People v. Owens

Filed 5/18/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B310427
(Super. Ct. No. SM105565)
Plaintiff and Respondent, (Santa Barbara County)
v.
DERECK FLOURNOY
OWENS, JR.,
Defendant and Appellant.
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 “take-
over” robbery/murder. We affirm.
1 All future statutory references are to the Penal Code.
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unpublished opinion.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).)
2
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.
3
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 robbery-
murder 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
4
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
5
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.)
6
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
7
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
8
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.
9
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.
10
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
11
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
12
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 pre-
sentence report which contained hearsay. There is a good reason
why. Appellant’s attorney wanted the trial court to consider the
13
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.
14
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
1
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.
1The 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.
2
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.