P. v. Witherspoon

Filed 10/22/20 P. v. Witherspoon CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,
v.
RODERICK WITHERSPOON,
Defendant and Appellant.
B303406
(Los Angeles County
Super. Ct. No. BA008291)
APPEAL from an order of the Superior Court of Los
Angeles County, David Herriford, Judge. Affirmed.
Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and Idan Ivri and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION
Roderick Witherspoon appeals from the superior court’s
order denying his petition under Penal Code section 1170.95,1
which allows certain defendants convicted of murder under a
felony murder or natural and probable consequences theory to
petition the court to vacate their convictions and for resentencing.
In 1991 a jury found Witherspoon guilty of first degree murder
for the robbery and murder 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.
After Witherspoon filed a petition under section 1170.95,
the superior court appointed counsel for Witherspoon and held an
evidentiary hearing on the petition, even though the court never
issued an order to show cause under section 1170.95,
subdivision (c). The court denied the petition, ruling
Witherspoon “could still be convicted” of first degree felony
murder under section 189, subdivision (e)(3). The court
concluded Witherspoon was a major participant in the underlying
felony who acted with reckless indifference to human life, as
defined by People v. Clark (2016) 63 Cal.4th 522 (Clark) and
People v. Banks (2015) 61 Cal.4th 788 (Banks).
Witherspoon contends the court erred by applying the
wrong burden of proof and relying on inadmissible hearsay. He
also argues there was insufficient evidence he acted with reckless
1 Undesignated statutory references are to the Penal Code.

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indifference to human life. Because none of Witherspoon’s
arguments has merit, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Witherspoon of Murder
1. Someone Shoots Rucker for Drug Money
On August 28, 1989 Vincent Rucker flew to Los Angeles
from Michigan with several hundred thousand dollars at his
disposal to buy cocaine for resale back in Michigan. A friend of
Rucker’s father introduced Rucker by phone to Witherspoon, who
told Rucker and his father he had 15 kilograms of cocaine and
could get five more. Witherspoon told Rucker’s father he would
“take care” of Rucker, and Witherspoon met with Rucker several
times over the next week. On September 5, 1989 Rucker told his
father that he planned to meet Witherspoon the next day and
that he hoped to return to Michigan that night.
On the afternoon of September 6, 1989 Rucker visited his
sister, who lived in Los Angeles with her husband, Joel
Muwwakkil. Witherspoon and a friend of Rucker’s from
Michigan named Bill were also there. Muwwakkil saw a gray
Ford with a Michigan license plate in his driveway. He went
outside and saw Bill and two other men next to the car.
Muwwakkil could see a pillowcase and “neat stacks of money”
covering the backseat of the Ford. Muwwakkil watched as
Witherspoon backed his red Nissan Maxima into the driveway
and Rucker carried a nearly full pillowcase from the Ford to the
Nissan and placed it on the backseat. Rucker told his sister that
he “had to make a run” and that, when he returned, he wanted
her to drive him to the airport. Rucker left with Witherspoon in

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the Nissan, but instead of returning to his sister’s house later
that night, he stayed with Witherspoon at the home of
Witherspoon’s girlfriend.
The next afternoon Rucker went alone to a “bikini bar”
near his motel. Rucker called Muwwakkil from the bar and
asked to meet him and Bill at Muwwakkil’s house at 9:30 p.m.
that night. Rucker told Muwwakkil he was ready to go home to
Michigan. Rucker left the bar alone. At 8:23 p.m. Witherspoon
called Rucker’s motel.
At 8:35 p.m. Witherspoon went to the home of Amisa
Durham and her sister. Witherspoon showed Durham
“expensive” new clothes and shoes he bought that day. He asked
Durham if she would help him count some money, and she
initially agreed. Witherspoon took a luxury brand duffel bag
with the handles still wrapped in packaging and brought it inside
the house. Under the “bundles of money” in the bag was a black
vinyl briefcase containing a semi-automatic rifle that
Witherspoon told Durham he needed for protection on the street.
Witherspoon said he had another smaller gun under the seat of
his car. Durham, who worked in the Los Angeles Police
Department property room, told Witherspoon she could not help
him count the money. Witherspoon left Durham’s house between
8:50 p.m. and 9:05 p.m.
At 9:25 p.m. Vincent Cash heard a single gunshot and then
a burst of gunshots. Cash lived near a freeway three and a half
miles from Durham’s house and in a neighborhood where
Witherspoon used to live and still owned a house. Cash was
watching television at the time and talking on the phone when he
heard the shots, and he did not hear a car stopping, a car door
slamming, or voices. Cash stayed on the floor for a few minutes,

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got up, looked out his window, and saw a body in the street. He
called the 911 emergency operator at 9:27 p.m. Paramedics
arrived to find Rucker still alive, but he soon bled to death from
nine gunshot wounds. Meanwhile, also at 9:25 p.m. Rucker’s
friend Bill called Muwwakkil asking about Rucker, and at
9:30 p.m. Bill arrived at Muwwakkil’s house.
The next day Rucker’s sister learned of Rucker’s death and
called their father, George Harris. Harris called Witherspoon,
who told Harris that Rucker borrowed Witherspoon’s car to drive
home a dancer named Taboo from the bikini bar. Witherspoon
said that Taboo’s ex-boyfriend must have been home when she
arrived and that he must have shot Rucker and driven away in
Witherspoon’s car. Witherspoon told Harris that his car had very
little gas and that “‘whoever did Vince’” must have run out of gas
and abandoned the car just off the freeway near the location
where Rucker was shot. Witherspoon told Harris the police found
the car and impounded it, but that 12 kilograms of cocaine and
$30,000 “left over” from the drug deal were still in the trunk.
Witherspoon told Harris he would recover his car and send
Harris the cocaine and the cash still inside. The next day
Witherspoon again spoke to Harris, but claimed Taboo’s “cousin”
killed Rucker.
2. The Police Investigate
A police investigation determined the weapon used to kill
Rucker was a Smith & Wesson 9-millimeter automatic pistol.
Investigators found 13 casings near Rucker’s body, and they
concluded several shots struck the road and ricocheted. Rucker’s
wallet was left undisturbed in his pocket, along with a piece of
paper with the name “Rod” and Witherspoon’s phone number.

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Autopsy findings showed that Rucker was shot once in the back
and several more times while he was on the ground.
Police questioned Witherspoon on September 11, 1989, four
days after the shooting. Witherspoon told police he went to a
bikini bar with Rucker the evening of the murder. He said that
at approximately 8:00 p.m. Rucker “had a hassle” with Taboo’s
boyfriend and that Rucker borrowed Witherspoon’s car to drive
Taboo home. An hour later Taboo paged Witherspoon and told
him her boyfriend shot Rucker.2 Police investigators located
Taboo, but she had not worked at the bikini bar for several
months, and on the day of the shooting she was at home
recovering from a nervous breakdown. Taboo told police she did
not know and had never heard of Rucker or Witherspoon.
Police obtained a search warrant for Witherspoon’s car,
which had not been impounded. Witherspoon’s wife led police to
the car, which was parked several miles from Witherspoon’s
residence. The car was marred by scrapes and dents, the trunk
was wired shut, and there was evidence of a bullet ricochet on
one side. The police did not find any cocaine, cash, guns, bullets,
or blood in the car, but they did recover an empty luxury brand
duffel bag from Witherspoon’s closet.
Police arrested Witherspoon for Rucker’s murder on
September 14, 1989. From jail Witherspoon made several phone
calls. He called Harris and told him Taboo had been killed and
the police arrested him for her murder. He also told Harris that
2 “For those born after the year 2000, a pager is ‘a small
radio receiver that beeps, vibrates, or flashes to alert the user to
an incoming message[,] which is usually displayed on a small
screen,’ widely used in the era preceding cell phones.” (Brackin v.
Medtronic, Inc. (W.D. Tenn., Sept. 14, 2017, No. 17-CV-2101-
SHL-CGC) 2017 WL 5957204, at p. 1, fn. 3.)

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he recovered his impounded car and that he would send Harris
what Rucker “had coming.” Witherspoon also called a neighbor
and asked him to tell police he drove Witherspoon’s car home on
the evening of the murder, but Witherspoon’s neighbor said he
would not lie to police. Finally, Witherspoon called Durham and
asked her to tell her sister to tell police that, on a date
Witherspoon specified but Durham could not remember,
Durham’s sister picked up Witherspoon in West Covina at
9:00 p.m. in her car.
3. A Jury Convicts Witherspoon, and This Court
Affirms the Judgment
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). In a
pretrial hearing the trial court granted Witherspoon’s motion
under 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 crime of 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. 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.”

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The jury found Witherspoon guilty of first degree murder
without specifying whether Witherspoon committed premeditated
murder or felony murder. The verdict form mistakenly included
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.3 In
May 1991 the court sentenced Witherspoon to a prison term of
25 years to life.
In 1994 this court affirmed the judgment. (People v.
Witherspoon (Mar. 14, 1994, B061260) [nonpub. opn.]
(Witherspoon I).) Witherspoon argued, among other things, that
there was insufficient evidence of premeditated or felony murder
and that the trial court erred in instructing the jury on an aiding
and abetting theory. This court held there was substantial
evidence Witherspoon murdered Rucker deliberately and with
3 The People argue Witherspoon is ineligible for relief under
section 1170.95 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
1170.95.

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premeditation and during the commission of a robbery.4 With
regard to the aiding and abetting instruction, this court stated
that, 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,” the trial court
properly instructed the jury on aiding and abetting.
B. The Legislature Enacts Senate Bill No. 1437 and
Establishes the Section 1170.95 Petition Procedure
Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4), effective
January 1, 2019, amended the felony murder rule and eliminated
the natural and probable consequences doctrine as it relates to
murder by amending sections 188 and 189. New section 188,
subdivision (a)(3), provides, “Except as stated in subdivision (e) of
Section 189, in order to be convicted of murder, a principal in a
crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.” New section 189, subdivision (e), provides that, with
respect to a participant in the perpetration or attempted
perpetration of a felony listed in section 189, subdivision (a), in
which a death occurs (that is, those crimes that provide the basis
for first degree felony murder), an individual is liable for murder
4 The People argue Witherspoon is ineligible for relief under
section 1170.95 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 required by section 1170.95, subdivision
(d)(3).

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“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.” (See People v. Galvan (2020) 52 Cal.App.5th
1134, 1140 [Senate Bill No. 1437 “eliminated the natural and
probable consequences doctrine as a basis for murder liability,
and added a requirement for felony murder that a defendant
must have been at least a major participant in the underlying
felony and have acted with reckless indifference to human life”],
review granted Oct. 14, 2020, S264284.)
Senate Bill No. 1437, through new section 1170.95, also
authorizes an individual convicted of felony murder or murder
under a natural and probable consequences theory to petition the
sentencing court to vacate the conviction and to be resentenced
on any remaining counts if the individual could not have been
convicted of murder under Senate Bill No. 1437’s changes to the
definition of the crime. The petition must include a declaration
by the petitioner he or she is eligible for relief under this section,
the superior court case number and year of the petitioner’s
conviction, and a statement whether the petitioner requests the
appointment of counsel. (§ 1170.95, subd. (b)(1); see People v.
Verdugo (2020) 44 Cal.App.5th 320, 326-327, review granted
Mar. 18, 2020, S260493 (Verdugo).)5
5 The Supreme Court deferred briefing in Verdugo, supra,
S260493 pending its decision in People v. Lewis (2020)
43 Cal.App.5th 1128, review granted March 18, 2020, S260598.

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If the petition contains all required information, and the
court determines the petition is facially sufficient,
section 1170.95, subdivision (c), prescribes a two-step procedure
for the court to determine whether to issue an order to show
cause: “‘The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section. If the petitioner has
requested counsel, the court shall appoint counsel to represent the
petitioner. The prosecutor shall file and serve a response . . . and
the petitioner may file and serve a reply . . . . If the petitioner
makes a prima facie showing that he or she is entitled to relief,
the court shall issue an order to show cause.’” (Verdugo, supra,
44 Cal.App.5th at p. 327.) Thus, section 1170.95, subdivision (c),
“prescribes two additional court reviews before an order to show
cause may issue, one made before any briefing to determine
whether the petitioner has made a prima facie showing he or she
falls within section 1170.95—that is, that the petitioner may be
eligible for relief—and a second after briefing by both sides to
determine whether the petitioner has made a prima facie
showing he or she is entitled to relief.” (Verdugo, at pp. 327-328.)
If the court determines the petitioner has made a prima
facie showing and the court issues an order to show cause, the
court must hold a hearing to determine whether to vacate the
murder conviction and to recall the sentence and resentence the
The Supreme Court limited briefing and argument in Lewis to
the following issues: (1) May superior courts consider the record
of conviction in determining whether a defendant has made a
prima facie showing of eligibility for relief under Penal Code
section 1170.95? (2) When does the right to appointed counsel
arise under Penal Code section 1170.95, subdivision (c)?

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petitioner on any remaining counts. (§ 1170.95, subd. (d)(1); see
Verdugo, supra, 44 Cal.App.5th at p. 327.) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).) The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence. (See
People v. Tarkington (2020) 49 Cal.App.5th 892, 898-899, review
granted Aug. 12, 2020, S263219; People v. Edwards (2020)
48 Cal.App.5th 666, 674, review granted July 8, 2020, S262481;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted
Mar. 18, 2020, S260598.)
C. Witherspoon Files a Petition Under Section 1170.95
On February 27, 2019 Witherspoon filed a petition under
section 1170.95, using “a downloadable form petition/declaration
prepared by Re:Store Justice, a cosponsor of the legislation (see
Sen. Com. on Public Safety, Rep. on Sen. Bill No. 1437
(2017-2018 Reg. Sess.) as amended Feb. 16, 2018, p. 1).”
(Verdugo, supra, 44 Cal.App.5th at p. 324.) The form petition
“consists of a declaration with boxes to be checked against
averments essentially tracking the statutory language as to the
prerequisites for filing a petition and demonstrating a prima facie
showing that the petitioner falls within the provisions of section
1170.95 and is eligible for relief.” (People v. Edwards, supra,
48 Cal.App.5th at p. 670.)
Witherspoon checked almost every box on the form petition.
Specifically, he checked boxes alleging (1) “A complaint,
information, or indictment was filed against me that allowed the
prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine”; (2a) “At

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trial, I was convicted of 1st or 2nd degree murder pursuant to the
felony murder rule or the natural and probable consequences
doctrine”; (3) “I could not now be convicted of 1st or 2nd degree
murder because of changes made to Penal Code § § 188 and 189,
effective January 1, 2019”; (4) “I request that this court appoint
counsel for me during this re-sentencing process”; and (5) “I was
convicted of 1st degree felony murder and I could not now be
convicted because of changes to Penal Code § 189, effective
January 1, 2019 . . . .” In connection with this last checked box,
Witherspoon checked sub-boxes alleging “I was not the actual
killer”; “I did not, with the intent to kill, aid, abet, counsel,
command, induce, solicit, request, or assist the actual killer in
the commission of murder in the first degree”; “I 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 “The
victim of the murder was not a peace officer . . . .” Finally,
Witherspoon checked the box alleging “There has been a prior
determination by a court or jury that I was not a major
participant and/or did not act with reckless indifference to human
life under Penal Code § 190.2(d). Therefore, I am entitled to be
re-sentenced pursuant to § 1170.95(d)(2).”
The superior court appointed counsel for Witherspoon, and
the prosecutor filed an informal opposition to Witherspoon’s
petition. The prosecutor argued Witherspoon was ineligible for
relief under section 1170.95 because the evidence at trial showed
Witherspoon was the actual killer or a major participant who
acted with reckless indifference to human life. On May 13, 2019
the prosecutor filed an addendum to the informal reply attaching
this court’s 1994 opinion. On June 25, 2019 Witherspoon filed a
reply asserting he neither robbed nor killed Rucker, and the

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prosecutor filed another addendum with the reporter’s transcript
and clerk’s transcript from Witherspoon’s 1991 trial.
The superior court never found Witherspoon made a prima
facie showing he fell within the provisions of section 1170.95, nor
did the court issue an order to show cause. The court
nevertheless set an evidentiary hearing and held it on
December 13, 2019, after which the court denied the petition.
The court ruled Witherspoon was not entitled to relief under
section 1170.95 because Witherspoon “could still be convicted” for
first degree murder under amended sections 188 and 189 because
he was a major participant in the robbery and acted with reckless
indifference to human life. The superior court also stated
Witherspoon “likely pulled the trigger himself,” but the court
stopped short of making a factual finding Witherspoon was the
“actual killer” under section 189, subdivision (e)(1). Witherspoon
timely appealed.
DISCUSSION
A. Standard of Review
We agree with the parties the superior court’s ruling was a
decision on the merits of Witherspoon’s petition following an
evidentiary hearing under section 1170.95, subdivision (d). While
the superior court did not issue an order to show cause under
section 1170.95, subdivision (c), it appears the court intended the
December 13, 2019 hearing to be an evidentiary hearing under
section 1170.95, subdivision (d). In particular, the superior court
invited the parties to submit new or additional evidence outside
the record of conviction, as contemplated by section 1170.95,
subdivision (d)(3).

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The parties also acknowledge there is no published decision
establishing the standard of review for a superior court order
denying a petition under section 1170.95 following an evidentiary
hearing. The standard of review for decisions determining a
petitioner’s eligibility for resentencing under Proposition 47, the
Safe Neighborhoods and School Act of 2014 (§ 1170.18), however,
is instructive. Like courts ruling on petitions under section
1170.95, courts considering whether to resentence petitioners
under Proposition 47 may consider evidence outside the record of
conviction and, if necessary, make factual findings. (See People v.
Sledge (2017) 7 Cal.App.5th 1089, 1095 [“‘[a]n evidentiary
hearing is required if . . . there is a reasonable likelihood that the
petitioner may be entitled to relief and the petitioner’s
entitlement to relief depends on the resolution of an issue of
fact’”].) Although section 1170.95 creates a mechanism arguably
broader than the “sentencing proceeding” prescribed by
Proposition 47 (Sledge, at p. 1095), and the burden of proof on the
prosecutor is higher under section 1170.95 (beyond a reasonable
doubt) than the burden of proof under Proposition 47
(preponderance of the evidence), the standard of appellate review
should be the same: “‘Where the trial court applies disputed facts
to . . . a statute, we review the factual findings for substantial
evidence and the application of those facts to the statute de novo.
[Citation.] “‘[A]n order is presumed correct; all intendments are
indulged in to support it on matters as to which the record is
silent, and error must be affirmatively shown.’” [Citation.]
In addition, we must “‘view the record in the light most favorable
to the trial court’s ruling.’”’” (Sledge, at pp. 1095-1096; see
People v. Drayton (2020) 47 Cal.App.5th 965, 981 [citing Sledge
for the standard of review of an order denying a petition under

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section 1170.95, but applying only the de novo standard of review
to the superior court’s interpretation of section 1170.95]; People v.
Salmorin (2016) 1 Cal.App.5th 738, 743 [appellate court reviews
factual findings by a superior court in a Proposition 47
proceeding for substantial evidence].)
B. The Superior Court Did Not Prejudicially Err in
Referring to the Statement of Facts in Witherspoon I
Witherspoon argues the superior court improperly
“premised” its denial of Witherspoon’s petition on inadmissible
hearsay contained in the statement of facts section of this court’s
opinion in Witherspoon’s direct appeal. Witherspoon, however,
forfeited this argument by not making it in the trial court and, in
any event, it is based on a false premise; namely, that the trial
court relied solely on the statement of facts in Witherspoon I.
And any error was harmless.
Section 1170.95, subdivision (d)(3), authorizes the
prosecutor and the petitioner to rely on the record of conviction or
to offer new evidence to meet their respective burdens. The
“record of conviction” includes a court of appeal opinion and the
trial record. (People v. Tarkington, supra, 49 Cal.App.5th at
p. 899 & fn. 5; Verdugo, supra, 44 Cal.App.5th at p. 333.) The
prosecutor here gave the court a copy of this court’s opinion in
Witherspoon I. Witherspoon, in his response to the prosecutor’s
informal opposition, did not object to the statement of facts in
Witherspoon I or offer any new or additional evidence outside the
record of conviction.
At an October 29, 2019 hearing to calendar an evidentiary
hearing on Witherspoon’s petition, the superior court stated that
the petition was “fully briefed,” but the court told the parties that
“if you do want to file anything else, you can.” Again,

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Witherspoon did not submit any additional pleadings or evidence.
At the evidentiary hearing the superior court stated it had “read
and considered the pleadings . . . including the exhibits attached
thereto,” which included the full 1991 trial record. Throughout
the hearing, the parties and the court referred to the facts of the
case as presented in the Witherspoon I opinion, and Witherspoon
never objected. For example, the court stated, “The Court of
Appeal opinion . . . set[s] forth [a] scenario . . . on pages 17 and
18” that “seems to be the only logical scenario the jury could have
[found] in order to determine the guilty verdict.” In response to
the court’s comment, counsel for Witherspoon referred to the
1991 trial transcript and gave the court a relevant excerpt, but
counsel never objected to the facts presented in the Witherspoon I
opinion. Toward the end of the hearing the court told counsel for
Witherspoon it did not believe there was sufficient evidence to
grant the petition, based “particularly on the Court of Appeal
opinion,” but the court invited counsel for Witherspoon to submit
“anything else that you want me to consider prior to the ruling.”
Again, Witherspoon did not object to the superior court’s
reference to the facts discussed in this court’s prior opinion or
submit any new evidence to refute them.
Even if the statement of facts in the Witherspoon I opinion
contains hearsay, an issue we need not address, “‘the failure to
object to . . . hearsay at trial forfeits an appellate claim that such
evidence was improperly admitted.’” (People v. Perez (2020)
9 Cal.5th 1, 7; accord, People v. Stevens (2015) 62 Cal.4th 325,
333; see Evid. Code, § 353, subd. (a).) “‘“The reason for the
[objection] requirement is manifest: a specifically grounded
objection to a defined body of evidence serves to prevent error. It
allows the trial judge to consider excluding the evidence or

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limiting its admission to avoid possible prejudice. It also allows
the proponent of the evidence to lay additional foundation, modify
the offer of proof, or take other steps designed to minimize the
prospect of reversal.”’” (Perez, at p. 7; see People v. Partida (2005)
37 Cal.4th 428, 434.) By failing to object in the superior court to
the statement of facts in the Witherspoon I opinion, Witherspoon
deprived the court of the ability to prevent error by relying on the
trial record instead of the statement of facts in Witherspoon I.
Finally, even if Witherspoon did not forfeit his hearsay
argument, he has not demonstrated it is reasonably probable the
superior court would have reached a more favorable result in the
absence of any error. (See People v. Covarrubias (2016) 1 Cal.5th
838, 886-887 [erroneous admission of hearsay evidence under
state law is reviewed for prejudice under the standard articulated
in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)]; People v.
Yor Xiong (2020) 54 Cal.App.5th 1046, 1071 [same].) In
particular, Witherspoon has not identified any portion of the
Witherspoon I statement of facts that misstated the evidence at
trial, nor has he demonstrated that the superior court relied
solely on the statement of facts in Witherspoon I to the exclusion
of the trial transcript. The superior court stated in its ruling that
it took the background facts of the case “predominantly,” but not
solely, from our prior decision, and the superior court cited the
clerk’s transcript from the trial as well as the Witherspoon I
opinion.
C. The Superior Court Did Not Prejudicially Err by
Applying the Wrong Burden of Proof
Section 1170.95, subdivision (d)(3), provides that “the
burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is ineligible for

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resentencing.” Witherspoon speculates the superior court failed
to hold the prosecutor to this standard because the court stated
in its ruling that Witherspoon “could still be convicted” of first
degree murder under section 189, subdivision (e). Section
1170.95, subdivision (a)(3), however, provides that a condition of
vacating a conviction and resentencing the petitioner on any
remaining counts is that the petitioner “could not be convicted of
first or second degree murder because of changes to Section 188
or 189 made effective January 1, 2019.” Thus, the language in
the superior court’s ruling Witherspoon points to is language in
the statute; it does not indicate the superior court failed to apply
the beyond-a-reasonable-doubt standard.
Witherspoon also complains about the superior 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
[Witherspoon] was a major participant in the underlying crime.”
While these statements could indicate a lower standard than
“beyond a reasonable doubt,” the superior 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. If, as Witherspoon suggests, the superior court “merely
perform[ed] a quasi-appellate review” that considered the
sufficiency of the evidence, the court would not have ordered an
evidentiary hearing or considered at length whether Witherspoon
was a major participant who acted with reckless indifference to
human life under Banks and Clark. Instead, the superior court
could have ruled, based on this court’s decision in Witherspoon I,
that Witherspoon was the actual shooter and therefore was
ineligible for relief under section 1170.95. Moreover, in the
absence of evidence to the contrary, “we presume that the

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court ‘knows and applies the correct statutory and case law.’”
(People v. Thomas (2011) 52 Cal.4th 336, 361; see Wade v.
Superior Court (2019) 33 Cal.App.5th 694, 716, fn. 9.) The court’s
occasional use of imprecise language does not undermine the
gravamen of the court’s ruling that Witherspoon is ineligible for
relief under section 1170.95.
Finally, to the extent the superior court may have held the
prosecutor to a lower burden of proof than beyond a reasonable
doubt, any error was harmless under Watson. The retroactive
relief provided by section 1170.95 is a legislative “act of lenity”
intended to give inmates serving otherwise final sentences the
benefit of ameliorative changes to applicable criminal laws.
(People v. Lopez (2019) 38 Cal.App.5th 1087, 1115, review
granted Nov. 13, 2019, S258175; see People v. Howard (2020)
50 Cal.App.5th 727, 740; People v. Anthony (2019) 32 Cal.App.5th
1102, 1156-1157.) Thus, petitioners under section 1170.95 do not
have a Sixth Amendment right to have a jury make new factual
determinations about their liability beyond a reasonable doubt.
(Anthony, at p. 1156; see Lopez, at pp. 1114-1115 [retroactive
relief afforded by Senate Bill No. 1437 is not subject to Sixth
Amendment analysis]; cf. People v. Perez (2018) 4 Cal.5th 1055,
1064-1065 [Proposition 36 does not implicate the Sixth
Amendment right to have a jury find essential facts beyond a
reasonable doubt]; People v. Superior Court (Kaulick) (2013)
215 Cal.App.4th 1279, 1304 [the retrospective part of
Proposition 36 is not constitutionally required].)
Thus, even if the superior court erred by applying a lower
standard of proof than beyond a reasonable doubt, such as a
preponderance of the evidence, the court violated only state
statutory law, not federal constitutional law. (Cf. People v.
Frierson (2017) 4 Cal.5th 225, 235-239 [the beyond-a-reasonable-
doubt standard of proof under Proposition 36 is based on an

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interpretation of state law and the structure and language of the
statute].) Therefore, such an error is harmless unless the
petitioner can show it is reasonably probable he or she would
have obtained a more favorable result absent the error.
(Cf. People v. Johnson (2016) 1 Cal.App.5th 953, 968. [Watson
harmless error standard applied to the trial court’s error on a
defendant’s resentencing petition under Proposition 47].) As
explained in the next section, even if the superior court applied
the wrong standard, it is not reasonably probable the court would
have found Witherspoon eligible for relief under section 1170.95
had the superior court applied the correct standard because
overwhelming evidence showed Witherspoon was, at a minimum,
a major participant in the robbery murder who acted with
reckless indifference to human life.
D. Substantial Evidence Supported the Superior Court’s
Finding That Witherspoon Acted with Reckless
Indifference to Human Life
As discussed, the superior court concluded Witherspoon
was a major participant in the robbery who acted with reckless
indifference to human life. Witherspoon does not challenge the
court’s finding that he was a major participant, but contends
substantial evidence did not support the court’s finding he acted
with reckless indifference to human life.6
6 Witherspoon also argues the superior court erred in finding
Witherspoon had the intent to kill Rucker, but the superior court
did not make such a finding.

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1. Applicable Law
As stated, section 189, subdivision (e), provides that a
participant in a robbery where a death occurs may be liable for
murder if the person was “a major participant in the [robbery]
and acted with reckless indifference to human life, as described
in subdivision (d) of Section 190.2.” This provision requires
courts to “examine the defendant’s personal role in the crimes
leading to the victim’s death and weigh the defendant’s
individual responsibility for the loss of life, not just his or her
vicarious responsibility for the underlying crime.” (Banks, supra,
61 Cal.4th at p. 801.)
The Supreme Court in Banks and Clark identified several
nonexclusive factors to guide courts in determining when a
defendant’s culpability is sufficient to make him or her death
eligible under section 190.2, subdivision (d), even when the
defendant was not the actual killer. (See Clark, supra,
63 Cal.4th at pp. 618-622; Banks, supra, 61 Cal.4th at p. 803.)
Because these factors construe the language from section 190.2,
subdivision (d), which the Legislature incorporated into
section 189, subdivision (e), they apply when determining
whether a person convicted of felony murder is eligible for relief
under section 1170.95. (People v. Smith (2020) 49 Cal.App.5th
85, 93-94, review granted July 22, 2020, S262835; People v.
Torres (2020) 46 Cal.App.5th 1168, 1179, review granted June 24,
2020, S262011.)
In Banks the Supreme Court identified factors relevant to
determining whether a defendant was a major participant in the
underlying felony,7 but also described the requisite state of mind
7 Those factors are: “What role did the defendant have in
planning the criminal enterprise that led to one or more deaths?

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of showing 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.)
In Clark the Supreme Court further described the mental
state and kind of conduct necessary to show a reckless
indifference to human life for purposes of section 190.2,
subdivision (d). In general, a 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; see In re Scoggins
(2020) 9 Cal.5th 667, 676 (Scoggins).) Thus, the inquiry has a
subjective and an objective element. (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
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?” (Banks, supra,
61 Cal.4th at p. 803, fn. omitted.)

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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.” (Scoggins, at p. 677.)
The case-specific factors the Supreme Court identified in
Clark to determine whether a defendant’s state of mind and
conduct meet the standard for reckless indifference to human life
include: (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.) “‘[N]o
one of these considerations is necessary, nor is any one of them
necessarily sufficient.’” (Clark, at p. 618.) We analyze the
totality of the circumstances to determine whether Witherspoon

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acted with reckless indifference to human life. (See Scoggins, at
p. 677.)
The Clark factors for determining reckless indifference to
human life significantly overlap with the Banks factors for
determining whether a defendant was the major participant in
an underlying felony. (People v. Murillo (2020)
54 Cal.App.5th 160, 171 [“Because the issue of reckless
indifference to human life overlaps significantly with major
participation in the underlying felony, the relevant factors are
similar to those stated in Banks.”], petn. for review pending,
petn. filed Oct. 13, 2020, S264978.) Indeed, “‘the greater the
defendant’s participation in the felony murder, the more likely
that he acted with reckless indifference to human life.’” (Clark,
supra, 63 Cal.4th at p. 615.)
2. The Clark Factors Show Witherspoon Acted
with Reckless Indifference to Human Life
The superior court applied the Clark factors, compared the
facts of this case to those in Banks and Clark, and concluded
Witherspoon acted with reckless indifference to human life.
Substantial evidence supports that finding.
First, Witherspoon knew there were guns at the scene of
the shooting because, as evidenced by his statements to Durham,
he had two guns in his car: a semi-automatic rifle and a gun
small enough to fit under the seat of his car. This factor weighs
in favor of finding Witherspoon acted with a reckless indifference
to human life. (See Clark, supra, 63 Cal.4th at p. 618 [that
accomplices bring weapons to the scene of the crime weighs in
favor of finding they acted with reckless indifference to life].)

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Second, there was substantial evidence Witherspoon was
present at the scene of Rucker’s murder, which Witherspoon all
but concedes in his brief on appeal by stating he “was likely at
the shooting scene.” The evidence, and reasonable inferences
from that evidence, showed that Rucker had plans to meet with
Witherspoon around the same time as the shooting to
consummate their drug deal, that Durham saw Witherspoon in
his Nissan shortly before the shooting, that Witherspoon’s car
sustained damage from a bullet, that the location of the shooting
was near a house where Witherspoon once lived, and that
Witherspoon told Rucker’s father the location of the shooting
before police arrested and questioned Witherspoon. (See People
v. Brooks (2017) 3 Cal.5th 1, 57 [“‘Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn
from that evidence.’”].)
Taken together, this evidence shows Witherspoon was at
the scene of the murder. Moreover, Witherspoon was physically
present “during the entire sequence of events culminating in the
murder[ ]” (Clark, supra, 63 Cal.4th at p. 619), from his first
introduction to Rucker when he told Rucker he had 15 kilograms
of cocaine, to the collection of money for the cocaine Witherspoon
supposedly had, to Rucker’s death. (See ibid. [“[p]roximity to the
murder and the events leading up to it may be particularly
significant”].)
Also relevant to the second factor is whether the defendant
acted “as a restraining influence on murderous cohorts.” (Clark,
supra, 63 Cal.4th at p. 619.) “‘If the defendant fails to act as a
restraining influence, then the defendant is arguably more at
fault for the resulting murders.’” (Ibid.) To the extent someone
else shot Rucker, as Witherspoon speculates (without offering

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any evidence that anyone else was present), Witherspoon made
no effort to help Rucker by calling the 911 emergency operator or
providing first aid or comfort. (See ibid. [defendants showed a
reckless indifference to human life by failing to make “‘an effort
to help the victims’”].) Witherspoon argues that, because the
bullets killed Rucker, Witherspoon could not have given him any
aid. But the testimony at trial showed (and the argument by
counsel for Witherspoon conceded) Rucker was still alive when
the paramedics arrived. That the petitioner was physically
present at the scene and did not make an attempt to prevent the
shootings or assist the victim is “particularly significant” to the
reckless indifference inquiry. (In re Loza (2017) 10 Cal.App.5th
38, 53-54; see People v. Murillo, supra, 54 Cal.App.5th at p. 172
[“In Banks and Clark, and in other cases in which a court has
overturned a special circumstance finding, the defendant either
was not present at the scene of the killing, or at least was not
capable of preventing his cohort from acting.”].)
Third, “[t]he duration of the interaction between victims
and perpetrators is . . . one consideration in assessing whether a
defendant was recklessly indifferent to human life.” (Clark,
supra, 63 Cal.4th at p. 620.) For example, “[w]here a victim is
held at gunpoint, kidnapped, or otherwise restrained in the
presence of perpetrators for prolonged periods, ‘there is a greater
window of opportunity for violence’ [citation] possibly
culminating in murder.” (Ibid.) This factor is neutral because
the duration of time that Witherspoon spent with Rucker was not
significant, although the evidence showed Witherspoon spent
some time with Rucker before the shooting.
The fourth factor, the defendant’s knowledge that his
cohort was likely to kill, is also neutral because there is no

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evidence anyone other than Witherspoon was present at Rucker’s
shooting. There was, however, substantial evidence to support
the jury’s verdict of deliberate, premeditated murder, which
suggests Witherspoon was not only likely to kill, but had the
intent to kill. (See Witherspoon I, supra, B061260 [finding
substantial evidence to support a jury verdict of deliberate,
premeditated murder].)
Finally, whether the defendant made efforts to minimize
the risk of violence during the felony is relevant, as is whether
the defendant 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.) There is no evidence Witherspoon
did anything to minimize the risk of violence in his interaction
with Rucker. Indeed, he brought two guns with him to a meeting
at which Witherspoon apparently planned to tell Rucker he was
not delivering any drugs to him but was going to keep Rucker’s
money.
Witherspoon argues that there is no evidence he planned to
“harm or kill anyone” and that “the taking [of Rucker’s money]
was done non-violently.” But as the superior court found,
Rucker’s shooting “was the culmination of a week-long scam.”
While Rucker initially may have parted with his money “non-
violently,” he did so only because he thought he was getting 15
kilograms of cocaine in return. Witherspoon could have taken
the money and left town or otherwise disappeared without having
killed (or arranged to kill) Rucker. Instead, Witherspoon met
with Rucker once more under the pretense of delivering the
cocaine, drove him to a dark street in a neighborhood where
Witherspoon used to live and that was close to a freeway, and
shot (or, less likely, had someone else shoot) Rucker. The use of a

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gun was not merely to create fear as in a “‘garden-variety armed
robbery’” (Clark, supra, 63 Cal.4th at p. 617, fn. 74); Witherspoon
already had the money. Witherspoon used the gun to make sure
he could keep the money. Contrary to Witherspoon’s speculation
that shooting Rucker must have been a “spontaneous reaction”
(by someone), the evidence showed the only reason Witherspoon
met Rucker that night was to kill him.
Thus, the totality of the circumstances surrounding the
robbery murder, “the magnitude of the objective risk of lethal
violence,” and Witherspoon’s “subjective awareness of that risk”
showed that Witherspoon acted with a reckless indifference to
human life. (Clark, supra, 63 Cal.4th at p. 623.) Witherspoon
appeared willing to kill (or to assist another in killing) Rucker to
achieve a distinct aim: to keep hundreds of thousands of dollars
Witherspoon took from Rucker in a sham drug deal. (See id. at
p. 617.)
DISPOSITION
The order is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.

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