People v. Riley CA2/7 ( 2023 )

Filed 12/7/23 P. v. Riley CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B320009
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A365309)
v.
STEVEN ERICK RILEY,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Frederick N. Wapner, Judge. Affirmed.
Michael Allen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Ryan M. Smith, Deputy Attorney
General, for Plaintiff and Respondent.
________________________
INTRODUCTION
In 1982 Steven Erick Riley was tried for the murder of
Michael Fundick during a robbery. At the jury trial, an
eyewitness testified she saw Riley “struggling” and “fighting”
with Fundick with his hands around Fundick’s pockets, causing
Fundick to fall to the ground. Fundick died from head injuries
consistent with a fall onto pavement or a blow to the head. The
evidence indicated Riley acted alone.
The jury found Riley guilty of first degree murder, and he
was sentenced to an indeterminate prison term of 25 years to life.
This court affirmed Riley’s conviction and sentence on direct
appeal in People v. Riley (June 25, 1984), 2d Crim. No. 44019
(unpub. opn.).
In 2019 Riley petitioned for resentencing under former
Penal Code section 1170.95,1 now section 1172.6.2 The People
opposed his petition on the grounds Riley was the “actual killer”
of the victim. The superior court determined Riley was “the
actual perpetrator” of the murder and denied Riley’s petition for
failure to make a prima facie showing for relief. Riley appeals,
arguing the record does not establish he was the actual killer as a
matter of law. We affirm.
1 Statutory references are to the Penal Code.
2 In 2022 section 1170.95 was renumbered without
substantive change. It is now section 1172.6. (See People v.
Strong (2022) 13 Cal.5th 698, 708, fn. 2.)
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Facts at Riley’s Murder Trial
In 1981 Riley was charged with murder (§ 187), with the
special circumstance allegation that it was committed during the
commission of robbery (§ 190.2, subd. (a)(17)); robbery (§ 211);
and assault by means of force likely to produce great bodily
injury (§ 245, subd. (a)). The trial court later dismissed, on the
People’s motion, the robbery and assault charges.
Riley went to trial on the murder charge. His first trial
produced a hung jury. Just before the retrial, the court granted
the People’s motion to dismiss the special circumstance
allegation, leaving only the murder charge.
At the second trial, the People’s evidence showed Riley and
Fundick were seen talking at the Laurel Cafe, a bar on Skid Row,
at 6:00 p.m.3 Half an hour later, an eyewitness saw Riley and
Fundick “struggling” and “fighting” at the corner of 5th and Main
Streets. Riley had his hands around Fundick’s pockets, and,
although the eyewitness did not see Riley strike Fundick, she saw
Fundick fall to the ground. After this altercation, Riley entered a
3 Upon Riley’s request, the trial transcript was incorporated
from the record in his direct appeal into the record in his
resentencing appeal. Further, at the prima facie hearing and on
appeal, Riley did not object to the introduction of facts from our
previous appellate opinion. (See People v. Vance (2023)
94 Cal.App.5th 706, 714 [affirming consideration of the facts from
a prior appellate opinion when the petitioner did not object in the
superior court].) Accordingly, we present the facts from our
previous opinion affirming Riley’s conviction on direct appeal and
from the clerk’s and reporter’s transcripts of Riley’s original trial.
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restaurant on Main Street, where he displayed some folded cash
and stated he “had just robbed an old man.”
Fundick was found lying face-down on the sidewalk,
injured, with his pockets turned inside out and coins, a comb, and
other personal items scattered on the ground around him. He
died four days later from his injuries. The county medical
examiner testified Fundick’s cause of death was “subarachnoid
hemorrhage due to blunt force trauma, which was consistent with
being hit by a fist and inconsistent with the head hitting the
pavement.” A court-appointed pathologist testified, however,
that Fundick’s injuries “were consistent with his head hitting the
pavement.”
At trial, Riley’s defense advanced several theories. Defense
counsel acknowledged “an unfortunate scuffle that resulted in
[Fundick’s] death,” but asserted Riley had not robbed Fundick
and thus was not guilty of felony murder. Defense counsel
argued “[t]here is no murder without a robbery,” and “if while
Mr. Fundick were lying on the sidewalk somebody else came
along and turned out his pockets, then somebody else is guilty of
having robbed him and it is not Steven Riley.” Instead, according
to the defense, Fundick’s injuries were “clearly an accident,” and
Riley should be guilty of involuntary manslaughter at most.
Defense counsel also highlighted the lack of evidence regarding
how Fundick “got from standing on the sidewalk to being face-
down on the sidewalk,” suggested there were “lots of people
around,” and argued to the jury that “[a]nybody could have”
caused Fundick to fall and hit his head.
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B. The Jury Instructions and Jury Verdict
After the close of evidence, the trial court instructed the
jury on first degree murder (CALJIC 8.10), first degree felony
murder (CALJIC 8.21), and involuntary manslaughter (CALJIC
8.45). The jury also received an instruction on the proximate
cause requirement for homicide: “To constitute murder or
manslaughter there must be, in addition to the death of a human
being, an unlawful act which was a proximate cause of that
death. The proximate cause of a death is a cause which, in
natural and continuous sequence, produces the death, and
without which the death would not have occurred.”
The jury returned a general verdict finding Riley guilty of
first degree murder. The trial court sentenced Riley to an
indeterminate term of 25 years to life.
C. Riley’s Petition for Resentencing
In 2019 Riley filed a petition for resentencing under former
section 1170.95, now section 1172.6. Riley’s petition averred he
was convicted of murder under a felony-murder theory or the
natural and probable consequences doctrine and could not be
convicted after changes to section 189 made by Senate Bill
No. 1437.
The People filed their opposition to Riley’s petition in
September 2019 arguing, as relevant here, Riley was ineligible
for relief under then-section 1170.95 as “the actual killer who
personally struck the victim and killed him during the robbery.”
In support, the People submitted this court’s 1984 unpublished
opinion affirming Riley’s conviction and sentence.
Before counsel was appointed, in October 2019 Riley filed a
response to the People’s opposition in pro per. Riley’s response
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presented an alternate account of the altercation between Riley
and Fundick, stating Riley was “violently accosted” by a man
with a bottle of alcohol (presumably Fundick) yelling racial slurs
and death threats, and Riley “threw one blow” in self-defense
before walking away.
In November 2019 the superior court appointed counsel for
Riley. Through his appointed counsel, Riley filed a second
response to the People’s opposition in January 2022. Riley’s
response sought to introduce Riley’s version of events in his
earlier filing as new evidence at the prima facie hearing. It
further argued Riley could not be convicted of murder after the
changes made by Senate Bill No. 1437 because he lacked intent
to kill and did not directly cause the injuries leading to Fundick’s
death.
The superior court held its prima facie hearing on Riley’s
petition in April 2022. On the day of the hearing, the People filed
a supplemental opposition to Riley’s petition, arguing the jury
instructions established Riley was the actual killer as a matter of
law, and Riley’s claim of new evidence was better suited for a
habeas petition. The People submitted the jury instructions from
Riley’s trial in support.
At the hearing, the court asked Riley’s counsel: “[Riley]
was the actual person who inflicted the injury that caused the
death, correct?” Riley’s counsel acknowledged, “That is the way it
was prosecuted, yes.” The superior court then denied Riley’s
petition for failure to state a prima facie case, stating: “[Riley] is
the actual perpetrator of this offense. And it is outside the scope
of 1170.95 to reopen this and say, well, now it’s self-defense.”
Riley filed a timely appeal.
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DISCUSSION
On appeal, Riley argues the record does not establish as a
matter of law he was the actual killer, and thus his petition for
resentencing warrants an evidentiary hearing.
A. Standard of Review
“We independently review a trial court’s determination on
whether a petitioner has made a prima facie showing” under
section 1172.6. (People v. Harden (2022) 81 Cal.App.5th 45, 52
(Harden).) “‘A denial at that stage is appropriate only if the
record of conviction demonstrates that “‘the petitioner is
ineligible for relief as a matter of law.”’” (People v. Ervin (2021)
72 Cal.App.5th 90, 101.)
B. Legal Background
In 2018, through Senate Bill No. 1437, the Legislature
restricted the scope of murder liability, including liability for
felony murder under section 189. (People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).) “Penal Code section 189, as
amended, now limits liability under a felony-murder theory” to
(1) “actual killers;” (2) those who, with the intent to kill, aid or
abet the actual killer; and (3) major participants in the
underlying felony who acted with reckless indifference to human
life. (People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).)
The Legislature also created in section 1172.6 a “special
procedural mechanism for those convicted under the former law
to see retroactive relief under the law as amended.” (Strong,
supra, 13 Cal.5th at p. 708.) Under section 1172.6, “‘the process
begins with the filing of a petition containing a declaration that
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all requirements for eligibility are met’ [citation], including that
‘[t]he petitioner could not presently be convicted of murder or
attempted murder because of changes to [Penal Code]
Section 188 or 189 made effective January 1, 2019,’ the effective
date of Senate Bill 1437.” (Strong, at p. 708; § 1172.6, subd.
(a)(3).) “Additionally, the petition shall state ‘[w]hether the
petitioner requests the appointment of counsel.’” (Lewis, supra,
11 Cal.5th at p. 960; § 1172.6, subd. (b)(1)(C).)
Once a section 1172.6 petition is filed, “the trial court must
appoint counsel for the petitioner, if requested, and determine,
after the opportunity for briefing and a hearing, whether the
defendant has made a prima facie case for relief under section
1172.6.” (People v. Pickett (2023) 93 Cal.App.5th 982, 988, review
granted October 11, 2023, S281643; § 1172.6, subds. (b)(3), (c).) A
petition will raise a prima facie case for relief with “a showing
that the petitioner was convicted of murder, attempted murder,
or manslaughter under a theory no longer valid under the
amended Penal Code.” (People v. Lee (2023) 95 Cal.App.5th 1164,
1174.) If a petitioner makes a prima facie showing, “the judge
must issue an order to show cause and hold ‘a hearing’” to
determine whether the petitioner is entitled to resentencing
relief. (People v. Clements (2022) 75 Cal.App.5th 276, 291;
§ 1172.6, subds. (c), (d).)
When assessing a petitioner’s prima facie showing, the
superior court examines the record of conviction but should not
“engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’” (Lewis, supra, 11 Cal.5th at p. 972.) The
superior court accepts the “‘“petitioner’s factual allegations as
true and makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
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allegations were proved.”’” (People v. Patton (2023)
89 Cal.App.5th 649, 656, review granted June 28, 2023,
S279670.) But “‘if the record, including the court’s own
documents, “contain[s] facts refuting the allegations made in the
petition,” then “the court is justified in making a credibility
determination adverse to the petitioner”’” and denying the
petition at the prima facie stage. (Lewis, at p. 971.)
C. The Trial Court Did Not Err by Ruling that Riley Was the
“Actual Killer” and Denying His Section 1172.6 Petition
“As a matter of law, resentencing relief under
section 1172.6 is not available to an ‘actual killer,’” because an
“actual killer” remains liable for felony murder after the
amendments to section 189. (People v. Garcia (2022)
82 Cal.App.5th 956, 973.) An “‘actual killer’” is “the actual
perpetrator of the killing, i.e., the person (or persons) who
personally committed the homicidal act.” (People v. Vang (2022)
82 Cal.App.5th 64, 88; accord, Garcia, at p. 970 [actual killer is
“the person who ‘personally’ killed the victim”]; People v. Lopez
(2022) 78 Cal.App.5th 1, 20 (Lopez) [same].) By contrast, a
person who only “commits an act that is the proximate cause of
the victim’s death” may be liable for felony murder, but he is not
an “actual killer” without personally killing the victim. (Lopez, at
p. 17.)
The superior court denied Riley’s petition because it
determined he was the “actual killer” after his counsel conceded
that was how the case was presented to the jury by the
prosecution, i.e., that Riley was the “actual person who inflicted
the injury that caused [Fundick’s] death.” But according to Riley,
despite this concession, the record does not establish he was the
9
actual killer. Instead, he argues, the record leaves open the
possibility that his conduct was simply the proximate cause of
Fundick’s death.
Riley relies heavily on Lopez, supra, 78 Cal.App.5th 1,
arguing an evidentiary hearing is necessary to determine
whether he was the actual killer. Lopez examined whether a
section 1172.6 petitioner convicted of murder was necessarily
convicted as an “actual killer.” Like Riley, the petitioner in Lopez
was charged with the murder of a victim during a robbery and
“prosecuted solely under the theory he was the actual killer and
committed the robbery alone.” (Id. at p. 15.)
Lopez testified at trial that he and his drug dealer, Ivan
Argueta, drove to the victim’s apartment to help Argueta “‘move
out’” after a fight with the victim, Argueta’s boyfriend. (Id. at
p. 9.) Lopez testified he remained in the living room of the
apartment, drinking a glass of water, while Argueta was
“screaming” and “moving around” elsewhere in the house. (Ibid.)
Lopez and Argueta then left with belongings from the apartment;
the victim was later found dead in the bedroom. (Id. at pp. 6-7,
9.) Noting the lack of “eyewitnesses to the murder” or “any direct
evidence of who bludgeoned the victim,” the Lopez court
concluded the jury could have convicted Lopez on a theory of
felony murder without finding Lopez personally killed the victim.
(Id. at p. 19.) The court emphasized the jury instructions
prescribed liability for felony murder if the defendant “committed
robbery and ‘[w]hile committing robbery, the defendant caused
the death of another person.’” (Id. at p. 16, italics omitted.) The
jury instructions further explained: “‘An act causes death if the
death is the direct, natural, and probable consequence of the act
and the death would not have happened without the act.’” (Ibid.)
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On the basis of these instructions, Lopez reasoned, “[t]he jury
might have found defendant, though not the actual killer,
participated somehow in the home invasion robbery, and the
victim’s death was the direct, natural, and probable consequence
of an act committed in the course of his participation.” (Id. at
p. 20.)4
Unlike Lopez, the record of conviction in Riley’s case
establishes Riley was the actual killer as a matter of law because
there was no evidence at trial of an accomplice who could have
been the actual killer. The defendant in Lopez argued at trial
that he was present at the scene of the crime, but his accomplice
Argueta was the actual killer. (Lopez, supra, at 78 Cal.App.5th
at p. 15.) The Lopez court recognized the jury might have
accepted Lopez’s theory that Argueta was the actual killer and
still convicted Lopez of felony murder based on his involvement
in the robbery. (Id. at p. 20.) Riley, by contrast, presented no
equivalent defense theory. Riley maintains there is still “the
possibility that someone other than Riley knocked the victim to
the ground and caused his death.” Riley’s only support is his trial
defense counsel’s closing argument that “‘[t]here is no evidence as
to how Mr. Fundick got from standing on the sidewalk to being
4 The People rely on Harden, supra, 81 Cal.App.5th 45,
where the court held petitioner was the “actual killer,” in part
because the jury convicted her of felony murder using a jury
instruction stating that “‘every person who unlawfully kills a
human being . . . is guilty of “murder.”’” (Id. at pp. 54-55.) Riley
responds that the jury at his trial did not receive the same
version of the jury instruction as in Harden. Because we agree
with Riley on this point, we do not rely on the People’s Harden
argument.
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face-down on the sidewalk’” and there were “‘lots of people
around before, during, and after. Anybody could have done it.’”
But, as noted above, the record of conviction contains no
evidence of an accomplice who might have been the actual killer.
(See, e.g., People v. Bodely, supra, 95 Cal.App.5th at p. 1201
[petitioner convicted of felony murder was “actual killer” as a
matter of law because “[t]he evidence at trial revealed no
indication of any accomplice”]; People v. Pickett, supra,
93 Cal.App.5th at p. 990 [same, where “there is nothing to
suggest that any other person was involved in the incident”];
People v. Patton, supra, 89 Cal.App.5th at p. 657 [same,
because“[i]n the trial court, Patton never offered any theory to
support his implicit contention now that he was an accomplice
and not the person who actually shot [the victim]”]; People v.
Delgadillo (2022) 14 Cal.5th 216, 233 [affirming petitioner was
“actual killer” as a matter of law where “the record here makes
clear that Delgadillo was the actual killer and the only
participant in the killing”].) And, even before the amendments
made by Senate Bill No. 1437, the jury could not have convicted
Riley on a felony murder theory for the actions of an unknown
“actual killer” entirely unassociated with Riley. (People v. Pulido
(1997) 15 Cal.4th 713, 719 [describing felony murder accomplice
liability, prior to Senate Bill No. 1437, as “limited” to “killings
occurring while the killer was acting in furtherance of a criminal
purpose common to himself and the accomplice, or while the
killer and accomplice were jointly engaged in the felonious
enterprise”].) By finding Riley guilty of first degree murder, the
jury rejected Riley’s unknown-killer defense and convicted Riley
as the actual and sole killer.
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The superior court properly denied Riley’s section 1172.6
petition for failure to make a prima facie showing.
DISPOSITION
The order denying the petition for resentencing under
section 1172.6 is affirmed.
MARTINEZ, J.
We concur:
SEGAL, Acting P. J.
EVENSON, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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