California Court of Appeal Dec 4, 2025 No. E083675Unpublished
Filed 12/4/25 P. v. Owens CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083675
v. (Super.Ct.No. INF039223)
DAMIEN OWENS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Jazmyne D. Alverson, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Kathryn
Kirschbaum and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and
Respondent.
1
Defendant and appellant Damien Owens appeals the superior court’s denial of his
petition for resentencing under Penal Code1 former section 1170.95, now renumbered as
section 1172.6. (Stats. 2022, ch. 58, § 10.) Following an evidentiary hearing, the court
concluded defendant could be convicted of first degree murder under current law because
he was a major participant in the robbery who acted with reckless indifference to human
life. (See §§ 189, subds. (a) & (e)(3), 1172.6, subd. (a)(3).) Defendant contends the
court erred by not distinguishing between the “major participation” factors of People v.
Banks (2015) 61 Cal.4th 788 (Banks) and refusing to consider the “reckless disregard”
factors of People v. Clark (2016) 63 Cal.4th 522 (Clark). We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND2
A. The Shooting
About 2:00 a.m. on December 19, 2001, Officer Denney of the Desert Hot Springs
Police Department saw a midsize, four-door white car with its parking lights on parked in
front of an apartment complex at Second and Mesquite. In the car were a female driver,
Shalamar Wiley, and a male passenger, codefendant Rayshawn Lamarr Session. Denney
told them it would be a good idea to leave, because they were parked in front of a known
“crack house.” (Owens, supra, E033148.)
1 Further unspecified statutory references are to the Penal Code.
2 On our own motion, we take judicial notice of the nonpublished opinion in People v. Owens et al. (Apr. 12, 2005, E033148) (Owens), from defendant’s appeal from the judgment. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).) We repeat our prior opinion’s factual and procedural background.
2
Russell Wilson (the victim) lived in a one-bedroom, one-bathroom apartment in
the complex at Second and Mesquite with his girlfriend Faye Ransom, her mother
Session stated he and the others only went to the apartment to rob the victim.
Asked why, in that case, he took the gun with him, he explained, “Well, what do you rob
somebody with . . . .” After making his recorded statement, he led the investigators to the
gun. (Owens, supra, E033148.)
3. Walton
Walton was interviewed in January 2002, in the presence of his attorney and a
defense investigator. He said he had gone to the apartment complex on December 19,
2001, and was in the car when the police officer contacted Wiley and Session in front of
the complex, but he bent down and was out of the view of the officer. After the officer
left, he went inside the apartment to use the bathroom located in the bedroom. He left the
apartment and went back outside to the front of the complex. He denied removing any
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property from the apartment and denied being in the apartment when the victim was shot.
(Owens, supra, E033148.)
C. Session’s Trial Testimony
At trial, Session testified he went to the apartment complex on December 19,
2001, with Wiley, defendant, and Walton to sell some drugs. Wiley did not want to go
inside, so he stayed with her in the car. Session, Walton, and defendant were supposed to
take turns sitting in the car with her. Defendant brought a gun along and put it behind the
car seat. (Owens, supra, E033148.)
After an hour and a half, defendant and Walton had not returned, so Session went
to the door of the apartment and asked them whether they wanted to switch places. They
declined, so Session went back to the car. He went to the apartment door a second time
but returned to the car. The third time he went to the apartment door, he went inside, sat
down, and talked to defendant. Walton was sitting and smoking a cigarette. Session had
never seen any of the other people in the apartment before. (Owens, supra, E033148.)
After a while, Session heard an argument going on in the bedroom. He looked in
the bedroom and saw Ransom standing inside arguing with a man Session did not
recognize. The victim was lying in the bed. The man who had been arguing with
Ransom came out of the room and asked if anyone had a gun. Session had brought the
gun from the car for protection, because the apartment was a dope house. The man asked
to use the gun, so Session gave it to him. The man put it in his waistband and walked
back into the bedroom. He told Ransom that since they did not have his money, he was
9
going to take the DVD player and PlayStation as collateral. He told Sophia Lindsey to
get him a bag to put the stuff in. Ransom woke the victim up to tell him the man was
taking the stuff. The victim and the man started arguing. The man tried to hit the victim
with the gun, but the victim moved out of the way, and the gun bounced off the bed and
went off. (Owens, supra, E033148.)
Session asked the man why he shot the victim. The man said it was an accident.
Session took the gun back and started walking out the door. The man unhooked the
PlayStation and went out of the bedroom. Session suggested he and defendant leave.
Defendant took the DVD player, and defendant, Session and Walton left the apartment.
The man who had shot the victim left right after that. Session thought the name of the
man who shot the victim was Bam, but he was not sure. (Owens, supra, E033148.)
Session disposed of the gun because he was afraid of getting pulled over and
caught with it when it had been used to kill the victim. He further testified that his
extrajudicial statement to the police was not truthful. He made the statement because the
investigator said they knew he did it, and if he confessed and said the killing was an
accident, he would get voluntary manslaughter. Before Session made the statement, the
investigator went over the whole case with him. Based on what the investigator told him,
he made the statement. (Owens, supra, E033148.)
According to Session, when he and the others went to the apartment complex on
December 19, 2001, Walton did not know what the plan was. On May 6, 2002, Session
sent a letter to Walton’s mother stating Walton had nothing to do with what happened.
10
The letter also stated that when Session gave the gun to the man who shot the victim, he
did not know the man was going to shoot, because all the man said was that he was going
to scare the victim because he owed the man money. On June 28, 2002, Session wrote to
Walton’s attorney, stating that although Walton was inside the apartment at one point, he
was not there when the crime took place and did not have any knowledge of what
happened in the apartment. (Owens, supra, E033148.)
After Session testified, Investigator McDonagh testified he did not offer or give
Session anything in return for his extrajudicial statement. According to McDonagh, the
question whether he could assist Session in any way never came up. (Owens, supra,
E033148.)
D. The Verdict and Sentence
On September 11, 2002, the jury convicted defendant of first degree murder with
robbery and burglary felony-murder special circumstances (§§ 187, 190.2, subd. (a)(1) &
(17)(G)), first degree residential robbery (§§ 211, 212.5), and first degree residential
burglary (§ 459), and found that a principal was armed in the commission of the offenses
(§ 12022, subd. (a)(1)). (Owens, supra, E033148.) He was sentenced to life without the
possibility of parole for the felony-murder conviction, plus one year for the arming
enhancement, six years for the robbery conviction (stayed under § 654), and one year
four months for the burglary conviction (stayed under § 654). We affirmed his
convictions. (Owens, supra, E033148.)
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E. Petition for Resentencing
After Senate Bill No. 1437 came into effect, defendant petitioned the superior
court for resentencing under section 1172.6. Following an evidentiary hearing, the court
denied the petition, finding that defendant was a major participant and acted with reckless
indifference to human life as evidenced by the facts that he set up the robbery, provided
the gun, and was not surprised when Session used the gun to kill the victim.
II. DISCUSSION
Conceding that he was a major participant in the robbery, defendant contends the
superior court “ignored his pleas to review his state of mind pursuant to Clark, merely
referencing its overlap with Banks.” He argues there is a “clear distinction between the
factors in Banks, which analyzes [his] participation in the underlying felony, and the
factors in Clark, which analyzes [his] mens rea.” He faults the court for using Session’s
actions to implicate him in the murder without considering his “delay, his cohort running
out of patience,” his “warning to other people at the apartment,” or his “attempt to de-
escalate the risk of violence.”
A. Applicable Legal Principles
“Section 189, subdivision (e), which permits a felony-murder conviction only
when specified facts relating to the defendant’s individual culpability have been proved,
incorporates in subdivision (e)(3) the same requirements for proving the defendant acted
with reckless indifference to human life as a major participant in one of the identified
serious felonies as necessary for a felony-murder special-circumstance finding under
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section 190.2, subdivision (d).[3] The factors properly considered in assessing such a
felony-murder special-circumstance finding were clarified in Banks, supra, 61 Cal.4th
788 and Clark, supra, 63 Cal.4th 522, [more than one decade after defendant’s]
conviction. [Citation.]” (People v. Harris (2021) 60 Cal.App.5th 939, 954.)
As relevant to the case before this court, the California Supreme Court recently
reviewed the history behind the major participant and reckless indifference concepts and
interpreted the reckless indifference standard: “In brief, the major participant and
reckless indifference concepts trace their origin to a pair of United States Supreme Court
decisions—Enmund v. Florida (1982) 458 U.S. 782 (Enmund) and Tison v. Arizona
(1987) 481 U.S. 137 (Tison)—that articulate the constitutional limits of capital
punishment for accomplices to felony murder. [Citation.] In Enmund, the high court
held that a minor participant in an armed robbery (the getaway driver), who neither
intended to kill nor had any other culpable mental state, was ineligible for the death
penalty. [Citations.] A few years later, the high court revisited the issue in Tison,
considering the case of defendants who broke two convicted murderers out of prison,
armed the escaped prisoners, captured and then held a family of passing motorists at
gunpoint while the escapees deliberated whether to kill them, and then abandoned the
3 “Enacted in 1990, section 190.2, subdivision (d), provides that ‘every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.’ [Citation.]”
13
victims in the remote desert after the escapees shot them. [Citation.] The court held that
‘major participation in the felony committed, combined with reckless indifference to
human life,’ provides a sufficient degree of culpability to be eligible for a sentence of
death. [Citation.] Section 190.2, subdivision (d), . . . was designed to codify the holding
of Tison and, by extension, the related holding of Enmund. [Citation.] Section 190.2,
subdivision (d), by its text, imposes an actus reus requirement, i.e., major participation in
the enumerated felony, and a mens rea requirement, i.e., reckless indifference to human
life. [Citation.]
“Thereafter, in our own pair of cases—Banks, supra, 61 Cal.4th 788 and Clark,
supra, 63 Cal.4th 522—this court endeavored to elucidate the contours of the major
participant and reckless indifference standards. [Citation.] ‘Because the language
derived from United States Supreme Court felony-murder precedent, we looked to that
case law for guideposts.’ [Citation.] We observed that Enmund and Tison ‘collectively
place conduct on a spectrum’ of culpability, ‘with felony-murder participants eligible for
death only when their involvement is substantial and they demonstrate a reckless
indifference to the grave risk of death created by their actions.’ [Citation.] We cautioned
that, though the conduct of the defendants in Enmund and Tison mark opposite ends of
the spectrum for ‘nonkiller felony murderers,’ Enmund’s actions do not represent ‘the
outer limit of conduct immune from death eligibility,’ any more than the Tisons’ actions
represent the ‘constitutional minimum level of culpability for death eligibility.’
[Citation.]
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“To guide the ‘fact-intensive, individualized inquiry’ into where a defendant’s
conduct falls on the spectrum of culpability [citations], in Banks we identified a list of
considerations relevant to the major participant prong. [Citation.] Similarly, in Clark we
identified a list of considerations relevant to the reckless indifference prong. [Citations.]
In amending section 189, which governs murder liability generally, Senate Bill No. 1437
imported the actus reus and mens rea requirements from the special circumstance statute.
‘It is undisputed that when Senate Bill [No.] 1437 amended Penal Code section 189 to
incorporate major participation and reckless indifference requirements, it codified the
understanding of those requirements elucidated in Banks and Clark.’ [Citation.] We are
therefore guided . . . by our pronouncements in Banks and Clark, and our application of
their requirements in [In re Scoggins (2020) 9 Cal.5th 667 (Scoggins)].
“As set forth by the United States Supreme Court, ‘[r]eckless indifference to
human life is “implicit in knowingly engaging in criminal activities known to carry a
grave risk of death.”’ [Citation.] ‘Examples include “the person who tortures another not
caring whether the victim lives or dies, or the robber who shoots someone in the course
of the robbery, utterly indifferent to the fact that the desire to rob may have the
unintended consequence of killing the victim as well as taking the victim's property.”’
[Citation.] Although the high court’s examples describe actual killers, not accomplices to
felony murder, we explained they nonetheless ‘provide some indication of the high
court’s view of “reckless indifference” . . . .’ [Citation.] Namely, reckless indifference to
human life ‘encompasses a willingness to kill (or to assist another in killing) to achieve a
15
distinct aim, even if the defendant does not specifically desire that death as the outcome
of his actions.’ [Citation.]
“After extrapolating these animating principles from Tison, we went on to explain
that reckless indifference encompasses both subjective and objective elements.
[Citation.] ‘As to the subjective element, “[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.”’
[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.]
“‘The degree of risk to human life is crucial to the analysis.’ [Citation.] As the
United States Supreme Court has acknowledged, ‘“the possibility of bloodshed is
inherent in the commission of any violent felony,”’ such that one who perpetrates or
attempts to perpetrate such a crime may well anticipate ‘the use of lethal force as a
possibility.’ [Citation.] Were that degree of culpability sufficient, however, it would
amount to ‘“little more than a restatement”’ of the former felony-murder rule that Senate
Bill No. 1437 retired. [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
16
requirement.’ [Citation.] This Court has thus made clear that participation in a ‘“garden-
variety armed robbery,”’ i.e., one in which the only factor supporting a reckless
indifference finding is that a participant was armed with a gun, is insufficient without
more to establish reckless indifference. [Citations.]
“To aid in distinguishing those who knowingly engage in criminal activities
known to carry a grave risk of death from other felony perpetrators, Clark ‘set out a
nonexhaustive list of considerations relevant to this determination, including use of or
awareness of the presence of a weapon or weapons, physical presence at the scene and
opportunity to restrain confederates or aid victims, the duration of the crime, knowledge
of any threat the confederates might represent, and efforts taken to minimize risks.’
[Citation.] ‘“[N]o one of these considerations is necessary, nor is any one of them
necessarily sufficient.”’ [Citation.] The ‘totality of the circumstances’ must be analyzed
to determine whether the defendant acted with reckless indifference. [Citation.]”