms. Roberts testified that on the evening of February 12, 

1991, she got off work and went to the U.S.S. Someplace Bar in 

Long Beach. She took a seat at the bar and ordered dinner. 

Another patron, Shayne Shields, was seated about two feet away

from her. From her seat at the corner of the bar, she could see 

the rear entrance clearly, without any obstructions. She saw 

defendant and another man come in through the rear door. She 
4

recognized them both from the neighborhood and remembered 

they had both been in the bar before, asking for change. The man 

with defendant had something wrapped around his head like a 

turban and he was holding a handgun. Defendant also had 

something in his hand but Ms. Roberts could not say whether it 

was a gun. 

The man with the turban fired a shot into the air. Both he 

and defendant started yelling at everyone to get down on the 

floor. Defendant grabbed a pool cue, “slammed” it on one of the

pool tables and on the bar counter and continued yelling at 

everyone. The man with the turban “ripped” one patron off a bar 

stool, threw him to the ground and headed toward the cash 

register.

Ms. Roberts said defendant “was yelling at people the 

entire time.” Defendant “kind of coordinated all the activity that 

was going on” while his accomplice collected money from the cash 

register. Ms. Roberts heard a woman trying to tell defendant 

that another male patron was trying to get down on the floor and 

that he did not need to hit him so hard. She heard defendant 

continue to hit people with the pool cue, with some of them 

“making sounds of being hurt.” 

During the commotion, Mr. Shields, the patron who had 

been sitting near Ms. Roberts, told her to try to move toward the 

bathroom to hide. Mr. Shields was not completely down on the 

floor at that point, and the man with the turban turned toward 

him. After yelling at him again to get down, the man with the 

turban shot Mr. Shields in the back of the head. The gunman 

saw that Ms. Roberts was looking at him and pointed the gun at 

her. She feared he was going to shoot her too, as she crouched 

further down and put her hands over her head. She heard 
5

several more shots. Defendant yelled at the man with the turban

to hurry up, telling him it was time to go. Both men continued 

yelling as they fled out the back door. The whole incident took 

“just a few minutes.” 

Mr. Shields died from the gunshot wound to his head. Two 

other bar patrons received nonfatal gunshot wounds. 

About a week after the shooting, Detective MacLyman 

interviewed defendant while he was in custody at a juvenile 

facility on an unrelated charge. Defendant was 17 years old at 

the time. Detective MacLyman advised defendant of his rights. 

Defendant signed a waiver form acknowledging his rights and 

agreed to speak with the detective. 

Defendant told Detective MacLyman he had been at a 

party in Long Beach and met up with a friend who he knew by 

the moniker “Cap.” Cap’s real name was Faafatai Lulu. Cap 

asked defendant if he was “down” with pulling a robbery, and 

defendant said he was. Defendant said “being down with it”

meant agreeing to do it. Defendant also told Detective 

MacLyman that he and Cap had committed a robbery the day 

before. 

Defendant said he and Cap walked a few blocks to the 

U.S.S. Someplace Bar and entered through the back door. Cap 

had a shirt wrapped around his head and a handgun, which he 

fired into the air when they got inside and yelled at everyone to 

get down. Defendant grabbed a pool cue and hit a patron with it 

because he did not get down fast enough. Cap fired several more 

shots. Cap went to the register and collected money, while 

defendant went through three people’s wallets looking for money 

but did not find anything. Defendant said he and Cap then fled 

out the back door. 
6

The prosecution offered two exhibits: a diagram of the 

interior of the bar and the transcript of the 2015 hearing before 

the Board of Parole Hearings. Defendant objected to the 

admission of the transcript. Defendant did not present any 

evidence.

The hearing was resumed on August 31, 2022. After 

entertaining argument, the court denied defendant’s petition,

finding there was substantial evidence of defendant’s guilt as a 

major participant in the robbery who acted with reckless 

disregard for human life. 

This appeal followed. We granted defendant’s motion to 

augment the record with a copy of his resentencing petition.

DISCUSSION

1. Standard of Review 

We review for substantial evidence a trial court’s factual 

findings at an evidentiary hearing pursuant to section 1172.6, 

subdivision (d)(3). (People v. Henley (2022) 85 Cal.App.5th 1003, 

1017; People v. Mitchell (2022) 81 Cal.App.5th 575, 591, review 

den. Oct. 12, 2022, S276189 (Mitchell); People v. Ramirez (2021) 

71 Cal.App.5th 970, 985.) In conducting this review, “we

presume in support of the judgment the existence of every fact 

that can be reasonably deduced from the evidence, whether direct 

or circumstantial.” (Mitchell, at p. 591; accord, People v. Brooks

(2017) 3 Cal.5th 1, 57.) 

2. Substantial Evidence Supports the Trial Court’s

Factual Findings.

Under current law, felony murder liability may be imposed 

only if one of the following is proven beyond a reasonable doubt, 

“(1) The person was the actual killer. [¶] (2) The person was 

not the actual killer, but, with the intent to kill, aided, abetted, 
7

counseled, commanded, induced, solicited, requested, or assisted 

the actual killer in the commission of murder in the first degree. 

[¶] (3) The person was a major participant in the underlying 

felony and acted with reckless indifference to human life.” (Pen. 

Code, § 189, subd. (e); see also People v. Gentile (2020) 10 Cal.5th 

830, 842.)

The court here determined defendant remained guilty 

under current law because he was a major participant in the 

robbery who acted with reckless indifference to human life. 

Determining whether a defendant is a major participant who 

acted with reckless indifference to human life is a fact-intensive 

inquiry. Courts are guided in their analysis by the Supreme 

Court decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) 

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

elucidated what it means to be a major participant and, to a 

lesser extent, what it means to act with reckless indifference to 

human life, while Clark further refined the reckless indifference 

inquiry.” (People v. Strong (2022) 13 Cal.5th 698, 706–707.)

Relevant considerations for assessing major participant 

status are: (1) the defendant’s role in planning the crime(s), 

including whether the defendant supplied or used a lethal 

weapon; (2) the defendant’s awareness of the dangers the crime 

posed or past experience or violent nature of accomplices; 

(3) presence at the scene, including being in a position to 

facilitate or prevent the murder or render aid; and (4) the 

defendant’s conduct after the murder. (Banks, supra, 61 Cal.4th 

at p. 803.) “No one of these considerations is necessary, nor is 

any one of them necessarily sufficient. All may be weighed in 

determining the ultimate question.” (Ibid.) 
8

The considerations relevant to determining reckless 

indifference to human life are: (1) the defendant’s knowledge of 

weapons, and use and number of weapons; (2) physical presence 

at the crime and opportunities to restrain the crime and/or aid 

the victim; (3) duration of the felony; (4) the defendant’s 

knowledge of accomplice’s likelihood of killing; and (5) the 

defendant’s efforts to minimize the risks of the violence during 

the felony. (Clark, supra, 63 Cal.4th at pp. 618–622.) As with 

the major participant considerations, no one factor is necessary or 

dispositive. The court must make an individualized, factintensive inquiry and assess the totality of circumstances. (In re 

Scoggins (2020) 9 Cal.5th 667, 683.) 

Clark explained there was significant “overlap” in the 

factors relevant to determining both elements because “ ‘the 

greater the defendant’s participation in the felony murder, the 

more likely that he acted with reckless indifference to human 

life.’ ” (Clark, supra, 63 Cal.4th at p. 615, italics added.)

In denying defendant’s petition, the court said it found

defendant was a principal in the robbery and a “very direct 

participant.” The court acknowledged its consideration of the 

Banks and Clark factors and said the “most significant factor” to 

the court “was the fact that at the entry to the establishment 

gunshots were fired. It happens quickly. However, at that point 

this defendant, Mr. Liva, knew that there were guns and knew 

that they were being fired.” The court said defendant 

nevertheless chose to continue to actively engage in the robbery 

and assist his accomplice. The court noted defendant could have 

said “no” to the use of guns, could have fled at that point, or could 

have sought some form of assistance, but he chose instead “to 

continue his participation in the takeover robbery.” 
9

The court went on to explain that defendant, knowing his 

accomplice was armed and firing his gun, continued “to direct” 

the robbery in the words of Ms. Roberts, made no effort to deter 

his accomplice from shooting multiple patrons, and then fled the 

scene with him. 

Defendant says the court gave undue weight to the firing of 

shots by his accomplice as they entered the bar and minimized or 

failed to take into account how quickly everything happened, that

defendant did not plan the robbery, or personally use or supply 

the gun, and that he was not in a position to prevent his 

accomplice from shooting multiple patrons, which happened 

suddenly and in rapid succession. 

It is not our role to reweigh the evidence considered by the 

trial court. Our job is to determine whether substantial, credible 

evidence supports the court’s findings, indulging all reasonable 

inferences in the court’s favor. (Mitchell, supra, 81 Cal.App.5th

at p. 591, review den.) 

The record here shows that, after having committed a 

robbery together the day before, defendant and his accomplice

met up at a party and decided to commit another robbery. They 

then walked several blocks to a neighborhood bar, where, 

according to the testimony of Ms. Roberts, they engaged in 

coordinated behavior that appeared to be largely directed by 

defendant. While defendant’s accomplice went to the register, 

defendant yelled and terrorized the bar patrons by hitting them 

with a pool cue with such force that Ms. Roberts could hear it and 

the victims’ pained responses from her spot crouched in the 

corner. Once his accomplice started shooting patrons, defendant 

did not intercede but continued yelling and rifling through 
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several patrons’ wallets before yelling to his accomplice to hurry 

up. They then fled the scene together. 

Defendant’s violent participation in the robbery, 

threatening and hitting patrons with a pool cue while his 

accomplice collected cash from the register, heightened the risk of 

violence as it escalated the possibility that someone might panic, 

resist or attempt to flee. Defendant continued to pursue the 

objects of the robbery, rummaging through patrons’ wallets even 

after his accomplice started shooting, rather than try to 

deescalate the situation or render aid. The court’s findings are 

supported by substantial evidence.

Defendant contends the court made a material 

misstatement of fact that undercuts the validity of its findings. 

Defendant says the court referenced “guns” being fired when the 

evidence showed that only one gun was used by defendant’s 

accomplice. The court may have believed there was a possibility 

more than one gun was used during the robbery based on the 

testimony of Ms. Roberts who said that defendant “had 

something in his hand. I couldn’t say if it was a gun or not when 

he came in.” Whether or not the court believed defendant may 

have also wielded a gun, the court did not rest its decision on a 

finding that defendant personally used a gun. 

Defendant further argues the court’s finding of reckless 

indifference is flawed because the court failed to consider that he 

was only 17 at the time of the shooting. Defendant’s contention 

that the court failed to consider his age is based solely on the 

court having not expressly mentioned his age in reciting its 

findings. Defendant concedes that we ordinarily do not presume 

error, even from a silent record. (In re Julian R. (2009) 

47 Cal.4th 487, 499 [discussing general rule “ ‘ “that a trial court 
11

is presumed to have been aware of and followed the applicable 

law” ’ ”]; People v. Jones (2022) 86 Cal.App.5th 1076, 1092 [“In 

the usual case, the fact that a court did not specifically mention 

certain evidence does not mean that the court ‘ignored’ that 

evidence.”].) 

Defendant says however that the law regarding whether a 

court must consider age as a factor when determining reckless 

indifference was not well established at the time of the 

evidentiary hearing and we should not presume the court took 

his age into consideration. Defendant argues remand for a new 

hearing is warranted to allow the court the opportunity to 

expressly consider his age and how it impacts the reckless 

indifference inquiry. 

The court received defendant’s extensive package of 

material for the Franklin hearing and stated on the record it had 

read all of the parties’ submissions. The court acknowledged on 

the record that defendant was 17 at the time of the shooting. 

Nothing obliged the court to explain further how it weighed 

defendant’s age in its decision. There is no basis in this record

for us to find the court did not consider that defendant was 17 at 

the time of the crimes.

3. Defendant’s Testimony Before the Board of Parole 

Hearings Was Admissible. 

Defendant says the court prejudicially erred in admitting, 

over his objection, the 2015 transcript of his hearing before the 

Board of Parole Hearings. 

Numerous courts have concluded that a defendant’s prior 

statements at a parole board hearing are admissible at an 

evidentiary hearing pursuant to section 1172.6, 

subdivision (d)(3). (See, e.g., People v. Duran (2022) 
12

84 Cal.App.5th 920, 924, 927-932, review denied Jan. 11, 2023, 

S277507; Mitchell, supra, 81 Cal.App.5th at pp. 588–590, review

den.; People v. Anderson (2022) 78 Cal.App.5th 81, 89–93, review

den. July 27, 2022, S274826; People v. Myles (2021) 69 

Cal.App.5th 688, 699, 704–706, review den. Dec. 15, 2021, 

S271528.) 

We see no reason to depart from these well-reasoned 

decisions or to revisit this court’s decision in Mitchell. “[I]t is fair 

and indeed sensible to say a convicted person’s own words are 

pertinent when that person petitions for the benefit of 

resentencing.” (Mitchell, supra, 81 Cal.App.5th at p. 590, review 

den.) We find no error in the court’s consideration of defendant’s 

testimony before the Board of Parole Hearings. 

 Finally, because defendant has not shown any error, we 

reject defendant’s claim of cumulative error. 

DISPOSITION

The order denying defendant and appellant Joseph Liva’s

petition for resentencing is affirmed. 

GRIMES, Acting P. J. 

WE CONCUR: 

WILEY, J. 

VIRAMONTES, J.