Filed 5/18/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

DERECK FLOURNOY 

OWENS, JR.,

 Defendant and Appellant.

2d Crim. No. B310427

(Super. Ct. No. SM105565)

(Santa Barbara County)

This case is a perfect illustration of a person not entitled to 

Penal Code section 1170.95 relief.1 Dereck Flournoy Owens, Jr. 

appeals from the trial court’s denial of his petition for 

resentencing following an evidentiary hearing. He contends 

there was insufficient evidence he acted with reckless 

indifference to human life when he participated in a brutal “takeover” robbery/murder. We affirm.

1 All future statutory references are to the Penal Code.
2

FACTS AND PROCEDURAL HISTORY2

On August 8, 1997, appellant and three other men 

committed a robbery at the Vandenberg Federal Credit Union in 

Lompoc. All four men used firearms. One of appellant’s 

accomplices, Bowen, took about $12,000 from the teller drawers 

of two tellers. Another accomplice, Adams, removed $200 from 

the hand of a third teller. Appellant, displaying a .38 caliber 

firearm, entered the office of a bank credit counselor and ordered 

her and a customer to get on the floor. When they failed to 

respond, appellant cocked his pistol and repeated his demand. 

The credit counselor and customer then complied with his 

demand. 

Moments later, one of appellant’s accomplices, Mitchell,

shot a man in the leg as he entered the bank. Mitchell then

fatally shot Christine O. in the back as she attempted to run from 

the bank towards her parked car where her 11-year-old son was 

waiting. After the shootings, appellant and his accomplices ran 

out of the credit union. As they ran past Christine O.’s body on 

the sidewalk, Bowen stooped down and took her handbag. The 

four men fled. A month later appellant turned himself in to the 

police and confessed. 

2 We granted appellant’s request for judicial notice of the 

prior appellate record, People v. Owens, B130064. (Evid. Code, §

452, subd. (d).) We summarize these facts from our prior, 

unpublished opinion. (People v. Owens (Aug. 17, 2000, B130064)

(Owens).)
3

Verdict and Sentencing

A jury found appellant guilty of first degree murder (§§ 187, 

subd. (a), 189), second degree commercial burglary (§ 459), 

assault with a firearm (§ 245, subd. (a)(2)), and three counts of 

robbery (§ 211). The jury also found true that appellant 

personally used a firearm as to each offense (§ 12022.5, subd. (a)). 

The jury was unable to reach a verdict on the robbery-murder 

special circumstance allegation. (§ 190.2, subd. (a)(17).) The trial 

court dismissed that allegation, and the People elected not to 

retry it. The trial court sentenced appellant to state prison for a 

total term of 48 years, 8 months to life.

We affirmed appellant’s judgment in an unpublished 

opinion. (Owens, supra, B130064.) 

Section 1170.95 Proceedings

In 2019, appellant filed a petition for resentencing. The 

trial court appointed counsel, issued an order to show cause, 

received briefing, and conducted an evidentiary hearing. (§ 

1170.95, subds. (c), (d)(1).)

At the hearing, appellant conceded that he aided and 

abetted in the robbery, but argued that he was not a major 

participant who acted with reckless indifference citing People v.

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

Cal.4th 522 (Clark), and In re Scoggins (2020) 9 Cal.5th 667 

(Scoggins).3 He also argued the relevance of his youth, age 19, at 

the time of the robbery.

3 The Banks, Clark, and Scoggins factors are derived from 

the United States Supreme Court’s death penalty opinions 

in Tison v. Arizona (1987) 481 U.S. 137 (Tison) and Enmund v. 

Florida (1982) 458 U.S. 782.
4

Neither party presented new evidence at the hearing. The

prosecution and the defense relied exclusively on the record of 

conviction and the presentence probation report. Appellant did 

not object. The trial court also reviewed the surveillance video of 

the robbery, the transcript from the original trial, appellant’s 

recorded statements made to the police, the sentencing 

memorandum, and the court file. 

Trial Court Order

The trial court issued a comprehensive and well-written 20-

page order denying relief. It could serve as a model of how a trial 

court should make a written ruling. It preliminarily addressed 

three procedural issues: (1) whether the prosecution’s burden of 

proof at the hearing was “substantial evidence” or “beyond a 

reasonable doubt” pursuant to section 1170.95, subdivision (d)(3); 

(2) whether section 1170.95 permits appellant to challenge the 

nature of his first degree felony murder conviction or whether the 

proper procedural mechanism is a writ of habeas corpus; and (3) 

whether the jury’s inability to reach a verdict on the robberymurder special circumstance allegation is dispositive in the 

present context. 

First, the trial court applied the more stringent, “beyond a 

reasonable doubt” burden of proof, which has subsequently been 

clarified as the proper burden of proof required during the 

evidentiary hearing pursuant to section 1170.95, subdivision 

(d)(3), as amended by Senate Bill No. 775 (2021-2022 Reg. Sess.). 

(Stats. 2021, ch. 551, § 2.) Second, the trial court stated it was 

persuaded by People v. York (2020) 54 Cal.App.5th 250, review 

granted Nov. 18, 2020, S264954, that section 1170.95 permits a 

petitioner to challenge the nature of his first degree felony 

murder conviction. Finally, the trial court did not find the jury’s 
5

inability to reach a verdict on the robbery-murder special 

circumstance allegation at trial dispositive. It reasoned that at 

the time of appellant’s conviction, first degree felony murder did 

not require a finding of “major participation” and “reckless 

indifference.” 

As to the merits of appellant’s petition for relief, the trial 

court discussed the factors articulated in Banks, Clark, and 

Scoggins, concluded, beyond a reasonable doubt, that appellant 

was a major participant in the robbery who acted with reckless 

indifference to human life, and denied the petition. 

SUFFICIENCY OF THE EVIDENCE

Appellant contends there is insufficient evidence to support 

the trial court’s finding that he acted with reckless indifference. 

As we explain, substantial evidence supports the trial court’s 

findings. 

Effective January 1, 2019, the Legislature enacted Senate 

Bill No. 1437 (2017-2018 Reg. Sess.) “to amend the felony murder 

rule and the natural and probable consequences doctrine . . . 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).) 

Senate Bill 1437 accomplished this task by adding three 

separate provisions to the penal code. (People v. Gentile (2020) 10 

Cal.5th 830, 842 (Gentile).) First, to amend the natural and 

probable consequences doctrine, the bill added section 188, 

subdivision (a)(3), which requires a principal to act with malice 

aforethought before a principal may be convicted of murder. (§ 

188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to 
6

amend the felony-murder rule, the bill added section 189, 

subdivision (e), which provides: “A participant in the perpetration 

or attempted perpetration of [qualifying felonies] in which a 

death occurs is liable for murder only if one of the following is 

proven: ¶ (1) The person was the actual killer. ¶ (2) The person 

was not the actual killer, but, with the intent to kill, aided, 

abetted, 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, as described in subdivision (d) of Section 190.2.” (§ 189, 

subd. (e); accord, Gentile, at p. 842.)

Third, the bill also added section 1170.95 to provide a 

procedure for those convicted of a qualifying offense “to seek 

relief under the two ameliorative provisions above.” (Gentile, 

supra, 10 Cal.5th at p. 843.)

Section 1170.95, subdivisions (b) and (c) create a two-step 

process for evaluating a petitioner’s eligibility for relief. (People 

v. Lewis (2021) 11 Cal.5th 952, 960-962 (Lewis).) First, the trial 

court determines whether the petition is facially sufficient and 

appoints counsel, if requested. (§ 1170.95, subd. (b)(1)-(b)(3).) If 

the petition is facially sufficient, then the trial court moves on to 

subdivision (c), and follows the briefing schedule set forth in the 

statute. (§ 1170.95, subd. (c); Lewis, at p. 966.) After completion 

of this briefing, the trial court then determines whether the 

petitioner has made a prima facie showing he or she is entitled to 

relief. (Ibid.) If so, the trial court must issue an order to show 

cause and conduct an evidentiary hearing to determine whether 

the petitioner is entitled to relief. (§ 1170.95, subds. (c), (d)(1)-

(d)(3); Lewis, at p. 960.) 
7

At the evidentiary hearing, the trial court acts as an 

independent fact finder. The parties may rely on the record of 

conviction or offer new or additional evidence. (Lewis, supra, 11 

Cal.5th at p. 960, citing § 1170.95, subd. (d)(3).) The prosecution

bears the “burden” to prove “beyond a reasonable doubt” that the 

petitioner is ineligible for relief. (§ 1170.95, subd. (d)(3).) “A 

finding that there is substantial evidence to support a conviction 

for murder, . . . is insufficient to prove, beyond a reasonable 

doubt, that the petitioner is ineligible for resentencing.” (Ibid., as 

amended by Stats. 2021, ch. 551, § 2.)

Standard of Review

We review the trial court’s factual findings for substantial 

evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320; 

People v. Westerfield (2019) 6 Cal.5th 632, 713.) “[W]e review the 

evidence in the light most favorable to the prosecution and 

presume in support of the judgment the existence of every fact 

the [trier of fact] could reasonably have deduced from the 

evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “‘We 

resolve neither credibility issues nor evidentiary conflicts . . . .’

[Citation.].” (Ibid.)

Major Participant

Even though appellant concedes he was a major 

participant, we briefly address the major participant factors 

enumerated in Banks, as well as the trial court’s application of 

them to appellant’s conduct in this case because there is a 

“significant[] overlap” in the requirements for being a major 

participant in a dangerous felony and acting with reckless 

indifference to human life. (Clark, supra, 63 Cal.4th at pp. 614-

615.) “‘[T]he greater the [appellant’s] participation in the felony 

murder, the more likely that he acted with reckless indifference 
8

to human life.’ [Citation.].” (Id. at p. 615.) Those factors include 

appellant’s role in planning the criminal enterprise; his role in 

supplying or using lethal weapons; his awareness of the dangers 

posed by the crime; his presence at the scene; his actions or 

inactions in the death; and what appellant did after lethal force 

was used. (Banks, supra, 61 Cal.4th p. 803.) 

Here, the trial court found appellant was a major 

participant in the crimes because he was “present when 

instructions were shared, labors divided, and roles defined.” He 

entered the credit union as “one of four integral parts of the 

robbery team, [and] went to a specific location within the credit 

union per a preconceived plan.” Although he did not supply the 

weapons used during the robbery, he “personally used a gun to 

control” the customers and employees inside the credit union in 

order to facilitate the robbery. He saw the events, heard the 

shots, and ran from the bank, passing the victim’s body as she lay 

on the sidewalk. 

The trial court found appellant’s actions demonstrated that 

he knew of the “dangers inherent in this particular crime,” and 

“directly contributed to and enhanced the danger” by “attempting 

to control at least two victims inside the credit union.” The trial 

court found that appellant was a major participant. 

Reckless Indifference to Human Life

“Reckless indifference to human life is ‘implicit in 

knowingly engaging in criminal activities known to carry a grave 

risk of death.’” (Scoggins, supra, 9 Cal.5th at p. 676, quoting 

Tison, supra, 481 U.S. at p. 157.) Reckless indifference

“encompasses a willingness to kill (or to assist another in killing) 

to achieve a distinct aim, even if the [appellant] does not 
9

specifically desire that death as the outcome of his actions.” 

(Clark, supra, 63 Cal.4th at p. 617.) 

In reviewing the trial court’s findings, we analyze the 

totality of the circumstances. (Scoggins, supra, 9 Cal.5th at p. 

677.) We consider several factors such as, appellant’s knowledge 

that weapons would be used; how the weapons were used; the 

number of weapons used; his proximity to the crime; his 

opportunity to stop the killing or aid the victims; the duration of 

the crime; appellant’s knowledge of the killer’s (accomplice’s) 

propensity to kill; and appellant’s efforts to minimize the 

possibility of violence during the crime. (Ibid.; Clark, supra, 63 

Cal.4th at pp. 618-623.) “‘[N]o one of these considerations is 

necessary, nor is any one of them necessarily sufficient.’” (Clark,

at p. 618, quoting Banks, supra, 61 Cal.4th at p. 803.) 

First, appellant acknowledged in his confession to police 

that he and the other three men had firearms. One of appellant’s 

accomplices, Adams, used a shotgun. Appellant also knew that 

his firearm was loaded. As we stated in our prior opinion,

“appellant concedes that his accomplice, Mitchell, shot and killed 

[Christine O.] while appellant was personally using a gun to 

control those inside the credit union and the other two 

accomplices were robbing the tellers at gun point.” (Owens,

supra, B130064 at pp. 6-7.) 

This case is unlike Scoggins and Clark in which the

defendants were unarmed, not present at the scene, did not know 

their accomplices were armed or, as in Clark, did not know the

accomplice was carrying a loaded gun. (See Scoggins, supra, 9 

Cal.5th at pp. 677-678; Clark, supra, 63 Cal.4th at p. 613.) This 

undercuts appellant’s claim that the evidence is insufficient to 

support the trial court’s finding of reckless indifference.
10

Second, the plan to commit the robbery of the credit union

during normal business hours when customers would likely be

present, posed obvious and extreme risks of lethal violence. We 

recognize that our Supreme Court has emphasized that the 

planning of or participation in a felony, even one in which the 

perpetrators were armed, is not by itself sufficient to show

reckless indifference. (Scoggins, supra, 9 Cal.5th at p. 682; 

Clark, supra, 63 Cal.4th at pp. 613-623.) However, the degree of 

risk to human life is crucial to the analysis. (Scoggins, at p. 682.)

This robbery posed a particularly high risk of violence 

because it involved multiple robbers with loaded firearms taking 

over a bank during normal business hours when approximately 

20 people were present. While the robbery was not prolonged, 

the violence ensued quickly. The trial court found, “this risk –

and danger – was the very reason [appellant] was asked to be a 

fourth gunman in the first place.” 

Appellant contends that he was just the “low man on the 

totem pole” and could not have known Mitchell would become 

violent or harm anyone. But even if appellant did not know of 

Mitchell’s proclivity for violence before the robbery, it is 

reasonable the trial court could have inferred that knowledge 

became evident to appellant during the robbery. (See Clark, 

supra, 63 Cal.4th at p. 621; Scoggins, supra, 9 Cal.5th at p. 681.) 

Moreover, appellant’s own actions increased the degree of risk to 

human life when he pointed a gun at two victims and cocked his 

weapon when they did not immediately comply with his orders. 

Considering the totality of the circumstances, we conclude

that substantial evidence supports the trial court’s finding that 

appellant acted with reckless indifference to human life.
11

Appellant resists this conclusion with several 

unmeritorious arguments. First, the trial court did not wrongly 

conclude that he acted with reckless indifference because it 

“blended [the] facts pertaining to major participation [and]

reckless indifference.” 

Second, appellant contends the trial court’s finding that he 

participated in “more than an ordinary robbery is a matter of 

characterization rather than objective indicia of culpability.” 

(Bold and capitalization omitted.) We disagree. The trial court 

engaged in a fact-intensive, individualized inquiry to determine

appellant’s culpability. (See Scoggins, supra, 9 Cal.5th at p. 683.) 

This was not a “‘garden-variety armed robbery.’” (See 

Clark, supra, 63 Cal.4th at p. 617 & fn. 74.) Indeed, the trial 

court opined that the crime “was so outrageous,” it would only 

support a determination that appellant acted with reckless 

indifference. 

Third, the standard for reckless indifference to human life 

has both a subjective and an objective element. (Scoggins, supra, 

9 Cal.5th at p. 677, citing Clark, supra, 63 Cal.4th at p. 617.) 

Recklessness is not determined “merely by reference to a 

defendant’s subjective feeling that he . . . is engaging in risky 

activities. Rather, recklessness is also determined by an 

objective standard, namely what ‘a law-abiding person would 

observe in the actor’s situation.’” (Clark, at p. 617.) 

Here, the trial court was not limited to considering only 

appellant’s self-serving statements to determine his mental state, 

particularly when those statements were made to police when 

appellant had an incentive to minimize his involvement. Because 

intent can seldom be proven by direct evidence, it typically is 

inferred from the circumstances. (People v. Smith (1998) 64 
12

Cal.App.4th 1458, 1469; People v. Edwards (1992) 8 Cal.App.4th

1092, 1099.) The trial court properly considered all of the 

evidence in determining appellant acted with reckless 

indifference. 

Fourth, appellant contends that although the trial court 

applied the beyond a reasonable doubt standard at the hearing, it 

“effectively revived” the substantial evidence standard by citing 

to cases that applied the Banks/Clark factors in the context of 

habeas corpus proceedings. This contention is meritless because 

the trial court addressed those cases in the context of discussing 

the Banks/Clark factors. More importantly, the trial court 

specifically addressed those cases and distinguished them 

because appellant cited them for support. 

Finally, the trial court did consider appellant’s youth as a 

factor in its Banks/Clark/Scoggins analysis. The trial court 

expressly stated it had “factored into the calculus” appellant’s age

of 19 years old when the crimes were committed. 

Substantial evidence supports the trial court’s finding,

beyond a reasonable doubt, that appellant was a major 

participant who acted with reckless indifference to human life. 

The trial court properly denied appellant’s petition for 

resentencing. 

Senate Bill No. 775

After appellant’s section 1170.95 full evidentiary hearing, 

the Legislature modified section 1170.95 both substantively and 

procedurally by the passage of Senate Bill No. 775 (S.B. 775). As 

it may have application to this case, section 1170.95 subd. (d)(3) 

now says that the Evidence Code shall apply at such hearing. 

This may mean that, absent some exception, hearsay contained 

in probation, pre-sentence reports, appellate opinions/orders, and 
13

other documents, are not now admissible at a section 1170.95 

hearing. There is no statement in S.B. 775 indicating that the 

procedural change is to be applied retroactively on appeal. The 

preclusion of hearsay is an ordinary rule of evidence. This aspect 

of the new law is a procedural change. Changes in criminal 

procedural rules, as declared by the courts, generally speaking, 

are not applied retroactively. (See, e.g., In re Moore (2005) 133 

Cal.App.4th 68, 75, relying on Teague v. Lane (1989) 489 U.S. 

288, 301; Schriro v. Summerlin (2004) 542 U.S. 348.) The same 

is true for California statutory changes in criminal procedural 

rules. As the Legislature has said, since 1872, “No part of it [the 

Penal code] is retroactive, unless expressly so declared.” (§ 3; 

People v. Alford (2007) 42 Cal.4th 749, 753; see also Tapia v. 

Superior Court (1991) 53 Cal.3d 282 [procedural change in 

criminal rules by initiative not retroactive].) 

The word, “retroactivity” and the name “Estrada” (In re 

Estrada (1965) 63 Cal.2d 740) have become the appellate words

“du jour.” But neither is a talisman precluding independent 

analysis and in whose presence extant statutory and other 

decisional law fade away and disappear. (See Coolidge v. New 

Hampshire (1971) 403 U. S. 443, 461.) We need not definitively 

rule on the retroactivity issue because denial of the instant 

petition did not result from the consideration of prejudicial 

hearsay. As Justice Frankfurter has said: “Wise adjudication 

has its own time for ripening.” (See Maryland v. Baltimore Radio 

Show (1950) U.S. 912, 918.)

 Senate Bill No. 775 does not have any impact on the 

outcome of this appeal. First, there was no objection to the presentence report which contained hearsay. There is a good reason 

why. Appellant’s attorney wanted the trial court to consider the 
14

hearsay statements. There was no evidentiary “bomb shell” 

crucial to the People’s case in the report. To the contrary, the 

hearsay was favorable to him. The hearsay statements show that 

appellant was not recruited to participate in the planned robbery 

until 90 minutes before it happened. He was only invited to 

participate at the last minute because the fourth conspirator was 

a “no show.” This, of course, theoretically diminishes his over-all 

culpability. He had no part in planning or logistics. In his 

hearsay explanation, he attempted to minimize his involvement. 

He was asked to aid the robbery as just a “helper” and supplied a 

firearm to control the people in the bank. As he phrases it on 

appeal, he was “low man on the totem pole.” 

Second, there is nothing unfavorable to appellant in any 

hearsay documents that the trial court did not already know from 

the other admissible evidence. Thus, appellant suffered no 

prejudice by the court’s consideration of any hearsay evidence. 

Admission of this evidence did not result in an unfairness. There 

is no miscarriage of justice and we are not of the opinion that a 

different result would obtain upon retrial of the petition. (Cal. 

Const., art. VI, § 13.) 

DISPOSITION

The order is affirmed.

CERTIFIED FOR PUBLICATION.

YEGAN, acting P. J.

I concur:

PERREN, J.
1

TANGEMAN, J., Concurring:

I concur in the disposition because the admissible evidence 

demonstrates that appellant was a major participant who acted 

with reckless indifference to human life. I do not join in the 

majority’s analysis of whether the hearsay provisions of Senate 

Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) 

(Senate Bill 775) are retroactive. The majority’s pronouncements 

on this issue are dicta because the appellant did not raise Senate 

Bill 775. This court sent a Government Code section 68081 letter 

asking whether it should discuss Senate Bill 775. Appellant 

responded in supplemental briefing that he does not claim Senate 

Bill 775 applies in this case. As the majority recognizes, Senate 

Bill 775 has no impact on the outcome of the appeal. 

In any event, it is unresolved whether the evidentiary 

provisions of Senate Bill 775 apply in an appeal from a completed 

resentencing hearing. Because the evidentiary portions of Senate 

Bill 775 “clarify[] the discussion” in People v. Lewis (2021) 11 

Cal.5th 952, 970-972 (Sen. Bill No. 775, § 1(d)), they may come 

within the rule that legislative clarification of existing law 

applies to conduct that precedes its enactment. (Carter v. 

California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922.) 

In addition, cases have reached different conclusions on the 

retroactivity of so-called procedural changes. (Compare People v. 

Cervantes (2020) 55 Cal.App.5th 927 [limitations on admission of 

evidence not retroactive] with People v. Burgos (2022) 77 

Cal.App.5th 550, 564-568 [procedural change in bifurcating trial 

of enhancement retroactive] and Tapia v. Superior Court (1991) 

53 Cal.3d 282 [portions of Prop. 115 including admission of 
2

hearsay at preliminary hearing, apply to future court proceedings 

for alleged crimes committed prior to enactment].)1 

The majority’s hostility to the requirements of In re

Estrada (1965) 63 Cal.2d 740 is evident from its use of the phrase 

“appellate words ‘du jour’” to describe “retroactivity” and 

“Estrada.” (Maj. opn. ante, at p. 13.) The only purpose served by 

the majority’s dicta is to discourage trial courts from considering 

this unresolved issue in the first instance, and litigants from 

raising and briefing the issue on appeal from a record that 

presents it. I would reserve analysis of the retroactivity of 

Senate Bill 775 for a case that squarely presents the issue. 

CERTIFIED FOR PUBLICATION.

TANGEMAN, J.

1 The majority misapprehends Tapia, supra, 53 Cal.3d 282. 

Tapia held that the provisions of Proposition 115 that increased 

punishment or created new crimes could not be applied to 

completed conduct because the effect would be “retroactive.” In 

that context, the Court concluded the provisions that related to 

the conduct of court proceedings, such as allowing hearsay at 

preliminary hearings, were not “retroactive,” and were properly 

prospectively applied to future court proceedings, even for alleged 

crimes committed before the proposition’s enactment. 
James K. Voysey, Judge

Superior Court County of Santa Barbara

______________________________

Ralph H. Goldsen, 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, Noah P. Hill, Supervising Deputy 

Attorney General, Thomas C. Hsieh, Deputy Attorney General, 

for Plaintiff and Respondent.