P. v. Ross

Filed 3/2/21 P. v. Ross CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
KEITH ROSS,
Defendant and Appellant.
B304808
(Los Angeles County
Super. Ct. No. SA120316)
APPEAL from an order of the Superior Court of Los
Angeles County, Upinder S. Kalra, Judge. Affirmed.
Victoria H. Stafford, 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, Assistant
Attorney General, David E. Made and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________

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Keith Ross challenges the trial court’s denial of his petition
for resentencing under Penal Code section 1170.95.1 To be
eligible for relief under the statute, a defendant must make a
prima facie case that he was convicted of murder under the
natural and probable consequences doctrine, or of felony murder
in a case in which he either was not a major participant in the
felony or did not act with reckless indifference to human life.
(See People v. Allison (2020) 55 Cal.App.5th 449, 460-462, review
denied Dec. 23, 2020, S265450 (Allison); People v. Galvan (2020)
52 Cal.App.5th 1134, 1139-1140, review granted Oct. 14, 2020,
S264284 (Galvan).)
Ross contends the trial court erred in denying his petition
because he established a prima facie case for relief by alleging he
was not the actual killer and was prosecuted as an aider and
abettor to felony murder. He also contends he is entitled to relief
because the facts of the crime do not satisfy the standards
announced in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark).
We disagree and conclude that Ross is ineligible for
resentencing under section 1170.95 as a matter of law for two
reasons. First, following a retrial on a special circumstance
allegation, a jury found true the allegation that the murder was
committed during a robbery under section 190.2, subdivision
(a)(17), which required proof of the same elements that all felony
murder charges must meet under current law. Second, on review
of the trial court’s application of the Banks and Clark factors in
considering Ross’s petition under section 1170.95, we conclude
the record of conviction establishes as a matter of law that the
1 Subsequent statutory references are to the Penal Code.

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special circumstance finding is valid even under Banks and
Clark.
FACTUAL AND PROCEDURAL SUMMARY
A. Evidence Presented at First Trial
In an unpublished opinion involving Ross’s direct appeal
(People v. Norwood et al. (Apr. 9, 1997, B091925) (Ross I)), we
described the facts of the case as follows.
“On September 14, 1992, Ross entered Mills Jewelers in
Ventura. Sherman Kulick owned Mills Jewelers and several
other jewelry stores. Kulick’s headquarters and wholesale buying
office was in Culver City. Ross spoke with employee Barbara
Simpson for about 20 minutes. Employee Vickie Ward watched
and overheard their conversation. Ross posed as a diamond
dealer and asked where the main office was and if purchases
were made there. Simpson and Ward did not believe Ross was a
diamond dealer because he was shabbily dressed, was unfamiliar
with common industry terms, and had no business card. They
told Ross the store’s headquarters was listed in a trade industry
publication with which Ross was unfamiliar. Simpson told other
workers to remember Ross because he was unusual. Ward
followed Ross outside and saw him drive away.
“The next day, September 15, 1992, Murray Brown, a
convicted drug dealer and longtime user, bought a used Cadillac
from an auto dealership located at 5500 South Figueroa Street in
Los Angeles. That evening, [codefendant Gregory] Norwood and
Ross, who knew Brown, came to Brown’s house. The three men
drove together in Brown’s newly-purchased Cadillac to buy
cocaine. They returned to Brown’s house and smoked the cocaine
with two women friends. During the ensuing conversation,
Norwood and Ross asked Brown if they could use the Cadillac as

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a getaway car for a ‘job’ involving Rolex watches. Defendants
told Brown they would use the Cadillac only as a getaway car and
would use another car to arrive. Ross said they already had
‘cased’ the jewelry mall where the Rolex watches were sold.
Brown thought the ‘job’ would be in Culver City. Ross had a
shotgun and an ‘Uzi’ into which defendants practiced loading and
unloading ammunition clips. Defendants told Brown they would
have to use a uniform to enter the store, which had bars and
could not otherwise be entered without force, which they did not
want to use for entry. Ross told Norwood to wear mail carrier’s
pants that Ross could acquire, although the legs would have to be
cut off. Brown agreed to let defendants use the car in exchange
for some of the loot from the ‘job.’ Defendants instructed Brown
to report the Cadillac stolen if anything went wrong.
“The next day, September 16, 1992, secretary/bookkeeper
Dolores Medina and Kulick were working at Kulick’s main office
at 8827 Exposition Boulevard in Culver City. The business was
entered through double doors, the second of which was locked and
controlled by an interior buzzer. No one could enter without
being buzzed in from inside. Shortly after lunch, Medina heard
the door buzzer go off. Medina looked up and saw Norwood,
dressed as a mail carrier, enter the office. Norwood was wearing
postal service shorts and cap, and carried a large canvas bag and
a gun. Ross, wearing a sleeveless T-shirt, red shorts, and
sneakers, and sporting a large, curly, ‘very crazy hairdo,’ entered
behind Norwood.
“As Norwood entered, he said ‘ “okay, Sherman, give us
everything you have.” ’ Medina said she had nothing, and Kulick
told the men he had pressed the alarm button and they should
leave. Ross, who had begun opening file cabinets, ordered

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Medina to show him where the alarm button was. Medina
replied that she did not know. Ross tried to take Kulick’s watch,
but Kulick resisted. As Ross and Kulick struggled, Norwood said
‘ “this is serious” ’ and shot Kulick once. Ross abandoned his
attempt to take Kulick’s watch and walked into the rear of the
office. Ross took Kulick’s briefcase and walked toward the door.
Kulick again told the men to leave. As Ross approached the door,
Norwood shot Kulick twice more and backed out the door.
Medina saw the two men run down the street. She called
emergency. Kulick died from his wounds.” (Ross I, supra,
B091925, pp. 3-5, fn. omitted.)
In relevant part, the opinion also found that “ ‘Wilma
Foster, previously known as Wilma Ross, lived with Ross from
1986 through mid-1992. . . . Foster was a postal carrier. Foster
told police that sometime after the couple’s breakup, Foster
discovered one of her mailbags and postal service caps were
missing, and only Ross had access to them.’ ” (Ross I, supra,
B091925, p. 6.)
Following a jury trial in 1994, Ross and codefendant
Norwood were convicted of first degree murder (§§ 187, 189), and
second degree robbery (§§ 211, 212.5). The jury found true the
special circumstance allegation that the murder was committed
during a robbery. (§ 190.2, subd. (a)(17)(A).) As to Ross, the jury
found that a principal was armed with a firearm as to both
counts. (§ 12022, subd. (a).)
On direct appeal in 1997, we reversed the felony murder
special circumstance finding against Ross because the jury
received an incomplete instruction on the elements required
under section 190.2. We remanded the case for retrial of the
special circumstance allegation.

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B. Evidence Presented on Retrial of Special
Circumstance Allegation
On retrial in 1998, the jury found true the allegation that
the murder was committed during a robbery under section 190.2,
subdivision (a)(17). Following the retrial, Ross was sentenced to
serve a total of life without parole plus nine years in state prison.
Ross appealed, and we affirmed the jury’s special
circumstance finding in an unpublished opinion, finding the
evidence was sufficient to support the verdict. (People v. Ross
(Feb. 17, 2000, B121714) (Ross II).) In that opinion, we noted
that at the retrial, the prosecution presented essentially the same
evidence as at the first trial, and we adopted the factual
summary set forth in Ross I, as supplemented by the following
facts presented at the retrial.
“At the second trial, Medina said Norwood fired twice, with
multiple shots being fired during each of the two bursts.
However, she only stated that Kulick was hit during the second
burst. Norwood’s gun was a nine millimeter semi-automatic
pistol modified to be fully automatic. At least eight shots were
fired. Kulick was hit several times in the groin. Kulick’s femoral
arteries and veins were pierced and he slowly bled to death.
Based on this evidence, the People ask us to infer, consistent with
the first trial evidence, that Kulick was hit once during the first
burst. However, there is no evidence to support such an
inference from the retrial record.” (Ross II, supra, B121714, at
p. 5, fn. 4.)
“Although at the first trial neither defendant presented a
defense, Ross testified at the retrial, presenting a false
identification-complete innocence defense. Ross denied any
participation in the planning or completion of the robbery. Ross

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denied ever being in Kulick’s Ventura store. Ross likewise denied
being present during the Culver City robbery and murder.” (Ross
II, supra, B121714, at pp. 7-8.)
C. Petition for Resentencing
On January 7, 2019, Ross filed a petition for resentencing
under section 1170.95. The trial court appointed counsel and
ordered briefing by the prosecution and defense counsel. The
trial court issued a detailed written ruling applying the factors
set forth in Banks and Clark. The court determined Ross was an
active participant in the robbery and murder of Kulick and
denied the petition.
Ross timely appealed.
DISCUSSION
A. Senate Bill No. 1437 and Section 1170.95
In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.), which eliminated the natural and
probable consequences doctrine in cases of murder, and limited
the application of the felony-murder doctrine. (People v. Verdugo
(2020) 44 Cal.App.5th 320, 323, review granted Mar. 18, 2020,
S260493 (Verdugo).) The legislation also enacted section 1170.95,
which provides a vehicle for persons who were convicted of
murder pursuant to a now-invalidated theory to petition to have
their conviction vacated and to be resentenced. (Ibid.; see
§ 1170.95, subd. (a).)
A person convicted of felony murder may petition the trial
court for resentencing “when all of the following conditions apply:
[¶] (1) A complaint, information, or indictment was filed against
the petitioner that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and

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probable consequences doctrine. [¶] (2) The petitioner was
convicted of first degree or second degree murder following a trial
or accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder. [¶]
(3) 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.” (§ 1170.95, subd. (a), italics added.)
To obtain relief, a defendant must file a declaration
affirming that he is eligible for resentencing under the new law.
(See § 1170.95, subd. (b)(1).) The trial court considers the
petition according to a three-step process. First, the court
“review[s] the petition and determine[s] if the petitioner has
made a prima facie showing that the petitioner falls within the
provisions of this section.” (§ 1170.95, subd. (c).) This is “a
preliminary review of statutory eligibility for resentencing,” akin
to an initial review of a petition for resentencing under
Propositions 36 and 47. (Verdugo, supra, 44 Cal.App.5th at
p. 329.) “The court’s role at this stage is simply to decide whether
the petitioner is ineligible for relief as a matter of law, making all
factual inferences in favor of the petitioner.” (Ibid.)
If the petition survives this first stage of review, the court
must appoint counsel if the petitioner has so requested.
(§ 1170.95, subd. (c).) The prosecutor then files a response, and
the petitioner may file a reply. The review at this stage “is
equivalent to the familiar decisionmaking process before issuance
of an order to show cause in habeas corpus proceedings, which
typically follows an informal response to the habeas corpus
petition by the Attorney General and a reply to the informal
response by the petitioner.” (Verdugo, supra, 44 Cal.App.5th at
p. 328.) Under this standard, “[i]f the petitioner makes a prima

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facie showing that he or she is entitled to relief, the court shall
issue an order to show cause” and conduct an evidentiary
hearing. (§ 1170.95, subds. (c) and (d).)
B. The Special Circumstance Finding Renders Ross
Ineligible for Resentencing Under Section 1170.95
Senate Bill No. 1437 amended section 189 to authorize a
conviction for felony murder only if the defendant was the actual
killer, aided and abetted in a first degree murder with the intent
to kill, or was a major participant in the underlying crime who
acted with reckless indifference to human life. (Verdugo, supra,
55 Cal.App.4th at p. 326; see § 189, subd. (e).) “These are
identical to the requirements of a felony-murder special
circumstance now” and in 1992 at the time of Ross’s offense, as
reflected in the instructions received by the jury in his retrial in
1998. (Allison, supra, 55 Cal.App.5th at p. 457.) Thus, as in
Allison, the special circumstance finding shows as a matter of law
that Ross still could be convicted of felony murder even under the
newly amended version of section 189, and prevents Ross from
making a prima facie case that he is eligible for resentencing.
(Ibid.)
Ross argues that he is eligible for resentencing due to
changes in the law regarding special circumstance allegations. In
2015 and 2016, the California Supreme Court clarified the
circumstances under which a defendant could be deemed a major
participant in an underlying felony who acted with reckless
indifference to human life. (Clark, supra, 63 Cal.4th 522; Banks,
supra, 61 Cal.4th 788.) Relying upon People v. Smith (2020) 49
Cal.App.5th 85, review granted July 22, 2020, S262835, and
People v. Torres (2020) 46 Cal.App.5th 1168, review granted
June 24, 2020, S262011, Ross contends that special circumstance

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findings which predate Banks and Clark are eligible for
resentencing relief under section 1170.95.
We rejected this argument in Galvan and Allison, and
decline to revisit those decisions here. The argument that pre-
Banks/Clark special circumstance findings are not sufficient to
preclude resentencing under section 1170.95 fails because it does
not depend on Senate Bill No. 1437’s changes to the felony-
murder rule. Rather, as we concluded in Galvan and Allison, it
depends on “the clarification of the requirements for the special
circumstance finding in Banks and Clark,” and not “ ‘because of
changes’ made by Senate Bill No. 1437.” (Galvan, supra, 52
Cal.App.5th at p. 1142; see § 1170.95, subd. (a)(3); accord,
Allison, supra, 55 Cal.App.5th at p. 458.)
Where, as here, “the prior [special circumstance] finding
shows the petitioner meets the requirements for murder liability
under amended sections 188 and 189, then it is not true that the
petitioner could not be convicted of murder because of the
changes to sections 188 and 189, and the petition must be
denied.” (Allison, supra, 55 Cal.App.5th at pp. 461-462, italics
omitted.)
C. Even if We Apply Banks and Clark Ross is Ineligible
for Resentencing
In Galvan and Allison, we posited that a defendant who
was sentenced under section 190.2 prior to the issuance of Banks
and Clark could challenge the continuing validity of the special
circumstance finding by filing a habeas corpus petition. (Allison,
supra, 55 Cal.App.5th at p. 459, fn. 9; Galvan, supra, 52
Cal.App.5th at p. 1142.) In Ross’s case, however, the trial court
already has applied Banks and Clark to evaluate his eligibility

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for relief under section 1170.95, and the parties have briefed the
application of the cases in this appeal.
In People v. Murillo (2020) 54 Cal.App.5th 160, 169, review
granted Nov. 18, 2020, S264978 (Murillo), we applied Galvan to
deny a petition for resentencing where the jury found a special
circumstance allegation to be true, but we also affirmed the trial
court’s denial of relief on the independent ground that the
petition failed as a matter of law even under the standards
announced in Banks and Clark. Given the trial court’s extensive
written analysis of Banks and Clark, as well as the briefing by
both parties, we adopt the approach followed in Murillo, and
proceed to consider the application of Banks and Clark. As
explained, we conclude that Banks and Clark do not alter the
outcome of Ross’s appeal.2
As explained in Murillo, our Supreme Court had occasion
to clarify the legal standard to be applied under section 190.2
2 In fact, the result here would be the same if the claim was
asserted in a petition for habeas relief, because, as we explain,
the undisputed material facts show that Ross was a major
participant in the murder who acted with reckless indifference to
human life. (See In re Scoggins (2020) 9 Cal.5th 667, 676 [to be
entitled to habeas relief, a defendant must show “ ‘ “there is no
material dispute as to the facts relating to his conviction and . . .
it appears that the statute under which he was convicted did not
prohibit his conduct” ’ ”]; see also People v. Drayton (2020) 47
Cal.App.5th 965, 980 [“with respect to the trial court’s
assessment of whether the petitioner has made a prima facie
showing of entitlement to relief under [§] 1170.95[, subd.] (c), we
conclude habeas corpus procedures are sufficiently similar to
provide a reasonable construction of the meaning of the relevant
language in [subd.] (c)”].)

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based on existing federal jurisprudence relative to felony murder
culpability. (Murillo, supra, 54 Cal.App.5th at p. 169.) In Banks,
the court “set out a series of considerations relevant to
determining whether a particular defendant was a major
participant in the underlying felony. These factors are as follows:
‘What role did the defendant have in planning the criminal
enterprise that led to one or more deaths? What role did the
defendant have in supplying or using lethal weapons? What
awareness did the defendant have of particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at
the scene of the killing, in a position to facilitate or prevent the
actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after
lethal force was used?’ ” (Murillo, supra, at pp. 170-171, quoting
Banks, supra, 61 Cal.4th at p. 803.)
In Clark, the court identified factors for determining
whether a defendant acted with “reckless indifference to human
life,” as follows: “(1) The defendant’s knowledge of weapons, the
number of weapons used, and the defendant’s own 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 felony; (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.”
(Murillo, supra, 54 Cal.App.5th at p. 171, quoting Clark, supra,
63 Cal.4th at pp. 618-622.)
In Ross II, we rejected Ross’s sufficiency of the evidence
challenge to the jury’s special circumstance finding on retrial,

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summarizing the evidence of Ross’s participation in the robbery-
murder as follows:
“The evidence shows Ross masterminded the robbery,
visiting Kulick’s Ventura store to acquire information about the
Culver City headquarters, thought of dressing Norwood as a
postal worker to gain admittance; stole his ex-common-law wife’s
postal uniform to provide Norwood’s disguise; supplied the fully-
automatic (and thus far more lethal than usual) firearm that
killed the victim; showed Norwood how to load the gun; and
continued to look for additional loot after Norwood began
spraying the business with gunfire, killing Kulick. This evidence
demonstrates Ross was a major participant in robbing Kulick and
acted with reckless indifference to human life.” (Ross II, supra,
B121714, at p. 11.)
Our prior assessment of the facts shows that even applying
the Banks and Clark factors, Ross played a central role in
planning the robbery; he was aware a firearm would be used to
carry out the crime; he was present at the scene facilitating the
actions of Norwood, opening file cabinets and ordering Medina to
divulge the location of the alarm button; and he engaged in a
physical struggle with Kulick while attempting to take his watch.
Ross continued to participate in the robbery by taking Kulick’s
briefcase even after Norwood fired the first shot.
Ross challenges our conclusion in Ross II that he supplied
the firearm that killed Kulick.3 Even if Ross did not supply the
3 As discussed above, in Ross I, we stated that “Ross had a
shotgun and an ‘Uzi,’ ” which the defendants practiced loading
and unloading, whereas in Ross II, we stated that Norwood fired
“a nine millimeter semi-automatic pistol modified to be fully
automatic.”

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firearm, this does not undermine the facts showing that Ross was
aware that a firearm would be used in the robbery, based on his
preparations prior to the robbery, and Norwood’s display of a gun
on entering the office in a manner that was visible to Medina.
These facts are sufficient to show Ross acted as a “major
participant” as outlined in Banks. Similarly, the facts show that
he acted with reckless indifference to human life as required by
Clark, based on his knowledge that a firearm would be used, and
his physical struggle with Kulick, which elevated the risk that
Norwood could fire his weapon at any time.
Ross argues that by examining the prior appellate opinions,
the trial court engaged in unauthorized factfinding in
determining whether he had made a prima facie case for section
1170.95 relief. This argument lacks merit. For purposes of
review at the prima facie stage under section 1170.95, the trial
court may review the “record of conviction,” which includes the
appellate decision on direct appeal. (Verdugo, supra, 44
Cal.App.5th at pp. 329-330, 331-333; People v. Lewis (2020) 43
Cal.App.5th 1128, 1138, review granted Mar. 18, 2020, S260598.)
Ross’s contention that the trial court considered only Ross I
in reaching its decision also is without merit. The record shows it
was the trial court that initially alerted the parties to the second
opinion in Ross II, and the court’s written ruling denying Ross’s
section 1170.95 petition explicitly refers to both Ross I and
Ross II.
Ross further argues that the trial court’s analysis of the
underlying facts failed to account for the “new relevant evidence”
presented at the retrial. He maintains “that after Norwood
start[ed] shooting, [Ross] turned to leave. Thus [Ross] did not
exhibit ‘reckless indifference,’ but tried to avoid a grave risk of

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death by leaving before Norwood killed anyone.” The facts
presented at the retrial do not support this argument.
It is true that in Ross II, we concluded the evidence did not
support an inference that Kulick was hit by the first burst of
gunfire. However, there was no evidence presented during the
retrial to undermine the finding in Ross I that “[a]s Ross and
Kulick struggled,” Norwood fired his weapon once. Then “Ross
abandoned his attempt to take Kulick’s watch and walked into
the rear of the office,” taking Kulick’s briefcase before exiting the
office. Ross claims that after the first shot, his “next act was to
head to the door to leave and to abandon the robbery,” but he
points to no facts to support this conclusion. Certainly he did not
present any such facts during his retrial testimony since he
denied any participation in the robbery.
Moreover, whether Kulick was hit by gunfire by the first
shot or by the subsequent shots fired as Norwood exited the
office, Ross demonstrated reckless indifference to human life by
entering the office with a cohort who he knew to be armed,
engaging in a physical struggle with the victim while attempting
to remove the victim’s watch, and continuing his efforts to secure
items of value by purloining Kulick’s briefcase before leaving.
The mere fact of exiting after Norwood fired the first shot does
not equate to an “effort[ ] to minimize the risk of violence.”
(Clark, supra, 63 Cal.4th at p. 622). To the contrary, a more
likely inference to be drawn from Ross’s departure is that he saw
his plan crumbling and decided to flee to avoid being caught.
Indeed, Ross sought to capitalize on his escape by testifying at
the retrial that he was never at the scene.
In sum, as we found in Murillo, even if we assume that a
petition under section 1170.95 can be used to challenge a felony

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murder special circumstance finding, the record of conviction
“establishes as a matter of law that [Ross] was a major
participant who acted with reckless indifference to human life, as
those terms were clarified in Banks and Clark, and [Ross] does
not claim to have any new evidence on this issue. Therefore,
even if his claim was cognizable under section 1170.95, he was
not eligible for relief under that statute.” (Murillo, supra, 54
Cal.App.5th at p. 173.)
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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