People v. Witherspoon CA2/7 ( 2023 )

Filed 3/1/23 P. v. Witherspoon CA2/7
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B303406
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA008291)
v.
RODERICK WITHERSPOON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. David Herriford, Judge. Affirmed.
Larry Pizarro and Mark L. Lenenberg, under appointment
by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Senior Assistant Attorney General, Daniel
Chang and Thomas C. Hsieh, Deputy Attorneys General, for
Plaintiff and Respondent.
__________________________________
INTRODUCTION
We consider for the second time Roderick Witherspoon’s
appeal from the superior court’s order denying his petition under
Penal Code section 1172.61 (former section 1170.95). In 1991 a
jury found Witherspoon guilty of first degree murder for the
killing of Vincent Rucker, and the trial court sentenced
Witherspoon to a prison term of 25 years to life. The verdict form
did not indicate whether the jury convicted Witherspoon of
deliberate, premeditated murder or of robbery felony murder. On
direct appeal, we affirmed the conviction. In his section 1172.6
petition, Witherspoon sought an order vacating his conviction,
arguing he could not now be convicted of first degree felony
murder after the revisions to section 189, subdivision (e)(3). The
superior court denied the petition, finding that Witherspoon was
a major participant in the underlying felony and acted with
reckless indifference to human life, as defined by People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark).
In October 2020 we affirmed the superior court’s order
denying Witherspoon’s petition. We rejected Witherspoon’s
arguments that the superior court applied the wrong burden of
proof at the hearing on his petition, relied on inadmissible
hearsay, and had insufficient evidence to find he acted with
reckless indifference to human life. The California Supreme
Court granted Witherspoon’s petition for review in light of its
then-pending consideration of People v. Lewis (2021) 11 Cal.5th
1 Undesignated statutory references are to the Penal Code.
2
952 (Lewis). While the case was still pending review, the
Legislature passed and the Governor signed, effective January 1,
2022, Senate Bill No. 775 (Stats. 2021, ch. 551, § 1, subd. (b))
(SB 775), which amended section 1172.6 in ways relevant to
Witherspoon’s appeal. On October 12, 2022, the Supreme Court
transferred the cause back to this court with directions to vacate
our decision and reconsider it in light of SB 775. We received and
considered supplemental briefing from the parties addressing the
statutory changes. The amendments to section 1172.6 do not
alter our view of the burden of proof applied by the superior court
or otherwise change the resolution of the matter. We again
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Rucker’s Cocaine Plan Ends in His Murder
Rucker and his half-brother, Wendell Harris, hatched a plot
to buy cocaine in Los Angeles and resell it in Michigan, where
Rucker lived.2 Wendell claimed to have connections in
Los Angeles, where he lived. On August 27, 1989, Rucker flew
from Michigan to Los Angeles. Rucker carried with him nearly
$200,000, enough to buy 15 or more kilograms of cocaine. Rucker
went directly to his sister Yolanda Muwwakkil’s house, where
she lived with her husband, Joel Muwwakkil,3 and their three
small children. When it turned out that Wendell “didn’t know
2 We refer to Wendell Harris by his first name to avoid
confusion with George Harris, his father.
3 We refer to the Muwwakkils by their first names to avoid
confusion.
3
nothing he said he did,” Rucker called their father back in
Michigan, George Harris (who knew about the plan) and asked
Harris for help securing a more reliable cocaine connection. At
Rucker’s suggestion, Harris called Harris’s friend, Johnny
Johnson. Johnson patched Witherspoon into the call and
introduced him to Harris. Witherspoon claimed to have access to
15 to 20 kilograms of cocaine that he promised to sell to Rucker.
Harris gave Witherspoon the phone numbers for Rucker and
Yolanda; Witherspoon promised to “take care of” Rucker.
Witherspoon called Rucker that same day, leading Rucker to
“stick around a day or two and see what’s happening.” Over the
next few days, Rucker stayed at Yolanda’s house waiting for
Witherspoon to conclude the arrangements. Rucker and
Witherspoon met at least once during this time when
Witherspoon picked Rucker up from Yolanda’s house in
Witherspoon’s red Nissan Maxima and took him to Witherspoon’s
house.
On September 5, 1989, Rucker told his father he planned to
meet with Witherspoon the following day, then hopefully return
to Michigan that evening. On the afternoon of September 6,
1989, Rucker met Witherspoon at Yolanda and Joel’s house. Also
present were two or three other men Joel did not know and Bill,
an acquaintance of Rucker’s from Michigan. Joel observed the
men in his driveway next to a gray Ford. Joel could see a
pillowcase and “neatly stacked” money—“quite a bit”—covering
two-thirds of the Ford’s backseat. He saw Witherspoon back a
red Nissan Maxima into the driveway, at which point Rucker
carried a nearly full pillowcase from the Ford’s backseat to the
Nissan’s backseat. The situation made Joel “agitated, upset,
nervous.” He went back inside and told Yolanda, who had just
4
arrived, that she needed to instruct Rucker to leave. Yolanda
went outside and told Rucker “they had to go.” Rucker told his
sister he “had to make a run” and asked for a ride to the airport
when he returned. He then left with Witherspoon in
Witherspoon’s red Nissan Maxima. The other men, including
Bill, left in the Ford going in a different direction. Rucker did not
return to his sister’s house that night, staying instead with
Witherspoon at the home of Rhonda Durham, Witherspoon’s
girlfriend. On September 7, 1989—the day of Rucker’s murder—
Rucker and Witherspoon left Rhonda’s house in Witherspoon’s
car around 8:00 a.m.
Around 4:00 to 4:30 p.m. that day, Rucker went alone to the
Music Staff, an “adult entertainment bar” near his motel. He
called Joel from the bar, told him he was ready to return to
Michigan, and asked Joel to let Rucker’s friends know to gather
at Joel’s house at 9:30 p.m. that evening. Rucker left the bar
alone.
At 8:23 p.m. that evening, Witherspoon called Rucker’s
motel. Between 8:35 and 8:40 p.m. Witherspoon visited Amisa
Durham at her house. Amisa’s sister, Rhonda, was not at the
house.4 Witherspoon asked Amisa if she wanted to see his new
clothes. When she said yes, they crossed the street to
Witherspoon’s red Nissan Maxima. There, Amisa saw
“expensive” new clothes and shoes Witherspoon bought that day
that did not resemble the type of clothes Witherspoon typically
wore. Witherspoon asked Amisa if she would help him count
some money. Amisa initially agreed, at which point Witherspoon
4 We refer to Amisa and Rhonda Durham by their first
names to avoid confusion.
5
pulled out a luxury brand duffel bag that still had packaging
wrapping its handles. Back in Amisa’s house, Witherspoon
opened the duffel bag and began removing bundles of money.
Underneath the money, in the duffel bag, Amisa spotted and
asked Witherspoon about a black vinyl briefcase. Witherspoon
removed the case and opened it, showing Amisa an unassembled
Uzi semi-automatic rifle. Witherspoon told Amisa he had
another gun under the seat of his car. Amisa, who worked in the
Los Angeles Police Department’s property room and handled
guns as part of her job, then changed her mind about counting
the money. Witherspoon left her house between 8:50 and
9:05 p.m.
Shortly thereafter, at 9:25 p.m., Bill called Joel to find out
about Rucker (Bill also had called about two hours earlier to
inquire about Rucker). Bill arrived at Joel’s house around
9:30 p.m. Also at 9:25 p.m., three and a half miles from Amisa’s
house, Vincent Cash heard a gunshot, followed by a burst of
gunshots. Cash lived in a neighborhood—near a freeway—where
Witherspoon owned a home (and used to live). Cash, who was
watching television and talking on the phone at the time, did not
hear a car stop, a door slam, or voices. After about four minutes
on the floor, Cash got up and looked out the window toward the
street, where he saw a motionless body. Cash called 911 at
9:27 p.m. Rucker bled to death from nine gunshot wounds
shortly after paramedics arrived about 10 minutes later.
B. The Police Investigation Leads to Witherspoon
The day after Rucker’s killing, Yolanda called their father
to tell him Rucker had been killed. Harris attempted to reach
Witherspoon, but did not speak with him until the following day,
6
September 9, 1989. To Harris, Witherspoon claimed the ex-
boyfriend of a dancer named Taboo must have shot Rucker.
According to Witherspoon, Rucker borrowed Witherspoon’s car to
drive Taboo home from Witherspoon’s house. Witherspoon
hypothesized that the ex-boyfriend must have been at Taboo’s
home when they arrived, shot Rucker, then driven off in
Witherspoon’s car. The car, Witherspoon told Harris, had little
gas and so “whoever did Vince” would have run out of gas and left
the car near the freeway close to where Rucker was shot.
Witherspoon told Harris the police had impounded the car with
12 kilograms of cocaine and $30,000 from the drug deal still in
the trunk. Witherspoon promised to recover the car and send
Harris the drugs and cash: “I am going to take care of it for
you. . . . Whatever Vince had I will see that you get it.” The next
day Witherspoon told Harris that Taboo’s cousin, not her ex-
boyfriend, killed Rucker.
Following their investigation, the police determined that
Rucker died from bullets either from a Smith & Wesson
nine-millimeter pistol (a gun compact enough to fit under a car
seat) or a rare model Uzi submachine gun. They found 13 casings
near Rucker’s body. They concluded several shots struck the
ground and ricocheted. The police found Rucker’s wallet
apparently undisturbed in his pocket along with a piece of paper
that had the name “Rod” (Witherspoon’s first name) and
Witherspoon’s phone number written on it. An autopsy revealed
the killer shot Rucker once in the back and several more times as
he lay on the ground.
On September 11, 1989, four days after the shooting,
Witherspoon spoke with the police. He claimed he went to the
adult entertainment bar with Rucker on the night of the murder.
7
Witherspoon stated that Rucker “had a hassle” with Taboo’s
boyfriend around 8:00 p.m., Rucker then borrowed Witherspoon’s
car to drive Taboo home. An hour later Taboo contacted
Witherspoon to say her boyfriend shot Rucker. When questioned
by the police, Taboo stated she had never heard of either Rucker
or Witherspoon. Moreover, Taboo had not worked at the bar for
several months (a fact corroborated by the bar’s owner); on the
day of the murder Taboo was at home recovering from a nervous
breakdown. In a subsequent interview, Witherspoon insisted
Rucker instead left with a different dancer, not Taboo, who did
not have the same appearance or body markings that Taboo did.
Police obtained a warrant to search Witherspoon’s car
(which had not been impounded, contrary to what Witherspoon
told Harris). With the help of Witherspoon’s wife, the police
located the car several miles from where Witherspoon lived. The
car had no cocaine, cash, guns, bullets, or blood in it, but it did
have scrapes and dents, evidence of a bullet ricochet on one side,
and the trunk was wired shut. The police recovered an empty
luxury brand duffel bag from Witherspoon’s closet.
On September 14, 1989, the police arrested Witherspoon for
Rucker’s murder. Witherspoon made several calls from the jail.
He told Harris that the police had arrested him for Taboo’s
murder (she was alive), not Rucker’s, but that “we got the car,
man” and he would send Harris “everything that Vince had
coming.” Witherspoon also called a neighbor and asked him to
tell police he, the neighbor, drove Witherspoon’s car home the
night of Rucker’s murder (the neighbor refused to lie to the
police). Witherspoon called Amisa with an important message.
He asked Amisa to have Rhonda tell police that on a date Amisa
8
could not remember (but which Witherspoon provided), Rhonda
picked up Witherspoon at 9:00 p.m. in West Covina.
C. Witherspoon’s Trial and Conviction
The People charged Witherspoon with first degree murder
(§ 187) and robbery (§ 211) and alleged a robbery special
circumstance under section 190.2, subdivision (a)(17). The court
granted Witherspoon’s motion pursuant to section 995 to dismiss
the robbery charge and the robbery murder special circumstance
allegation because there was insufficient evidence independent of
Witherspoon’s extrajudicial statements to establish the corpus
delicti for the robbery.
Before the close of the People’s case in chief, counsel met in
chambers to discuss jury instructions. The trial court told the
parties it would instruct the jury on first degree premeditated
murder, robbery felony murder, and robbery.5 The court declined
to instruct the jury on second degree murder, stating that the
murder was “either premeditated or it’s a robbery.” Over counsel
for Witherspoon’s objection, the court also agreed to instruct the
jury on aiding and abetting because “there is a possibility that
this was a set-up.”
The jury found Witherspoon guilty of first degree murder
without specifying whether Witherspoon committed premeditated
murder or felony murder. The verdict form mistakenly included
5 During the chambers conference, Witherspoon’s counsel
argued against the felony murder instruction because the court
had dismissed the robbery count when it ruled on the section 995
motion. In rejecting Witherspoon’s argument, the court
explained, “The reason the 995 was granted was that there was
no corpus delicti robbery.” But, as the trial court explained it,
“You don’t need a corpus for a robbery-murder.” Witherspoon did
not appeal this specific ruling.
9
the robbery murder special circumstance allegation the court had
dismissed, and the jury found the allegation true. The court,
however, never instructed the jury on that allegation and instead
gave only the instruction for felony murder occurring during the
commission or attempted commission of robbery. In the People’s
opposition to Witherspoon’s motion for new trial, the People
acknowledged the special circumstance allegation under
section 190.2 was “mistakenly” included in the verdict form.6 In
May 1991 the court sentenced Witherspoon to a prison term of
25 years to life.
D. Witherspoon’s Direct Appeal
Witherspoon appealed the judgment, arguing, among other
things, that the court deprived him of due process when it
instructed on a theory (felony murder) on which he was not
charged. He further argued insufficient evidence supported the
verdict, whether viewed as premeditated or felony murder. He
also argued the trial court erred in instructing the jury on an
aiding and abetting theory. This court affirmed the judgment
(People v. Witherspoon (Mar. 14, 1994, B061260) [nonpub. opn.]
(Witherspoon I).) In Witherspoon I this court held there was
substantial evidence Witherspoon murdered Rucker deliberately
6 The People argue Witherspoon is ineligible for relief under
section 1172.6 because the jury found true the special
circumstance allegation under section 190.2, subdivision (a)(17).
As discussed, the verdict form included a special circumstance
allegation under section 190.2, but the trial court never
instructed the jury on that allegation because it was dismissed
before trial. Thus, the jury’s true finding on that allegation has
no effect on Witherspoon’s eligibility for relief under
section 1172.6.
10
and with premeditation and during the commission of a robbery.7
The court also held the trial court properly gave the aiding and
abetting instruction because the “evidentiary gap” left by the lack
of any witness to the murder “allowed the possibility more than
one person was present and participated” in Rucker’s murder.
E. The Superior Court Denies Witherspoon’s Petition for
Resentencing
On February 27, 2019, Witherspoon filed a petition to
vacate the judgment and for resentencing under section 1172.6.8
In the petition, Witherspoon asserted several grounds for
resentencing. He claimed the prosecution pursued, and he was
convicted under a theory of, felony murder or murder under the
natural and probable consequences doctrine. He also asserted he
could not now be convicted of first or second degree murder
because of changes made to sections 188 and 189, and a prior
court or jury determined he was not a major participant and/or
did not act with reckless indifference to human life under
section 190.2, subdivision (d). Witherspoon also asserted he “did
not, with the intent to kill, aid, abet, counsel, command, induce,
7 The People argue Witherspoon is ineligible for relief under
section 1172.6 because this court previously held the evidence at
trial was sufficient to prove express malice. As discussed,
however, the verdict does not indicate whether the jury convicted
Witherspoon of premeditated or felony murder, and a holding in
the alternative that substantial evidence supported either theory
on direct appeal is not equivalent to a finding beyond a
reasonable doubt, as now required by section 1172.6.
8 The Legislature renumbered section 1170.95 as
section 1172.6 without changing the text of the statute. (See
People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2.)
11
solicit, request, or assist the actual killer in the commission of
murder in the first degree,” that he “was not a major participant
in the felony or I did not act with reckless indifference to human
life during the course of the crime or felony,” and that the victim
of the crime was not a peace officer.
The superior court appointed counsel. In an informal
opposition to the petition, the People argued Witherspoon was
ineligible for resentencing because the trial evidence
demonstrated he was the actual killer or a major participant who
acted with reckless indifference to human life. On May 13, 2019,
the People filed an addendum to their informal opposition
attaching a copy of this court’s 1994 opinion denying
Witherspoon’s direct appeal. Witherspoon filed a reply denying
robbing or killing Rucker. The People filed another addendum
submitting the reporter’s transcript and clerk’s transcript from
the 1991 trial.
Without making an express finding that Witherspoon had
made a prima facie case for resentencing, and without issuing an
order to show cause, the superior court invited both parties to
submit any additional evidence they deemed relevant. At an
evidentiary hearing on December 13, 2019, the court referenced
this court’s 1994 opinion, asking Witherspoon’s counsel about the
opinion: “It seems pretty clear that your client is the accused
perpetrator or certainly I mean how would he get out from under
being the perpetrator being a major participant and acting
reckless and indifferent? There’s no one else involved and or at
least no one else alleged to be involved itself and the actual
killer?” When Witherspoon’s counsel responded that multiple
people could have killed Rucker, the court asked, “What evidence
is there to suggest that any other identifiable person was present
12
and involved in the actual shooting? . . . [I]n the court of appeal
opinion and they set forth the scenario . . . it seems to be the only
logical scenario the jury could have done in order to determine
the guilty verdict. So what scenario would there be? What
evidence would there be to suggest their client was not the
perpetrator and was not the participant?” After Witherspoon’s
counsel referred the court to a portion of the trial transcript
involving comments by the court during a chambers conference,
the court renewed its inquiry as to what scenario would not place
Witherspoon as the perpetrator. Witherspoon’s counsel then
recited trial evidence in support of the argument that insufficient
evidence supported Witherspoon as the actual killer.
On December 24, 2019, the court issued a written ruling
denying the petition, finding Witherspoon “could still be
convicted” of first degree murder under amended sections 188
and 189 in that he was a major participant in the robbery and
acted with reckless indifference to human life. The court did not
make a finding that Witherspoon was the “actual killer” under
section 189, subdivision (e)(1), but did find Witherspoon “likely
pulled the trigger himself.”
F. This Court Denies Witherspoon’s Appeal, the Supreme Court
Grants Review, the Legislature Enacts SB 775, and the
Supreme Court Vacates and Remands
Witherspoon timely appealed. He argued the superior
court improperly “premised” its denial of his petition on
inadmissible hearsay contained in the statement of facts section
of this court’s 1994 opinion affirming his conviction. He also
asserted the court applied an incorrect burden of proof. Finally,
13
he claimed substantial evidence did not support the court’s
finding he acted with reckless indifference to human life.
On October 22, 2020, this court denied Witherspoon’s
appeal from the trial court’s order denying his 1172.6 petition.
On December 30, 2020, the California Supreme Court granted
Witherspoon’s petition for review and deferred further action
while it decided Lewis, supra, 11 Cal.5th 952, pending at the
time. Shortly thereafter, the Legislature enacted, and the
Governor signed, SB 775, which took effect January 1, 2022 (Cal.
Const., art. IV, § 8, subd. (c)).
On October 12, 2022, the Supreme Court transferred the
cause back to this court with directions to vacate our October 22,
2020 opinion and reconsider our decision in light of SB 775.
DISCUSSION
A. Applicable Law
1. Senate Bill No. 1437
“Effective January 1, 2019, the Legislature changed the
substantive definition of murder by enacting Senate Bill 1437.”
(People v. Clements (2022) 75 Cal.App.5th 276, 290 (Clements).
Senate Bill No. 1437 (SB 1437) amended sections 188 and 189,
making “significant changes to the scope of murder liability for
those who were neither the actual killers nor intended to kill
anyone, including certain individuals formerly subject to
punishment on a felony-murder theory.” (People v. Strong (2022)
13 Cal.5th 698, 707 (Strong); accord, Lewis, supra, 11 Cal.5th at
p. 957.) “Penal Code section 189, as amended, now limits liability
under a felony-murder theory principally to ‘actual killer[s]’ (Pen.
Code, § 189, subd. (e)(1)) and those who, ‘with the intent to kill,’
14
aid or abet ‘the actual killer in the commission of murder in the
first degree’ (id., subd. (e)(2)). Defendants who were neither
actual killers nor acted with the intent to kill can be held liable
for murder only if they were ‘major participant[s] in the
underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of [Penal Code]
Section 190.2’—that is, the statute defining the felony-murder
special circumstance.” (Strong, at p. 708; accord, People v.
Gentile (2020) 10 Cal.5th 830, 842.)
“Senate Bill 1437 also created a special procedural
mechanism for those convicted under the former law to seek
retroactive relief under the law as amended.” (Strong, supra,
13 Cal.5th at p. 708; People v. Gentile, supra, 10 Cal.5th at
p. 843.) First, a convicted person files a petition with a
declaration that the person meets the eligibility criteria. (Strong,
at p. 708; § 1172.6, subd. (b)(1)(A).) The court then evaluates the
petition “to determine whether the petitioner has made a prima
facie case for relief.” (§ 1172.6, subd. (c).) “If the petition and
record in the case establish conclusively that the defendant is
ineligible for relief, the trial court may dismiss the petition.”
(Strong, at p. 708.) But if the defendant has met the prima facie
criteria, “the court shall issue an order to show cause.” (§ 1172.6,
subd. (c).) If the parties stipulate to resentencing, or “there was a
prior finding by a court or jury that the petitioner did not act
with reckless indifference to human life or was not a major
participant in the felony, the court shall vacate the petitioner’s
conviction and resentence the petitioner.” (Id., subd. (d)(2).)
“Otherwise, the court must hold an evidentiary hearing at which
the prosecution bears the burden of proving, ‘beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted
15
murder’ under state law as amended by Senate Bill 1437.”
(Strong, at p. 709.)
2. SB 775
At the time of the evidentiary hearing in this case,
section 1172.6, subdivision (d)(3), provided that at the
evidentiary hearing on a section 1172.6 petition, the People had
to prove “beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.”
“Effective January 1, 2022, [SB 775] amended
section 1172.6 to clarify certain aspects of the law, including that
(1) the burden of proof at a resentencing hearing under this
section is ‘on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is guilty of murder’ under California law as
amended by Senate Bill No. 1437 and (2) ‘[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.’ (§ 1172.6, subd. (d)(3);
see also Stats. 2021, ch. 551, § 1, subd. (c).) Senate Bill No. 775
clarified that the trial court’s role in a section 1172.6 proceeding
is to act as an independent fact finder and determine, in the first
instance, whether the petitioner committed murder under the
law as amended by Senate Bill No. 1437.” (People v. Guiffreda
(2023) 87 Cal.App.5th 112, 123; see People v. Garcia (2022)
82 Cal.App.5th 956, 966; see also People v. Garrison (2021)
73 Cal.App.5th 735, 745 [the superior court acts as “an
independent fact finder, to determine beyond a reasonable doubt
whether defendant is guilty of murder under a valid theory of
murder”].)
16
SB 775 also clarified that at the hearing on a petition,
“admission of evidence in the hearing shall be governed by the
Evidence Code” with some exceptions, among them that the
superior court deciding the petition “may also consider the
procedural history of the case recited in any prior appellate
opinion.” (§ 1172.6, subd. (d)(3).) Courts have since interpreted
the amended language to mean that, while the court may
consider the procedural history, it may not (absent stipulation)
consider the appellate court’s factual summary in the same
opinion. (People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9
[“Senate Bill 775 prevents a trial court from relying on facts
recited in an appellate opinion to rule on a petition under
section 1170.95, as the statute now provides that ‘the court may
consider evidence previously admitted at any prior hearing or
trial that is admissible under current law’ and ‘the procedural
history of the case recited in any prior appellate opinion.’”];
People v. Flores (2022) 76 Cal.App.5th 974, 988 [“Furthermore,
the factual summary in an appellate opinion is not evidence that
may be considered at an evidentiary hearing to determine a
petitioner’s eligibility for resentencing.”]; Clements, supra,
75 Cal.App.5th at p. 292 [“specificity [of amendment] indicates
the Legislature has decided trial judges should not rely on the
factual summaries contain in prior appellate decisions”].)
B. Standard of Review
Although the superior court did not issue an order to show
cause under former section 1170.95, subdivision (c), we agree
with the parties that the court intended the December 13, 2019
evidentiary hearing to be a section 1172.6, subdivision (d)(3),
evidentiary hearing. The court invited the parties to submit new
17
or additional evidence outside the record of conviction, considered
the record of conviction (and the parties’ submissions), and
decided the merits of Witherspoon’s petition. If we find the
superior court applied the correct burden of proof, we review the
court’s decision for substantial evidence because the court
decided the merits of the petition based on its own independent
factfinding. (People v. Guiffreda, supra, 87 Cal.App.5th at p. 125;
Clements, supra, 75 Cal.App.5th at p. 298 [“our job is to
determine whether there is any substantial evidence,
contradicted or uncontradicted, to support a rational fact finder’s
findings beyond a reasonable doubt”]; People v. Sifuentes (2022)
83 Cal.App.5th 217, 232 (Sifuentes); People v. Mitchell (2022)
81 Cal.App.5th 575, 591.) “We view the facts in the light most
favorable to the People. In this process, 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.)
“The same standard governs in cases where the prosecution
relies primarily on circumstantial evidence.” (People v. Zamudio
(2008) 43 Cal.4th 327, 357, 375.) “An appellate court must accept
logical inferences that the [court] might have drawn from the
circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342,
396.) “‘“[A] reversal for insufficient evidence ‘is unwarranted
unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support’” the jury’s verdict.”’”
(Sifuentes, supra, 83 Cal.App.5th at pp. 233-234; see People v.
Penunuri (2018) 5 Cal.5th 126, 142 [outlining sufficiency of
evidence standard for guilt phase issues in direct appeal of death
penalty case].)
18
Thus, “our sole inquiry is whether there was sufficient
evidence for a reasonable trier of fact to conclude beyond a
reasonable doubt” that Witherspoon was a major participant in
the robbery who acted with reckless indifference to human life.
(Sifuentes, supra, 83 Cal.App.5th at p. 234; § 189, subd. (e)(3).)
C. Even Considering the SB 775 Amendments, the Superior
Court Did Not Prejudicially Err When It Referenced the
Statement of Facts in Witherspoon I
Witherspoon contends the superior court improperly relied
on the statement of facts in Witherspoon I. Prior to SB 775,
Witherspoon argued the opinion in Witherspoon I constituted
inadmissible hearsay. In his supplemental brief, he contends
SB 775 made clear that facts in prior appellate opinions are
inadmissible at the evidentiary hearing on a section 1172.6
petition. The People argue Witherspoon forfeited these
arguments by failing to raise them in the superior court, and any
error is harmless. We agree any error is harmless.
“Ordinarily, ‘the failure to object to the admission of . . .
hearsay at trial forfeits an appellate claim that such evidence
was improperly admitted.”’ (People v. Perez (2020) 9 Cal.5th 1, 7
(Perez); accord, People v. Stevens (2015) 62 Cal.4th 325, 333; see
Evid. Code, § 353, subd. (a).) Among other reasons for this rule,
requiring an objection in the trial court “‘“allows the trial judge to
consider excluding the evidence or limiting its admission to avoid
possible prejudice.”’” (Perez, at p. 7.) Accordingly, even if the
statement of facts in Witherspoon I contained hearsay, which we
do not need to decide, Witherspoon forfeited that argument by
failing to raise it in the superior court.
19
However, Witherspoon’s argument that SB 775 rendered
the statement of facts from Witherspoon I inadmissible survives
the People’s forfeiture argument. “‘“[R]eviewing courts have
traditionally excused parties for failing to raise an issue at trial
where an objection would have been futile or wholly unsupported
by substantive law then in existence.”’” (Perez, supra, 9 Cal.5th
at pp. 7-10 [defendant did not forfeit challenge to expert opinion
based on case-specific hearsay because defendant could not have
anticipated the change in law created by People v. Sanchez (2016)
63 Cal.4th 665].) Courts excuse “‘“‘a failure to object where to
require defense counsel to raise an objection “would place an
unreasonable burden on defendants to anticipate unforeseen
changes in the law.”’”’” (Perez, at p. 8.)
At the time of the evidentiary hearing, former
section 1170.95, subdivision (d)(3), permitted the parties “‘[to]
rely on the record of conviction . . . to meet their respective
burdens,’” including the unlimited use of any prior appellate
opinions. As discussed, courts have interpreted the amendments
introduced by SB 775 to limit that reliance to “the procedural
history of the case recited.” (§ 1172.6, subd. (d); see, e.g.,
Clements, supra, 75 Cal.App.5th at p. 292 [the “Legislature
limited use of prior appellate opinions [in hearings under
section 1172.6, subdivision (d)], allowing trial judges to ‘consider
the procedural history of the case recited,’” but not “the factual
summaries contained in prior appellate decisions when a
section 1170.95 petition reaches the stage of a full-fledged
evidentiary hearing”].
We need not decide here whether SB 775 precluded
reliance by a trial court on the factual summary in an appellate
opinion when considering a section 1172.6, subdivision (d)(3),
20
petition. Witherspoon did not forfeit his argument that the
superior court improperly relied on the factual summary in
Witherspoon I because he could not have foreseen the change in
the law at the time of the evidentiary hearing. However, even if
the court relied on the facts stated in Witherspoon I, and even if
SB 775 prohibits that reliance, Witherspoon has not
demonstrated a reasonable probability the court would have
reached a more favorable result absent any error. (Lewis, supra,
11 Cal.5th at pp. 973-974 [denial of section 1172.6 petition
evaluated under harmless error test set forth in People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson)]; People v. Myles (2021)
69 Cal.App.5th 688, 706 [applying Watson in appeal from denial
of section 1172.6 petition and finding any error in admitting
parole assessment report harmless unless reasonably probable
defendant would have obtained more favorable outcome if report
had been excluded]; Christ v. Schwartz (2016) 2 Cal.App.5th 440,
447 [“Under the Watson harmless error standard, it is the burden
of appellants to show that it is reasonably probable that they
would have received a more favorable result at trial had the error
not occurred.”].)
In fact, Witherspoon has not even tried to demonstrate
some prejudice from the court’s use of the factual summary in
Witherspoon I, or that the superior court would have reached a
different result without it. Witherspoon had multiple
opportunities to supplement or object to the facts stated in
Witherspoon I but never did. After the prosecution provided
Witherspoon I to the superior court as part of its informal
opposition, Witherspoon did not object to the statement of facts or
offer any new or different evidence. Then, in advance of the
evidentiary hearing, the court invited the parties to “file anything
21
else.” Witherspoon did not submit any additional evidence. At
the evidentiary hearing, the parties and the court referred to the
facts as set forth in Witherspoon I, but Witherspoon never
objected to the accuracy or consideration of those facts. For
example, when wondering whether the evidence would support
any “other scenario” besides the “logical scenario” that only
Witherspoon was present and was the perpetrator, Witherspoon’s
counsel referred to the 1991 trial transcript but did not object to
the court’s characterization, drawn from the factual summary in
Witherspoon I. Then, after the Supreme Court transferred the
case to this court, and Witherspoon had the opportunity in light
of SB 775, again to raise any objections to the accuracy of the
factual summary discussed by the trial court, Witherspoon
offered no objection whatsoever to the facts as presented in the
prior opinion and arguably considered by the trial court.
Thus, at no time, including after transfer of the case back
from the Supreme Court, has Witherspoon asserted that
Witherspoon I somehow misstates the trial evidence. If the
opinion accurately summarized the evidence, which Witherspoon
appears to concede, then any reliance on it by the superior court
would be harmless. (See People v. Gamache (2010) 48 Cal.4th
347, 378 [burden is on appellant “to affirmatively demonstrate
error”].) Moreover, even assuming the superior court did rely to
some extent on the (accurate) factual summary in Witherspoon I,
it also relied extensively on the underlying trial record. At
multiple points, the court discussed and referenced the trial
record with the parties during the evidentiary hearing, rather
than relying on the factual summary in Witherspoon I. As but
one example, the court asked defense counsel, “What evidence
would there be to suggest their client was not the perpetrator and
22
was not the participant?” In its ruling, the court stated that it
took the background facts of the case “predominantly,” but not
solely, from Witherspoon I and cited the trial transcript in
addition to Witherspoon I. Thus, even assuming the court did
rely on some portion of the factual summary in Witherspoon I,
Witherspoon has failed to demonstrate the court would have
reached a more favorable result had it ignored the factual
summary.
D. Even Considering the SB 775 Amendments, Witherspoon
Has Not Shown the Superior Court Applied the Wrong
Standard
Witherspoon contends the superior court applied an
incorrect standard of proof at the evidentiary hearing. At the
time of the evidentiary hearing, former section 1170.95,
subdivision (d)(3), provided that “the burden of proof shall be on
the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” SB 775 clarified that
the prosecution must prove, “beyond a reasonable doubt, that the
petitioner is guilty of murder.” (§ 1172.6, subd. (d)(3).)
Witherspoon argues the superior court’s comment that
Witherspoon “could still be convicted” of first degree murder
under section 189, subdivision (e), suggests the court failed to
follow the standard in place at the time of the evidentiary
hearing. Witherspoon also complains about the court’s
statements that “it does not appear that the changes made to
sections 188 and 189 would prevent [Witherspoon] from being
convicted of murder” and that applicable law “suggests
23
[Witherspoon] was a major participant in the underlying crime.”9
While these statements could indicate a lower standard than
“beyond a reasonable doubt,” the court unequivocally stated in its
conclusion that Witherspoon could still be convicted of first
degree murder because he was a major participant in the
underlying crime and acted with reckless indifference to human
life. In supplemental briefing, Witherspoon also argues that
published appellate cases after Witherspoon’s evidentiary hearing
set out what is now an incorrect standard. From this,
Witherspoon infers courts at the time also applied the same
incorrect standard and we “should not presume that the trial
court knew and applied the correct standard.” The People argue
Witherspoon has failed to demonstrate the court applied an
incorrect standard and any error was harmless. We agree that
Witherspoon has failed to show the court applied an incorrect
standard.
Witherspoon bears the burden of affirmatively
demonstrating error. (People v. Gamache, supra, 48 Cal.4th at
p. 378.) We resolve any uncertainty in the record against the
appellant. (Ibid.; People v. Chubbuck (2019) 43 Cal.App.5th 1,
12.) Here, Witherspoon concedes the superior court made
statements indicating the court applied the correct standard.
The court’s process and ruling also support finding it applied the
correct standard. For example, the court did not conduct a quasi-
appellate hearing at which it relied on briefs and argument. It
ordered an evidentiary hearing, engaged in independent fact-
finding, examined the trial court record, and engaged with
9 Witherspoon concedes he was a major participant in the
crime for purposes of his section 1172.6 petition.
24
counsel regarding whether the underlying trial evidence
supported a finding that Witherspoon acted with reckless
indifference to human life under Banks, supra, 61 Cal.4th 788and Clark, supra, 63 Cal.4th 522. The court then concluded that
Witherspoon could still be convicted of first degree murder
because he was a major participant in the underlying crime and
acted with reckless indifference to human life. While the court
may have used some imprecise language, the overall approach it
took, the manner in which it conducted the hearing, and its
ultimate ruling all demonstrate that it applied a standard of
beyond a reasonable doubt, the correct standard even after
SB 775.
E. Substantial Evidence Supports the Superior Court’s Ruling
That Witherspoon Acted with Reckless Indifference to
Human Life
Witherspoon contends insufficient evidence supports the
superior court’s finding that he does not qualify for section 1172.6
relief. Witherspoon does not challenge the court’s finding that he
was a major participant. However, he argues that substantial
evidence did not support the court’s finding he acted with
reckless indifference to human life. The People disagree, arguing
substantial evidence supports a finding, beyond a reasonable
doubt, that Witherspoon acted with reckless indifference to
human life (and that he was the actual killer).10
10 This aspect of Witherspoon’s appeal is not affected by
either the original rationale for the grant of review (the then-
pendency of Lewis, supra, 11 Cal.5th 952), or the subsequent
enactment of SB 775. Lewis addressed when the superior court
must appoint counsel after a petitioner has filed a facially
25
1. The Banks/Clark Factors
Penal Code section 189, as amended, now limits liability
under a felony-murder theory principally to “actual killer[s]”
(§ 189, subd. (e)(1)) and those who, “with the intent to kill,” aid or
abet “the actual killer in the commission of murder in the first
degree” (id., subd. (e)(2)). Defendants who were neither actual
killers nor acted with the intent to kill can be held liable for
murder only if they were “‘major participant[s] in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of [Penal Code] Section 190.2’—that
is, the statute defining the felony-murder special circumstance.”
(Strong, supra, 13 Cal.5th at p. 708; accord, People v. Gentile,
supra, 10 Cal.5th at p. 842.)
In determining whether Witherspoon acted with reckless
indifference to human life, we apply the factors set forth in
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522.
(Accord, In re Scoggins (2020) 9 Cal.5th 667, 676 (Scoggins)
[“Reckless indifference to human life is ‘implicit in knowingly
engaging in criminal activities known to carry a grave risk of
death.’”].)
In Banks the Supreme Court identified factors relevant to
determining whether a defendant was a major participant in the
underlying felony. It also described the state of mind necessary
sufficient 1172.6 petition, and confirmed that after appointment
of counsel and an opportunity for briefing, the superior court may
then consider the record of conviction to “determine whether ‘the
petitioner makes a prima facie showing that he or she is entitled
to relief.’” (Lewis, at p. 957.) SB 775 then clarified what aspects
of the record of conviction the court could consider, among other
issues.
26
to show a reckless indifference to human life: “Awareness of no
more than the foreseeable risk of death inherent in any armed
crime is insufficient; only knowingly creating a ‘grave risk of
death’ satisfies the constitutional minimum.” (Banks, supra,
61 Cal.4th at p. 808.) The Supreme Court distinguished between
“a participant in an armed robbery [who] could anticipate lethal
force might be used” and one who “knew his own actions would
involve a grave risk of death.” (Id. at pp. 807-808.) The factors
identified by the Banks court are: “What role did the defendant
have in planning the criminal enterprise that led to one or more
deaths? What role did the defendant have in supplying or using
lethal weapons? What awareness did the defendant have of
particular dangers posed by the nature of the crime, weapons
used, or past experience or conduct of the other participants?
Was the defendant present at the scene of the killing, in a
position to facilitate or prevent the actual murder, and did his or
her own actions or inaction play a particular role in the death?
What did the defendant do after lethal force was used?” (Id. at
p. 803, fn. omitted.)
Clark then explained the mental state and conduct
necessary to show reckless indifference to human life, and
identified five nonexclusive factors to determine whether a
defendant’s state of mind and conduct meet that standard:11
11 Reckless indifference to human life “encompasses 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.) The necessary state of mind is “‘implicit in
knowingly engaging in criminal activities known to carry a grave
risk of death.’” (Id. at p. 616; accord, Scoggins, supra, 9 Cal.5th
at p. 676.) Thus, the inquiry has subjective and objective
27
(1) the defendant’s knowledge of weapons, the number of
weapons used, and the defendant’s use of weapons; (2) the
defendant’s physical presence at the crime and opportunities to
restrain the crime and/or aid the victim; (3) the duration of the
interaction between the perpetrators of the felony and the
victims; (4) the defendant’s knowledge that his cohort was likely
to kill; and (5) whether the defendant made efforts to minimize
the risk of violence during the felony. (Clark, supra, 63 Cal.4th
at pp. 618-622; see Scoggins, supra, 9 Cal.5th at p. 677.).
The Banks factors interrelate with the Clark factors:
“‘[T]he 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.)
elements. (Scoggins, at p. 677.) “As to the subjective element,
‘[t]he defendant must be aware of and willingly involved in the
violent manner in which the particular offense is committed,’ and
he or she must consciously disregard ‘the significant risk of death
his or her actions create.’ [Citations.] As to the objective
element, “‘[t]he risk [of death] must be of such a nature and
degree that, considering the nature and purpose of the actor’s
conduct and the circumstances known to him [or her], its
disregard involves a gross deviation from the standard of conduct
that a law-abiding person would observe in the actor’s situation.’”
[Citation.] ‘Awareness of no more than the foreseeable risk of
death inherent in any [violent felony] is insufficient’ to establish
reckless indifference to human life; ‘only knowingly creating a
“grave risk of death’” satisfies the statutory requirement.
[Citation.] Notably, ‘the fact a participant [or planner of] an
armed robbery could anticipate lethal force might be used’ is not
sufficient to establish reckless indifference to human life.” (Ibid.)
28
2. The Banks/Clark Factors Show Witherspoon Acted
with Reckless Indifference to Human Life
The superior court analyzed the Clark factors and
compared the facts of this case to the facts in Banks and Clark.
The court concluded that Witherspoon acted with reckless
indifference to human life. Substantial evidence supports the
court’s finding.
Weapons: The first factor supports a finding of reckless
indifference to human life. Witherspoon effectively concedes
(“there was inferential evidence”) he was at the scene of the crime
with his car.12 We accept that factual inference, as we must, in
favor of the court’s ruling. (People v. Mitchell, supra,
81 Cal.App.5th at p. 591.) The evidence also showed that
Witherspoon had two guns with him, based on what he told
Amisa (a semi-automatic rifle in his duffle bag and a smaller gun
that could fit under the seat in his car). Bringing weapons to the
scene of the crime weighs in favor of finding reckless indifference
to human life. (Clark, supra, 63 Cal.4th at p. 618.)
Physical presence and opportunities to restrain crime or aid
the victim: The second factor also supports a finding of reckless
indifference to life. In addition to Witherspoon’s concessions
regarding his presence at the scene of the crime, substantial
evidence supports that conclusion. Rucker had plans to meet
Witherspoon around the time of the shooting to consummate
their drug deal. Amisa saw Witherspoon (and one of his guns) in
his car shortly before the shooting. Witherspoon’s car had
damage from a bullet. The police concluded that the shooter fired
12 Elsewhere, Witherspoon states he “was likely at the
shooting scene.”
29
at Rucker as he lay on the ground, and that some bullets
ricocheted off the ground, which would account for the bullet hole
in the car. The location of the shooting was near where
Witherspoon once lived and still owned a house. Witherspoon
told Harris the location of the shooting before police arrested and
questioned Witherspoon. Taken together, this evidence—albeit
circumstantial—places Witherspoon at the scene of the crime.
(People v. Brooks (2017) 3 Cal.5th 1, 57 [‘“Substantial evidence
includes circumstantial evidence and any reasonable inferences
drawn from that evidence.’”].)
Other evidence relating to the second factor also shows
reckless indifference to human life. Witherspoon was physically
present from the very first telephone conversation arranging to
sell Rucker up to 20 kilograms of cocaine, to meeting with Rucker
in Los Angeles, to collecting the money Rucker brought with him
by transferring it from the gray Ford to his car. Thus,
Witherspoon was present for the “entire sequence of events
culminating in the murder[ ],” and his “[p]roximity to the murder
and events leading up to it [are] particularly significant.” (Clark,
supra, 63 Cal.4th at p. 619.) In addition, Witherspoon could
have, but did not, act “as a restraining influence on murderous
cohorts” if any existed. (Id. at p. 619.) Witherspoon had
approximately a week to alter the plan, abort it, or decide to
simply take the money without killing Rucker. “A defendant is
more culpable when he does nothing to avoid violence despite
having time to reflect and consider his options.” (In re McDowell
(2020) 55 Cal.App.5th 999, 1014.) Moreover, even if, as
Witherspoon speculates without evidence, someone else shot
Rucker, Witherspoon did not call for help or otherwise attempt to
aid Rucker. (See Clark, at p. 619 [failing to make ‘“an effort to
30
help the victims’” shows reckless indifference to human life]; In re
Loza (2017) 10 Cal.App.5th 38, 53-54 [“particularly significant”
that defendant was physically present and did attempt to aid
victim].) Witherspoon argues that he could not have aided
Rucker because the bullets killed him. But the trial evidence
showed, and Witherspoon’s counsel conceded, that Rucker died
after the paramedics arrived, several minutes after the shooting.
Duration of interaction between defendant and victim: This
factor is neutral. The evidence does not indicate Rucker was
“held at gunpoint, kidnapped, or otherwise restrained in the
presence of perpetrators for prolonged periods.” (Clark, supra,
63 Cal.4th at p. 620.) Although Witherspoon spent time with
Rucker during the week before the shooting, and that day, we
cannot say the duration of the interaction during the crime favors
a finding of reckless indifference to human life.
Defendant’s knowledge that his cohort was likely to kill:
This factor does not apply. No evidence supports Witherspoon’s
speculation that someone else killed Rucker.
Efforts to minimize the risk of violence during the felony:
This factor supports the reckless indifference finding. No
evidence suggests Witherspoon did anything to minimize the risk
of violence. Rather, Witherspoon planned to take Rucker’s money
but then met with Rucker after taking his money, with two guns,
apparently to kill him (or aid someone else in doing so). The last
meeting between Rucker and Witherspoon served no purpose
other than for Witherspoon to kill Rucker; Witherspoon already
had the money. Thus, Witherspoon planned the crime to
“elevate[ ] the risk to human life beyond those risks inherent in
any armed robbery.” (Clark, supra, 63 Cal.4th at p. 623.)
31
Witherspoon argues that he took Rucker’s money “non-
violently,” with no evidence he planned to “harm or kill anyone.”
We reject this myopic, inaccurate view of events. Witherspoon
planned, as the superior court found, a “week-long scam” to take
Rucker’s money without exchanging the promised cocaine.
Although the initial taking was “non-violent,” that is only
because Rucker believed he would later get the cocaine.
Substantial evidence supports that Witherspoon intended to kill
Rucker instead of giving him the cocaine. Rather than simply
absconding with Rucker’s money, Witherspoon met with Rucker
again, drove him to a dark street in a neighborhood close to a
freeway, and shot (or, much less likely, had someone else shoot)
Rucker. Witherspoon used the gun for more than merely to
create fear as in a “‘garden-variety armed robbery.’” (Clark,
supra, 63 Cal.4th at p. 617, fn. 74.) Witherspoon used the gun to
“take care of” Rucker, as he had promised, and to keep the money
he already had taken from Rucker under false pretenses.
Contrary to Witherspoon’s speculation that shooting Rucker
reflected a “spontaneous reaction” (by someone), the evidence
showed Witherspoon met Rucker that night for one reason: to kill
him.
32
DISPOSITION
The superior court’s order is affirmed.
HOWARD, J.*
We concur:
PERLUSS, P. J.
SEGAL, J.
* Judge of the Marin County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
33