Opinion
E081336
08-13-2024
THE PEOPLE, Plaintiff and Respondent, v. TROY DANTE FAVA, Defendant and Appellant.
Richard Schwartberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FVI800549 Debra Harris, Judge. Affirmed.
Richard Schwartberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER Acting P. J.
In 2011, defendant and appellant Troy Dante Fava was convicted of felony murder, grand theft, and robbery for his role in the armed robbery of a drug dealer, during which one of Fava's confederates shot and killed a man who happened to be at the dealer's home but was not the intended victim of the robbery. Since then, the Legislature narrowed the scope of felony murder for a defendant who is not the actual killer and did not have the intent to kill, to now require the defendant to have been a major participant in the underlying offense who acted with reckless disregard for human life. (Pen. Code, § 189, subd. (e)(3), added by Sen. Bill No. 1437 (2017-2018 Reg. Sess.); Stats. 2018, ch. 1015, § 3.)
In this appeal, Fava challenges the denial of his petition for resentencing under Penal Code former section 1170.95. Because we conclude the record contains substantial evidence to support the trial court's findings that Fava was a major participant in the robbery and that he acted in reckless disregard for human life, we affirm the denial.
All undesignated statutory references are to the Penal Code. Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
I. FACTS
A jury found Fava guilty of the murder of Adam Atencio (§ 187, subd. (a)) on the sole theory of felony murder, of grand theft (§ 487, subd. (a)), and of burglary (§ 459). The jury also found true the allegation that Fava was armed with a firearm during the commission of each count. (§ 12022, subd. (a)(1).) In a bifurcated trial, the trial court found that Fava had two prison priors. (§ 667.5, subd. (b).) The trial court sentenced Fava to state prison for 35 years to life.
We take our summary of facts from this court's nonpublished decision in Fava's direct appeal. (People v. Fava (May 8, 2013, E055407).) At trial, the evidence showed that Adam Atencio was shot and killed on March 7, 2008, at the apartment of Lucas Buckingham in Hesperia, after Fava and several of his cohorts burglarized the apartment and beat up Buckingham. Buckingham's Glock handgun was stolen from the apartment. It was unclear at trial whether Fava or one of his cohorts shot and killed Atencio with a second handgun, a Sig Sauer. Buckingham had two encounters with Fava before the shooting of Atencio.
At the evidentiary hearing on a petition for resentencing under section 1172.6, the trial court "may . . . consider the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3).) "[T]he Legislature has decided trial judges should not rely on the factual summaries contained in prior appellate decisions when a [former] section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing." (People v. Clements (2022) 75 Cal.App.5th 276, 292 (Clements).) When it conducted the hearing on Fava's petition, the trial court considered the transcripts from his trial lodged by the district attorney. No other "new or additional evidence" was admitted. (§ 1172.6, subd. (d)(3).) We rely on the factual statement from our decision in the original appeal merely to provide context for the trial court's ruling and the parties' appellate arguments and do not rely on the factual statement to resolve the issues presented in this appeal.
A. Events Preceding the March 7, 2008, Shooting.
Buckingham testified he first met Fava at a friend's house several months before the shooting, when Buckingham was a marijuana and cocaine dealer. One morning in February 2008, Fava showed up at Buckingham's apartment and woke Buckingham up by pounding on the door. Buckingham answered, and Fava asked whether he was Buckingham. Buckingham responded by asking, "What's it to you?" Fava and Peter Lewis then forced their way into the apartment. Once inside, Fava proceeded to kick, punch, and beat Buckingham. While Fava was beating up Buckingham, Lewis picked up Buckingham's shotgun. Lewis pointed the gun at Buckingham, but Fava told him to stop. Knowing he was a dealer, Fava and Lewis asked Buckingham where he kept his stash, cell phones, money, and guns. Buckingham denied having anything. After rummaging around the apartment, Fava and Lewis found Buckingham's marijuana. Fava then beat Buckingham more severely for lying to him. After the beating, Buckingham's shirt was soaked in blood.
Fava and Lewis left the apartment with two baggies of marijuana, the shotgun, a video camera, and some cell phones. Before leaving, Fava told Buckingham that if he called the police, every skinhead in Southern California would be at Buckingham's door to rape him. Buckingham believed that Fava attacked him because of a disagreement Buckingham had with Fava's girlfriend's mother.
Buckingham did not report the attack, but reported to police that his shotgun was taken in a burglary while he was not home. He testified that he reported the gun was stolen because it was registered in his name and he was worried what Fava and Lewis would do with the gun. Officer Arnold Mathias took the report on February 25, 2008. Along with the missing shotgun, Buckingham reported that a diamond ring and $170 in cash were taken. After his shotgun was taken, Buckingham illegally obtained a .40-caliber Glock handgun.
Buckingham further testified that sometime after the February 2008 incident but before the March 7, 2008, shooting, he was sitting in his car in his apartment complex when an SUV pulled up behind him and blocked him in. Fava got out of the SUV, walked up to Buckingham's car, knocked on the window in a hostile fashion, and told Buckingham they needed to talk. Buckingham opened his window slightly, pointed his Glock at Fava, and Fava backed away. Buckingham then backed his car into the SUV, forced his way out of his parking space, and quickly drove off. According to Buckingham, Fava got back into the SUV and the SUV tried to follow Buckingham, but the SUV lost sight of Buckingham after four or five minutes.
B. The March 7, 2008, Shooting.
On the night of March 6, 2008, Buckingham was in his apartment with two of his friends, Atencio and Atencio's brother Andrew. They drank beer and tequila, smoked marijuana, and took Valium and Norco. Buckingham showed Atencio how to use the Glock handgun.
Buckingham recalled that Atencio was still awake and at the apartment when Buckingham went to sleep between 3:00 and 5:00 a.m. on March 7, 2008. Buckingham could not recall whether the Glock was in the kitchen or under his pillow when he went to sleep.
Atencio's brother Andrew awoke and left the apartment at 7:00 a.m. on March 7, 2008, before the shooting occurred. Andrew recalled there was a gun on the coffee table that Atencio had handled.
Later on the morning of March 7, 2008, Buckingham awoke to Fava sitting on top of him, beating him up. Fava hit Buckingham in the face 10 to 20 times. While Fava was beating Buckingham, Lewis was in the room with a gun and a third person was blocking the bedroom door, possibly holding a gun as well. Fava and Lewis then dragged Buckingham off the bed to the floor, where Fava proceeded to kick him.
Lewis then demanded to know where Buckingham kept his "stash." Fava said, "That's not what we're here to do. Do what we came here to do," and Lewis then crouched down and began choking Buckingham. Buckingham could not breathe, became dizzy, his vision became fuzzy, and he felt like he was going to die. He did not suffer any lasting injuries from the assault, however.
As Lewis was choking him, Buckingham heard a loud thud coming from the living room. Buckingham did not know anyone else was in the apartment. Lewis got off Buckingham, and Lewis, Fava, and the other man ran from the bedroom. Buckingham got up, but still had fuzzy vision. When he got to the bedroom door, he could see Lewis firing his handgun towards the front door.
Buckingham estimated that Lewis fired at least six to seven shots, but he heard a total of 10 to 15 shots. Once the shooting ended, Fava yelled, "We gotta go now," and Fava, Lewis, and the other man ran off. Buckingham then went through the living room and out the front door. Outside, he found Atencio on the ground, in a planter. Atencio was gasping for breath and bleeding from his chest. Buckingham called 911, but Atencio died before help could arrive. Buckingham did not see his Glock handgun anywhere.
C. Charles Carr's Testimony.
Charles Carr was arrested on March 8, 2008, and he and Fava were initially charged with the same crimes. Carr pleaded guilty to being an accessory to the crimes (§ 32), and was facing a sentence of up to four years in prison when he testified for the prosecution at Fava's trial.
Around two days before the March 7, 2008, shooting at Buckingham's apartment, Carr, Christopher Rivera, Fava, and Lewis were in the SUV, blocking Buckingham's car from leaving the apartment complex. Rivera was driving the SUV, which belonged to Rivera's mother, and Fava was in the front passenger seat. The foursome arrived at Buckingham's apartment complex in the SUV as Buckingham was leaving. Fava got out of the SUV and ran to the driver's side of Buckingham's car. Rivera then backed the SUV behind Buckingham's car, blocking Buckingham in.
Carr saw a gun pointed out of the window of Buckingham's car, and Fava put his hands in the air and froze. Buckingham then backed into the SUV, sped off, and Fava jumped back into the SUV. Rivera was upset that the SUV was damaged, and Fava was saying, we're "gonna . . . kick his ass." They followed Buckingham but lost him, and returned to Fava's home.
On the day of the shooting, Carr, Rivera, Lewis, Fava, and Fava's girlfriend were at Fava's house. Eventually, Fava, his girlfriend, and Lewis left the house in Lewis's car, and Rivera followed in Rivera's car. They dropped Fava's girlfriend off at a McDonald's restaurant before proceeding to Buckingham's apartment.
When Carr arrived at the front door of the apartment, Fava, Rivera, and Lewis were already inside. From the front door, Carr could hear fighting coming from the bedroom. Carr saw a young man on the couch, asked the man what was going on, and the man stood up with a gun in his hand. After the young man cocked the gun, Carr ran from the apartment. As he ran, Carr heard more than 10 gunshots. Carr ran around the building and jumped over a fence.
While running down the street, Carr doubled back and saw Fava and the other men getting into their cars. Rivera told Carr to get into Rivera's car. Carr asked, "What happened, man?" Rivera said, "I don't even know what happened, I had to fire back" or "I had to shoot back." Rivera may have also said something like, "The kid wouldn't stop shooting, I had to shoot back." Rivera also said he did not aim his gun but simply pointed the gun around the corner.
Carr and Rivera drove to Carr's house. When they arrived, Rivera pulled out two guns and said: "I have to have someplace to put these." Carr offered a hiding spot at Carr's house, and Rivera put the guns there. Rivera then received a text message that Fava had been arrested and retrieved the guns from Carr's hiding place.
Carr and Rivera then drove to Rivera's mother's house where Rivera wiped the guns down with towels. Carr and Rivera then drove to the desert where Rivera hid the guns under a rock pile. Later on March 7, 2008, Rivera and Carr returned to Carr's house. That evening, the police came to Carr's house and arrested Rivera and Carr. Carr showed a detective where the guns were hidden in the desert.
D. Ballistics and Other Prosecution Evidence.
Atencio suffered two gunshot wounds to his right chest and one to his left chest. The left chest wound was fatal. It took Atencio several minutes to die, and he could have walked 15 to 20 feet before collapsing.
The guns the police recovered from the rock formation were Buckingham's Glock and a Sig Sauer nine-millimeter. The Sig Sauer was registered to Rivera's father. Criminalist William Matty testified that three bullet casings recovered from the apartment were fired by the Glock, and two were fired by the Sig Sauer.
All the bullet fragments removed from Atencio's body were consistent with the Sig Sauer. Other fragments were consistent with both guns, and some fragments were too damaged to identify. Criminalist Hazel Whitworth believed the Sig Sauer was fired from the doorway of the apartment toward the outside.
Fava's girlfriend, Stephanie Barling, was interviewed by police, and a tape of the interview was played for the jury. Barling said that before they left Fava's house on March 7, 2008, she overheard Fava tell Lewis, "don't worry, they're strapped," meaning that Carr and Rivera had guns. She was concerned and told Fava, "don't go being stupid, please." Fava told her not to worry. (Fava, supra, E055407)
II. PROCEDURAL BACKGROUND
In his direct appeal, we rejected Fava's claim the trial court erred by admitting un-Mirandized statements he made to the police and affirmed the judgment (Fava, supra, E055407), and the California Supreme Court denied his petition for review on July 23, 2013, S211386.
See Miranda v. Arizona (1966) 384 U.S. 436.
On March 18, 2019, Fava filed a petition in the superior court requesting the court vacate his sentence pursuant to former section 1170.95. Fava declared he had been convicted of first or second degree murder under the felony-murder rule or the natural and probable consequences doctrine but, as of January 1, 2019, he could no longer be convicted of murder because of the amendments made to sections 188 and 189. He requested the court appoint counsel for him. The district attorney moved to strike Fava's petition, arguing Senate Bill No. 1437 was unconstitutional. The trial court appointed counsel for Fava, who filed an opposition to the motion to strike, arguing Senate Bill No. 1437 is constitutional. After conducting a hearing on the petition, the trial court granted the motion to dismiss. Fava appealed, and, after concluding Senate Bill No. 1437 was constitutional, this court reversed the dismissal and remanded for the trial court to determine whether Fava was entitled to relief under former section 1170.95. (People v. Fava (June 18, 2020, E073691) [nonpub. opn.].)
On remand, the parties stipulated Fava had made a prima facie case for relief and that an evidentiary hearing should be conducted on the petition. The prosecutor and the trial court also agreed that because Fava was not the actual shooter, the issues to be decided at the hearing were whether Fava could still be convicted beyond a reasonable doubt of felony murder because he was a major participant who acted with reckless indifference to human life.
After hearing arguments from counsel, the trial court found Fava could still be convicted beyond a reasonable doubt of felony murder. The court indicated it took into consideration the fact a jury would be instructed to only draw reasonable inferences from circumstantial evidence and to reject unreasonable ones. (See CALCRIM No. 224.) The court drew attention to some facts that supported its conclusion: (1) when Fava told Lewis, "That's not what we are here to do," and Lewis began to choke Buckingham, the reasonable inference to be drawn was that Lewis understood they were not there to steal from Buckingham but to use violence and assault him; (2) Fava's previous assault on Buckingham that left his shirt soaked in blood, and Buckingham waking up with Fava on top of him and beating him, "shows the violent nature of everything that was going on"; (3) the assailants acted in concert but Fava "showed a leadership role by giving directions, and especially the fact that his directions were obeyed"; (4) although Fava was not in the living room, he was close by and "at least within yelling distance" when the confrontation and eventual shootout with Atencio occurred; and (5) Fava did not say "stop" or otherwise try to prevent the shooting, and instead he "saw events unfold and did nothing." Therefore, the trial court denied the petition.
Fava timely appealed.
III. DISCUSSION
Fava argues the record does not support the trial court's findings that he was a major participant who acted with reckless indifference for human life, such that he could still be convicted today beyond a reasonable doubt of the murder of Atencio. While conceding he participated in the planning and execution of the armed robbery and assault of Buckingham, he contends the fatal shooting of Atencio by one of Fava's cohorts was purely serendipitous. Applying the highly deferential standard of review, as we must, we conclude substantial evidence supports the trial court's findings.
A. Substantial Evidence Supports The Trial Court's Findings That Fava Was A Major Participant in the Robbery Who Acted with Reckless Disregard for Human Life.
1. Applicable law and standard of review.
Effective January 1, 2019, Senate Bill No. 1437 (Stats. 2018, ch. 1015, §§ 2-3) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and narrowed the felony-murder exception to the malice requirement for murder. (§§ 188, subd. (a)(3), 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 957; see People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong); People v. Gentile (2020) 10 Cal.5th 830, 842-843.) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual's participation in a crime and requires proof of malice for a murder conviction, except under the revised felony-murder rule in section 189, subdivision (e).
"Senate Bill [No.] 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended." (Strong, supra, 13 Cal.5th at p. 708.) Unless the parties stipulate that the defendant is eligible for resentencing, the court must "hold an evidentiary hearing at which the prosecution bears the burden of proving, 'beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder' under state law as amended by Senate Bill [No.] 1437. (§ 1172.6, subd. (d)(3).)" (Strong, at p. 709.)
At the hearing, the court may consider previously admitted evidence, so long as it remains "admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3).) The parties may offer new or additional evidence to meet their respective burdens. "'A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' [Citation.] 'If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.'" (Strong, supra, 13 Cal.5th at p. 709.) "Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were 'major participant[s] in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of . . . [s]ection 190.2'-that is, the statute defining the felony-murder special circumstance." (Strong, supra, 13 Cal.5th at p. 708; see § 189, subd. (e)(3).) By tethering the definition of "major participant" and "reckless indifference" to the felony-murder special circumstance (§ 190.2, subds. (a)(17), (d)), the felony-murder statute under section 189, subdivision (e)(3), now incorporates the clarification given to those concepts by People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
Section 190.2, subdivision (d), "'imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life.' (Banks, supra, 61 Cal.4th at p. 798.) '"These requirements significantly overlap . . . for 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.)" (In re Harper (2022) 76 Cal.App.5th 450, 458.) "[I]n Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522 our Supreme Court 'clarified the meaning of the special circumstances statute.' (In re Scoggins (2020) 9 Cal.5th 667, 671.) In Banks, the court held a 'major participant' in a robbery is someone whose 'personal involvement' is 'substantial' and 'greater than the actions of an ordinary aider and abettor ....' (Banks, supra, 61 Cal.4th at p. 802.) However, he or she 'need not be the ringleader.' (People v. Williams (2015) 61 Cal.4th 1244, 1281, cited with approval in Clark, at pp. 614, 619.)" (In re Harper, at p. 459.)
"Determining whether a defendant was a major participant requires consideration of the totality of the circumstances. (Banks, supra, 61 Cal.4th at p. 802.) Banks identified five nonexclusive factors for evaluating the extent of a defendant's participation: '[(1)] What role did the defendant have in planning the criminal enterprise that led to one or more deaths? [(2)] What role did the defendant have in supplying or using lethal weapons? [(3)] 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? [(4)] 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? [and (5)] What did the defendant do after lethal force was used?' (Id. at p. 803, fn. omitted.) None of the factors the court expressly articulated is necessary or necessarily sufficient, and all must be weighed in determining the ultimate question of 'whether the defendant's participation "in criminal activities known to carry a grave risk of death" [citation] was sufficiently significant to be considered "major."' (Id. at p. 803.)" (In re Harper, supra, 76 Cal.App.5th at p. 459, fn. omitted.)
"In Clark, the court noted reckless indifference to human life 'may be "implicit in knowingly engaging in criminal activities known to carry a grave risk of death."' (Clark, supra, 63 Cal.4th at p. 616.) '"[T]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed," and he or she must consciously disregard "the significant risk of death his or her actions create."' (In re Scoggins, supra, 9 Cal.5th at p. 677, quoting Banks, supra, 61 Cal.4th at p. 801 and citing Clark, at p. 617.) However, the court cautioned that merely participating in an armed robbery is not enough to show reckless indifference to human life. (Clark, at pp. 615616, 623; accord, In re Scoggins, at p. 677; Banks, at pp. 808, 810.)" (In re Harper, supra, 76 Cal.App.5th at p. 459.)
"Courts must view the totality of the circumstances to determine whether the defendant acted with reckless indifference to human life. (In re Scoggins, supra, 9 Cal.5th at p. 677.) Clark identified five relevant, but nonexclusive, factors for evaluating this subjective requirement: (1) the 'defendant's awareness that a gun [or other deadly weapon] will be used,' whether the defendant personally used a lethal weapon, and the number of lethal weapons used; (2) the defendant's '[p]roximity to the murder and the events leading up to it' and opportunity to either restrain the crime or aid the victim; (3) whether the murder took place 'at the end of a prolonged period of restraint of the victim[] by the defendant'; (4) the 'defendant's knowledge of . . . a cohort's likelihood of killing'; and (5) whether the defendant made an 'effort[] to minimize the risks of violence in the commission of a felony ....' (Clark, supra, 63 Cal.4th at pp. 618-622.) Again, no single factor is necessary, nor is any one necessarily sufficient. (Id. at p. 618.)" (In re Harper, supra, 76 Cal.App.5th at p. 460, fn. omitted.)
"Ordinarily, a trial court's denial of a section 1172.6 petition is reviewed for substantial evidence." (People v. Reyes (2023) 14 Cal.5th 981, 988; accord, Clements, supra, 75 Cal.App.5th at p. 298.) "Under this standard, we review the record '"'in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'"'" (Reyes, at p. 988.) "[O]ur job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder's findings beyond a reasonable doubt." (Clements, at p. 298.) "'We presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial.'" (In re Harper, supra, 76 Cal.App.5th at p. 460, quoting Clark, supra, 63 Cal.4th at p. 610.) We do not resolve credibility issues or conflicts in the evidence. (People v. Schell (2022) 84 Cal.App.5th 437, 442.) "Moreover, '"[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable."'" (People v. Oliver (2023) 90 Cal.App.5th 466, 484, quoting People v. Panah (2005) 35 Cal.4th 395, 489.)
2. Substantial evidence supports the trial court's finding that Fava was a major participant in the robbery.
For the first Banks factor, the evidence and reasonable inferences to be drawn from it amply support the conclusion that Fava played a key role in planning the robbery of Buckingham that resulted in Atencio's death. (Banks, supra, 61 Cal.4th at p. 803.)
Fava was the main actor in the two incidents that preceded and explained the reason for the home invasion robbery. In the first incident, Fava pounded at Buckingham's door and led the charge to burst into the apartment whereupon he kicked, punched, and beat Buckingham. When Lewis took Buckingham's shotgun and pointed it at Buckingham, Fava told Lewis not to point the shotgun at Buckingham. After finding some drugs and beating Buckingham some more, Fava and Lewis left with some marijuana, a video camera, a cell phone, and a shotgun. Fava told Buckingham not to report the attack and theft to the police or he would face serious repercussions. Buckingham testified he thought the reason for the attack was a conversation he had with the mother of Fava's girlfriend the day before. During the second incident, Rivera pulled behind Buckingham's car and tried to block him from leaving the parking lot while Fava got out of the passenger seat, approached Buckingham, and told Buckingham, "We need to talk." When Buckingham opened the window of his vehicle and pointed a Glock handgun at him, Fava put his hands up and backed away. Buckingham backed his vehicle into the SUV driven by Rivera and sped off. Fava got back into the SUV and said they were "gonna . . . kick his ass." Rivera gave chase but lost Buckingham.
And on the day of the murder, Fava said he and his cohorts were going to go to Buckingham's apartment because Fava was "gonna just kick his ass." Before they left, Fava's girlfriend heard Fava tell Lewis, "don't worry, they're strapped," meaning that Carr and Rivera had guns. After the men entered Buckingham's apartment, Fava went into Buckingham's bedroom, got on top of Buckingham, and proceeded to hit him in the face 10 to 20 times. Fava dragged Buckingham to the floor and started to kick him. When Lewis demanded to know where Buckingham kept his "stash," Fava said, "That's not what we're here to do. Do what we came here to do." Lewis immediately crouched down and choked Buckingham for 10 to 15 seconds. Finally, after Atencio had been shot, it was Fava who said, "We gotta go now," and he and his cohorts fled.
The second factor considers what role Fava played in supplying or using deadly weapons. (Banks, supra, 61 Cal.4th at p. 803.) Although there is no dispute Fava knew his confederates were armed and used their firearms during the robbery, no evidence was admitted at trial that Fava himself was armed with any weapon whatsoever or that he supplied the firearms to them. Therefore, this factor does not weigh against Fava.
For the third factor, the evidence and the reasonable inferences to be drawn from it strongly support the conclusion that Fava was keenly aware of the "particular dangers posed" by the robbery. (Banks, supra, 61 Cal.4th at p. 803.) To repeat, before Fava and his confederates left to commit the assault and robbery, Fava was overheard telling Lewis, "don't worry, they're strapped," meaning Carr and Rivera were armed with guns. Moreover, the crime Fava helped plan and execute was not the garden variety armed robbery that will only rarely support a felony murder conviction. (See Clark, supra, 63 Cal.4th at p. 617 [armed robbery, "on its own and with nothing more presented, is not sufficient to support a finding of reckless indifference to human life"]; see id., at p. 617, fn. 74 ["A robbery in which the only factor supporting reckless indifference to human life is the fact of the use of a gun" is "'a garden-variety armed robbery'"].) The armed home invasion robbery of a drug dealer Fava knew to possess firearms was a "particularly risky crime," and "[t]he potential for it to turn violent was obvious." (In re McDowell (2020) 55 Cal.App.5th 999, 1011, 1013 [planning and taking part in armed robbery of a drug dealer supported trial court's major participant and reckless indifference findings]; accord, People v. Bascomb (2020) 55 Cal.App.5th 1077, 1089-1090 [defendant's participation in planning and executing armed home invasion robbery of marijuana dealer supported finding of reckless indifference].) In other words, the very nature of the planned assault on Buckingham "elevated the risk to human life beyond those risks inherent in any armed robbery." (Clark, at p. 623.)
Next, for the fourth factor, "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" (Banks, supra, 61 Cal.4th at p. 803, fn. omitted), there is no question Fava was present in the apartment when Atencio was shot. But, nothing in the record supports the conclusion Fava was positioned to either prevent or play a role in the shooting. To the contrary, the evidence suggests that, when Fava ran to the living room, he hit the deck once the shooting started. When the shooting stopped, Fava "hop[ped] up" from the floor, said, "We gotta go," and ran out the front door.
Last, Fava's actions after the shooting of Atencio support the conclusion he was a major participant in the robbery. (Banks, supra, 61 Cal.4th at p. 803.) Instead of calling 911 or otherwise trying to help Atencio, Fava said, "We gotta go now." Fava and his confederates ran from the apartment, got into their vehicles, and fled.
Although not all Banks factors weigh against Fava, key factors strongly support a finding that Fava was a major participant. To recap: Fava was the primary instigator and planner of the robbery; he was keenly aware of the elevated risk of violence because he knew Buckingham possessed a handgun and because Fava knew his confederates would be "strapped" during the assault; and, after Atencio was shot, Fava did nothing to help him. True, there is no indication in the record that Fava anticipated Atencio would be present in the apartment, let alone that Atencio would start a gunfight, but we cannot agree with Fava that the shooting was so serendipitous that Fava cannot be held liable for Atencio's death.
3. Substantial evidence supports the finding that Fava acted with reckless disregard for human life.
The first factor under Clark considers Fava's awareness of and personal use of a lethal weapon, and the number of lethal weapons used. (Clark, supra, 63 Cal.4th at pp. 618-619.) There is no evidence Fava himself used any weapon during the robbery. But he was obviously aware that Carr and Rivera were armed with guns because, before they left to commit the assault and robbery, Fava told Lewis, "don't worry, they're strapped." And, from the prior incident in Buckingham's parking lot, Fava knew Buckingham possessed and was not afraid to brandish a firearm. As indicated ante, the unique risks involved in robbing and assaulting an armed drug dealer elevated the dangerousness of Fava's crime above a garden variety armed robbery. (Clark, supra, 63 Cal.4th at pp. 617 &fn. 74, 623; In re McDowell, supra, 55 Cal.App.5th at pp. 1011, 1013; People v. Bascomb, supra, 55 Cal.App.5th at pp. 1089-1090.)
The second Clark factor-Fava's proximity to the killing and the events leading to it, and whether he had the opportunity to either restrain the crime or aid the victim (Clark, supra, 63 Cal.4th at pp. 619-620)-does not weigh strongly against Fava. Fava was in the bedroom assaulting Buckingham when Atencio started shooting. But, as noted in the context of the Banks factors, nothing in the record suggests Fava was aware that anyone other than Buckingham was in the apartment. By the time Fava ran to the living room the gunfight was apparently already underway, and he obviously threw himself to the floor and did not "hop[] up" until the shooting was over.
The third Clark factor considers "whether a murder came at the end of a prolonged period of restraint of the victims by defendant." (Clark, supra, 63 Cal.4th at p. 620, fn. omitted.) The record suggests the attack on Buckingham unfolded rather quickly, and there is no evidence either Fava or his confederates restrained Atencio. Therefore, this factor does not weigh against Fava.
The fourth Clark factor-Fava's knowledge of his confederate's likelihood of killing (Clark, supra, 63 Cal.4th at p. 621)-also does not weigh in favor of a finding of reckless indifference. Fava knew his confederates would be "strapped" during the home invasion. But the record contains no evidence of what Fava may have known about his confederates' previous use of firearms and deadly force, or whether they were likely to kill if they encountered resistance.
Finally, the record contains no evidence that Fava took any steps to minimize the risk of violence in the commission of the robbery, which weighs strongly in favor of finding he acted with reckless disregard for human life. (Clark, supra, 63 Cal.4th at pp. 621-622.) Whereas during the first incident Fava told Lewis not to point the shotgun at Buckingham, during the last incident Fava instructed Lewis not to worry about Buckingham's "stash" and to instead do what they had come to do, to wit, to inflict violence upon Buckingham. Lewis complied and choked Buckingham. And once the shooting was over, Fava did nothing to assist Atencio.
Again, not all Clark factors support a finding that Fava acted with reckless indifference to human life. However, the factors that are present strongly support such a finding. To repeat: Fava knew that two of his confederates would be "strapped" during the home invasion and assault, and he would reasonably have known that Buckingham would have a firearm too. The very nature of and risks involved in the crime place it above a garden variety armed robbery. Finally, Fava took no steps to minimize the risk involved, either by instructing his confederates not to arm themselves or by assisting Atencio once the shooting was over.
In sum, we conclude the record of Fava's conviction contains substantial evidence that he was a major participant in the underlying armed robbery, and that he acted with reckless disregard for human life. Therefore, the trial court correctly ruled Fava could still be convicted today of felony murder and correctly denied his petition for resentencing.
IV. DISPOSITION
The order denying Fava's petition for resentencing is affirmed.
We concur: MILLER J., MENETREZ J.