People v. York

Filed 9/3/20
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B298635

Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. BA042241)

v.

REGINALD RAY YORK,

Defendant and
Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Robert J. Perry, Judge. Reversed and
remanded.

Pursuant to California Rules of Court, rules 8.1105(b)
*

and 8.1110, the introductory paragraphs, Part I, the
introductory paragraphs of Part II, Part II.B.1, and the
disposition section of this opinion are certified for
publication; the concurring opinion is certified for
publication in full.
 Paul Couenhoven, 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, Idan Ivri, Acting
Supervising Deputy Attorney General, Gary A. Lieberman,
Deputy Attorney General, for Plaintiff and Respondent.
__________________________

Defendant and appellant Reginald York appeals from a
postjudgment order denying his petition for resentencing
pursuant to Penal Code section 1170.951 and Senate Bill No.
1437 (Stats. 2018, ch. 1015) (Senate Bill 1437). As relevant
here, the statute and Senate bill provide for vacatur of a
defendant’s murder conviction and resentencing if the
defendant was convicted of felony murder and the defendant
(1) was not the actual killer, (2) did not act with the intent to
kill, and (3) was not a major participant in the underlying
felony who acted with reckless indifference to human life.
(§ 189, subd. (e).)
York contends the trial court erred by (1) summarily
denying his petition without first appointing counsel, (2)
denying the petition on the merits, and (3) denying the
petition on the basis that Senate Bill 1437 and section
1170.95 are unconstitutional.

1 All further statutory references are to the Penal Code
unless otherwise indicated.

2
 The People agree that section 1170.95 and Senate Bill
1437 are not unconstitutional, but argue that the trial
court’s ruling should be affirmed, because in 1994 the jury
found true the special circumstance that the murder was
committed during the commission of a robbery (§ 190.2,
subd. (a)(17)), a finding which we affirmed on direct appeal
in 1996.
We reverse and remand to the trial court. We agree
with the parties that section 1170.95 and Senate Bill 1437
are not unconstitutional. In the published portion of our
opinion, we further conclude that the trial court was
required to appoint counsel to York before ruling on his
petition.

I. FACTS AND PROCEDURAL HISTORY

A. Murder Conviction

In 1994, York was convicted of first degree murder
(§ 187, subd. (a) [count 1]) under a felony murder theory of
liability. The jury found true the special circumstance that
the murder was committed during the commission of a
robbery pursuant to section 190.2, subdivision (a)(17), and
the allegation that a principal was armed with a firearm
(§ 12022, subd. (a)(1)). York was additionally convicted of
two counts of kidnapping (§ 209; [counts 2 & 3]), two counts
of burglary (§ 459; [counts 4 & 5]), one count of residential
robbery (§ 211; [count 7]), and three counts of rape (§§ 261,

3
subd. (a)(2), 264.1, 289; [counts 8–10]). He was sentenced to
life without the possibility of parole, plus 22 years in state
prison.2

B. Appeal

York appealed, contending, as pertinent here, that
there was insufficient evidence that he acted with “reckless
indifference to human life,” as required to support the jury’s
robbery murder special circumstance finding, and that the
trial court gave an erroneous instruction regarding “reckless
indifference.” (York, supra, B088372, at pp. 12–13.) This
court concluded that the jury’s robbery-murder special
circumstance finding was supported because substantial
evidence was presented to demonstrate that York acted with
“reckless indifference to human life,” i.e. that he had a
“subjective appreciation or knowledge . . . [that his] acts
involved a grave risk that such acts could result in the death
of an innocent human being.” (Id. at p. 12.) We also held
that there was no error in the instruction given to the jury
regarding reckless indifference (CALJIC No. 8.80.1). (Id. at
p. 13.)

2 York’s offenses, carried out with his co-defendants
Anthony D. Jefferson and David Shawn Smith, as recited in
our unpublished opinion, People v. Reginald Ray York et al.
(Jan. 16, 1996, B088372) (York), are described in the trial
court’s ruling, post.

4
 C. Section 1170.95 Petition for Resentencing

1. Petition for Resentencing

On April 26, 2019, York petitioned for a writ of habeas
corpus and/or resentencing under section 1170.95.3

2. Trial Court’s Ruling

The trial court denied the petition on April 30, 2019.
The trial court’s written ruling discussed the reasons for
denial as follows:
“On April 25, 1991, Otis Ervin robbed an armored car
of $500,000. Six weeks later, Defendant York joined with
Anthony Jefferson and David Smith in an attempt to rob
Ervin of his ill-gotten gains. The intended robbery spiraled
into a major crime spree which included rape in concert,
rape by a foreign object in concert, burglaries, residential
robberies, kidnappings and murder. York was convicted by
jury and was sentenced to life without parole plus 22 years.
His conviction was affirmed by the Court of Appeal in 1996
in an unpublished opinion. (People v. Reginald Ray York, et
al., (January 16, 1996), ___ Cal.App.3d ___ [nonpub. opn.])

3 The Clerk of Court of the Superior Court of Los
Angeles County certified that the petition filed on April 26,
2019, could not be located. The parties agree that the trial
court’s order sufficiently refers to the arguments contained
therein.

5
Co-defendants Jefferson and Smith were also convicted and
sentenced to life without parole.
“The Court of Appeal opinion described the crimes
committed by Petitioner and his co-conspirators.
“In this case, substantial evidence of reckless
indifference to human life exists. York and Jefferson
kidnapped the Howard sisters at gunpoint from the parking
lot where they worked. They handcuffed the two sisters and
threatened repeatedly to kill them. They informed the
sisters that they knew where they and their family lived and
had been observing the family. They were joined by Smith
and drove the sisters around for hours. They burglarized
Reginald Ervin’s apartment.
“At the Perry residence, they held the entire Perry
household, including four small children, at gunpoint, while
they ransacked the house. They kicked, slapped, and beat
Reginald Ervin. They threatened to torture and kill the
family.
“They raped Yolanda, while continuing to hold her
family at gunpoint.
“It is apparent defendants knew that their acts
involved a grave risk of the death of an innocent human
being. They held two young women at gunpoint and in
handcuffs for hours, they held a family, including young
children, at gunpoint while they ransacked the residence
and raped a sister. They threatened to torture and kill the
young women and the family. When Reginald Ervin
attempted to break free to get a gun to protect his family,

6
defendants shot and killed him.’ (People v. Reginald Ray
York, el al., Id., pp. 12, 13.)
“In this petition for re-sentencing pursuant to Penal
Code 1170.95, York claims he was not the actual killer and
he did not act with the intent to kill. He also claims he was
not a major participant in the underlying felonies and did
not act with reckless indifference to human life in this
matter. The Court of Appeal found otherwise.
“The jury was instructed that in order to find the
felony-murder special circumstance to be true, it must find
that defendants were major participants in the underlying
felonies and acted with reckless indifference to human life.
(CALJIC No. 8.80.1.) ‘Reckless indifference to human life’
refers to a mental state which includes subjective
appreciation or knowledge by a defendant that the
defendant’s acts involved a grave risk that such acts could
result in the death of an innocent human being.
(People v. Reginald Ray York, et al., Id.)
“The Court also observed that ‘substantial evidence of
reckless indifference to human life’ existed for each of the
defendants and it was ‘apparent defendants knew that their
acts involved a grave risk of the death of a human being.’
(Id.)
“York was a major participant in the events and acted
with obvious reckless indifference to human life during the
course of the many major crimes, including murder,
committed in this case. He is not eligible for sentencing

7
relief pursuant to Penal Code 1170.95. See Penal Code
§§ 189(e)(3) and 1170.95.”
As a second and independent ground for denying York’s
petition for resentencing, the court found that Senate Bill
1437 and section 1170.95 unconstitutionally (1) amend
Propositions 7 and 115; (2) violate Article 1, section 28,
subdivision (a)(6) and section 29 (Marsy’s Law); and (3)
violate the separation of powers doctrine, infringing on the
powers of the judiciary and the governor.

II. DISCUSSION

On appeal, York argues that section 1170.95 and
Senate Bill 1437 are constitutional, and that he was entitled
to appointment of counsel prior to the trial court making any
determination as to whether he made a prima facie showing
that he falls within section 1170.95’s provisions. He further
contends that the jury’s 1994 robbery-murder special
circumstance finding does not bar him from relief, as the
People argue.
The People concede, and we agree, that Senate Bill
1437 and section 1170.95 are constitutional. Contrary to
York’s position, a trial court can deny a petition pursuant to
section 1170.95 without appointing counsel to a petitioner
unless he or she “has made a prima facie showing that he
falls within the [statute’s] provisions” as required by section
1170.95, subdivision (c), and we maintain that view. (People
v. Torres (2020) 46 Cal.App.5th 1168, 1178 (Torres) review

8
granted June 24, 2020, S262011; People v. Smith (2020) 49
Cal.App.5th 85, 95, review granted July 22, 2020, S262835
(Smith).) However, because York has made the initial prima
facie showing under section 1170.95, subdivision (c), he is
entitled to appointment of counsel.

A. Constitutionality

The trial court denied York’s petition because Senate
Bill 1437 unconstitutionally (1) amends section 190, which
was passed by referendum in 1978 through Proposition 7,
and cannot be amended or repealed except by the people’s
vote; (2) amends Proposition 115 without a two-thirds
majority vote; (3) conflicts with Marsy’s Law (Art. 1, §§ 28,
subd. (a)(6), 29); (4) violates the separation of powers
doctrine with respect to the governor’s power of clemency;
and (5) violates the separation of powers doctrine with
respect to the judiciary’s power to resolve specific
controversies. The People concede, and we agree, that this
was error.
We have previously held that Senate Bill 1437 does not
unconstitutionally amend Proposition 7, and we have no
reason to deviate from our prior holding. (Smith, supra, 49
Cal.App.5th at pp. 91–92.) The remaining constitutional
challenges have been considered and rejected by numerous
courts. (People v. Lamoureux (2019) 42 Cal.App.5th 241
(Lamoureux); accord People v. Nash (2020) 52 Cal.App.5th
1041; People v. Lopez (2020) 51 Cal.App.5th 589; People v.

9
Alaybue (2020) 51 Cal.App.5th 207; People v. Johns (2020) 50
Cal.App.5th 46; People v. Prado (2020) 49 Cal.App.5th 480;
People v. Bucio (2020) 48 Cal.App.5th 300; People v. Solis
(2020) 46 Cal.App.5th 762; People v. Cruz (2020) 46
Cal.App.5th 740; People v. Superior Court (Gooden) (2019) 42
Cal.App.5th 270.) We agree with the results reached in
these cases, and as the parties are also in agreement that
Senate Bill 1437 is not unconstitutional on any of these
bases, we do not address the issue further.

B. Merits and Appointment of Counsel

Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of
murder under a felony murder theory of liability could
petition to have his or her conviction vacated and be
resentenced. Section 1170.95 initially requires a court to
determine whether a petitioner has made a prima facie
showing that he or she falls within the provisions of the
statute as set forth in subdivision (a), including that “(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
probable consequences doctrine[,] [¶] (2) [t]he 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[, and] [¶] (3) [t]he petitioner could not be convicted of

10
first or second degree murder because of changes to Section
188 or 189 made effective January 1, 2019.” (See § 1170.95,
subd. (c); People v. Verdugo (2020) 44 Cal.App.5th 320, 327,
review granted Mar. 18, 2020, S260493 (Verdugo).) If it is
clear from the record of conviction that the petitioner cannot
establish eligibility as a matter of law, the trial court may
deny the petition.4 (Id. at p. 330.) If, however, a
determination of eligibility requires an assessment of the
evidence concerning the commission of the petitioner’s
offense, the trial court must appoint counsel and permit the
filing of the submissions contemplated by section 1170.95.
(Id. at p. 332; Lewis, supra, 43 Cal.App.5th at p. 1140.)
In this case, the issue is whether there is anything in
the record of conviction that would permit the trial court to
determine that York does not fall within section 1170.95’s
provisions, such that it could deny his petition without
appointing counsel. More specifically, the question is
whether the trial court properly concluded as a matter of law
that the record on appeal precludes York from showing that

4 For example, if the jury was not instructed on a
natural and probable consequences or felony murder theory
of liability, the petitioner could not demonstrate eligibility as
a matter of law because relief is restricted to persons
convicted under one of those two theories. (See People v.
Lewis (2020) 43 Cal.App.5th 1128, 1138–1139, review
granted Mar. 18, 2020, S260598 (Lewis) [appellate court
opinion holding that jury convicted defendant of murder as a
direct aider and abettor barred defendant from relief as a
matter of law].)

11
he was not a major participant in the robbery and did not act
with reckless indifference to human life. We conclude the
record provides no basis for such a determination.

1. The Jury’s Special Circumstance Finding Does
Not Preclude Eligibility

The People urge us to affirm the trial court’s denial of
York’s petition on the basis of the jury’s 1994 robbery-
murder special circumstance finding (§ 190.2, subd. (a)(17)),
which we affirmed in 1996. The jury’s true finding was
predicated on its determination that York was both a “major
participant” in the robbery and acted with “reckless
indifference” to human life. Under section 1170.95, a
petitioner must make a prima facie showing that he or she
“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)(3).) The language of
section 189, subdivision (e)(3), as amended by Senate Bill
1437, tracks the language of the special circumstance
provision. Section 189, subdivision (e) now provides that “[a]
participant in the perpetration or attempted perpetration of
a felony listed in subdivision (a) [(in this case, robbery)] in
which a death occurs is liable for murder only if one of the
following is proven: [¶] . . . [¶] (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.”

12
 In their wording, the requirements for a special
circumstance finding are thus identical to the requirements
for felony murder, as it is currently defined. However, in
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark), our Supreme Court
“construed the meanings of ‘major participant’ and ‘reckless
indifference to human life’ ‘in a significantly different, and
narrower manner than courts had previously.’ (Torres,
supra, 46 Cal.App.5th at p. 1179.)” (Smith, supra, 49
Cal.App.5th at p. 93.) Where a special circumstance finding
was made before Banks and Clark, the terms “major
participant” and “reckless indifference” underlying that
finding have significantly different meanings than these
terms have for purposes of convicting a defendant of murder
pursuant to section 189, subdivision (e)(3), as amended by
Senate Bill 1437. As a consequence, a pre-Banks and Clark
special circumstance finding cannot preclude eligibility for
relief under the section 1170.95 as a matter of law, because
the factual issues that the jury was asked to resolve in a
trial that occurred before Banks and Clark were decided are
not the same factual issues our Supreme Court has since
identified as controlling.5
The Legislature has not indicated that these
differences in meaning should be ignored, nor has it

5 Neither a jury’s true finding on a special
circumstance allegation, nor a court’s affirmance of a true
finding, made post-Banks and Clark is presented in this
case, and we do not address either circumstance here.

13
expressed an intent to differentiate between defendants with
a pre-Banks and Clark special circumstance finding, and, for
instance, defendants who were not charged with a special
circumstance. A jury has not determined whether the
defendant was a “major participant” who acted with
“reckless indifference” under correctly articulated standards
in either case, yet Gomez and Galvan would require the first
category of defendants to seek habeas relief before filing a
section 1170.95 petition. We see no reason to require a
defendant with a pre-Banks and Clark special circumstance
to go through this additional step, and absent a statutory
basis for doing so, we will not read a limitation into section
1170.95 where none exists.
We do not find recent authority to the contrary
persuasive. On July 14, 2020, in a letter pursuant to
California Rules of Court, rule 8.254, the People alerted us to
Division One of the Court of Appeal, Fourth Appellate
District’s opinion in People v. Gomez (2020) 52 Cal.App.5th 1
(Gomez), which affirmed the trial court’s order denying the
petitioner relief under section 1170.95 on the basis of the
jury’s pre-Banks and Clark special circumstance finding.
The appellate court characterized “Gomez’s bid to relitigate
her felony murder conviction under section 1170.95 in light
of Banks and Clark . . . in effect a challenge to the sufficiency
of the evidence to support the robbery and kidnapping
special circumstance findings against her.” (Id. at p. 9.) The
court agreed with the prosecution that “the proper procedure
for [a petitioner] to challenge her special circumstance

14
findings based on clarification of the relevant law in Banks
and Clark is to bring a petition for habeas corpus, in which
she would bear the burden of showing the findings must be
vacated on the ground there is insufficient evidence to
support them.” (Id. at p. 10.) The court affirmed the trial
court’s denial of Gomez’s petition because “in finding the
robbery and kidnapping special circumstance allegations
true, the jury necessarily found that Gomez either
participated in the alleged robbery and kidnapping with the
intent to kill [the victim], or that she was a major
participant in those crimes who acted with reckless
indifference to [the victim’s] life. Because either finding
would allow Gomez to be convicted of first or second degree
murder notwithstanding the changes to sections 188 and 189
made effective January 1, 2019, Gomez is not eligible for
relief from her murder conviction under section 1170.95.
(§ 1170.95, subd. (a)(3).)” (Id. at p. 8.)
In an even more recent case, Division One of the Court
of Appeal, Second Appellate District reached the same
conclusion, under reasoning that the People urge us to adopt
here.6 (People v. Galvan (2020) 52 Cal.App.5th 1134
(Galvan).) The Galvan court affirmed the trial court’s
determination that “[b]y finding a [pre-Banks and Clark]
special circumstance allegation true, the jury makes
precisely the same finding it must make in order to convict a

6 The People brought Galvan to our attention in a
letter pursuant to California Rules of Court, rule 8.254,
dated August 13, 2020.

15
defendant of felony murder under the new law. Because a
defendant with a felony-murder special circumstance could
still be convicted of murder, he is ineligible as a matter of
law to have his murder conviction vacated. (See § 1170.95,
subd. (a)(3).)” (Id. at p. 1141.) Under Galvan, where a jury
has found a special circumstance true under the standards
as they were understood before Banks and Clark, the
petitioner must successfully challenge the special
circumstance in a habeas corpus proceeding before he or she
may be found eligible for resentencing under section
1170.95. (Ibid.) In reaching this conclusion, the Galvan
court stated that it disagreed with our opinions in Torres
and Smith. We agree that we disagree, but not for the
reasons that Galvan articulates.
Galvan states that in Torres and Smith, this court
“held that a defendant may challenge a felony murder
special circumstance by means of a petition under section
1170.95.” (Galvan, supra, 52 Cal.App.5th at p. 1141.)
Neither Torres nor Smith so holds. In fact, we agree with
Galvan and Gomez insofar as those cases hold that section
1170.95 does not create a mechanism to challenge a special
circumstance allegation under section 190.2, subdivision
(a)(17). Our analyses in Torres and Smith recognized that
section 1170.95 permits a petitioner to challenge a murder
conviction. If that challenge succeeds, then under section
1170.95, subdivision (d)(3), the special circumstance is
vacated as a collateral consequence. (§ 1170.95, subd. (d)(3)
[“[i]f the prosecution fails to sustain its burden of proof, the

16
prior conviction, and any allegations and enhancements
attached to the conviction, shall be vacated”].) The fact that
the special circumstance finding will be vacated as a result
of a successful challenge to the murder conviction does not
mean the special circumstance itself was challenged in the
section 1170.95 proceeding. For example, a gang
enhancement attached to a vacated murder conviction will
also be vacated. We would not consider the section 1170.95
proceedings to have been a challenge to the gang
enhancement; vacatur of the gang enhancement would
simply be the necessary collateral effect of a successful
challenge to the murder conviction to which it was attached.
The same is true of a special circumstance finding.
We part ways with Galvan and Gomez because we do
not agree that section 1170.95 requires a defendant to
challenge a pre-Banks and Clark special circumstance
finding in a habeas corpus proceeding before he or she may
successfully challenge the underlying murder conviction in a
section 1170.95 proceeding. The statute does not state that
a true finding on a special circumstance allegation
automatically precludes relief. To the contrary, its language
implies that there is no such bar to eligibility. Section
1170.95, subdivision (d)(2), provides: “If there was a prior
finding by a court or jury that the petitioner did not act with
reckless indifference to human life or was not a major
participant in the felony, the court shall vacate the
petitioner’s conviction and resentence the petitioner.” We
find it significant that the Legislature made no provision for

17
the consequence of a prior finding by a court or a jury that a
petitioner was a major participant and did act with reckless
indifference to human life.7 If the Legislature had intended
such a finding automatically to preclude eligibility for relief,
it could have said so. We will not read a preclusive provision
into the statute absent any indication that the Legislature
intended one.
Ignoring the import of section 1170.95, subdivision
(d)(2)—the only portion of the statute that addresses an
aspect of a special circumstance finding—Gomez and Galvan
advance between them two reasons for their newly-crafted
requirement that a petitioner with a pre-Banks and Clark
special circumstance finding must first seek habeas corpus
relief. Neither reason is persuasive.
First, the Galvan court states that “[a]lthough Galvan
is asserting that he could not now be convicted of murder,
the alleged inability to obtain such a conviction is not
‘because of changes’ made by Senate Bill No. 1437, but
because of the clarification of the requirements for the
special circumstance finding in Banks and Clark. Nothing
about those requirements changed as a result of Senate Bill
No. 1437.” (Galvan, supra, 52 Cal.App.5th at p. 1142.)
This is simply untrue. What permits a defendant
convicted of felony-murder to challenge his or her murder
conviction based on the contention that he or she was not a

7 Subdivision (d)(2) is the only provision in section
1170.95 that uses the language “act with reckless
indifference to human life” and “major participant.”

18
major participant in the underlying felony who acted with
reckless indifference to human life, are the changes Senate
Bill 1437 made to sections 188 and 189, and in particular the
addition of section 189, subdivision (e)(3), not the rulings in
Banks and Clark. This is readily apparent from the fact
that, even a petitioner who successfully challenged a special
circumstance finding after Banks and Clark, but before
Senate Bill 1437 became effective, remained convicted of
murder. (In re Bennett (2018) 26 Cal.App.5th 1002, 1026–
1027 [special circumstance finding vacated on habeas corpus
pursuant to Banks and Clark with directions to resentence
petitioner for robbery and felony murder].) It took the
changes wrought by Senate Bill 1437 to permit the challenge
to the murder conviction itself. (See In re Taylor (2019) 34
Cal.App.5th 543, 561–562 [requiring petitioner who
successfully challenged special circumstance finding
pursuant to Banks and Clark after effective date of Senate
Bill No. 1437 to file separate proceeding pursuant to section
1170.95 regarding murder conviction].)
Second, Galvan and Gomez assert that allowing a
defendant with a pre-Banks and Clark special circumstance
finding to proceed pursuant to section 1170.95 would “give
[the defendant] an enormous advantage over other similarly
situated defendants based solely on the date of his
conviction. Defendants convicted after the Supreme Court
issued its decisions in Banks and Clark would be required to
challenge the sufficiency of the evidence of the special
circumstance finding on direct appeal, where the People

19
would need only to show that substantial evidence supported
that finding. . . . [In contrast, in the case of] a defendant . . .
convicted before Banks and Clark . . . the prosecution would
be required to prove the special circumstance beyond a
reasonable doubt. (See Gomez, supra, 52 Cal.App.5th 17.)”
(Galvan, supra, 52 Cal.App.5th at pp. 1142–1143.) Galvan
concluded that “nothing in the language of Senate Bill No.
1437 suggests that the Legislature intended unequal
treatment of such similarly situated defendants.” (Id. at
p. 1143.)
But the difference in treatment between the classes of
defendants that Gomez and Galvan construct is not
arbitrary, nor based “solely” on the dates of conviction: the
difference is based on whether a particular defendant ever
had the necessary elements of the amended murder statutes
proven beyond a reasonable doubt. Gomez and Galvan fail
to recognize that, in the case of a post-Banks and Clark
conviction, a jury has found, beyond a reasonable doubt, that
the defendant was a “major participant” who acted with
“reckless indifference” under correctly articulated standards.
It is only on direct appeal that such a defendant is subject to
the substantial evidence standard. In contrast, a defendant
convicted pre-Banks and Clark has never had the benefit of
the beyond a reasonable doubt standard as to those essential
elements; yet, Gomez and Galvan would require such a
defendant to overcome a substantial evidence standard in a
habeas corpus proceeding. Permitting a defendant who has
never been found to be a “major participant” who acted with

20
“reckless indifference” under the murder statutes as
amended by Senate Bill No. 1437 (i.e., standards consistent
with the requirements of Banks and Clark) to do so in the
first instance in a section 1170.95 proceeding affords all
defendants equal treatment in the application of section 189,
subdivision (e)(3).
We held in Torres and Smith that a pre-Banks and
Clark special circumstance finding—necessarily made on the
basis of our former, and significantly different,
understanding of what the terms “major participant” in the
underlying felony and “reckless indifference” to human life
meant—does not preclude relief under section 1170.95 as a
matter of law. The trial court simply cannot deem the
findings underlying the special circumstance identical to the
findings necessary to preclude eligibility under section
1170.95 without making a separate determination
concerning the validity of the special circumstance—
something that is not authorized by section 1170.95. When
the trial court cannot determine that the petitioner is
ineligible for relief as a matter of law on the basis of the
special circumstance (or on any other basis), the petitioner is
permitted to proceed to the next stage of review under
section 1170.95, subdivision (c). In that next stage, the trial
court must evaluate, after appointment of counsel (if
requested) and briefing, whether the facts and circumstances
of the offense(s) prevent the petitioner from making “a prima
facie showing that he or she is entitled to relief.” (§ 1170.95,
subd. (c).)

21
 In this case, the jury’s special circumstance finding,
affirmed in 1996, approximately two decades before Banks
and Clark were decided, does not preclude York from relief
as a matter of law. We cannot affirm the trial court’s ruling
on this ground, as the People urge.

2. The Trial Court Erred in Summarily Denying
the Petition Based on Its Evaluation of Facts
Recited in the Record of Conviction

Here, without appointing counsel to York or permitting
counsel to make a filing, the trial court reviewed this court’s
1996 appellate opinion and considered the facts as described
in the discussion of the sufficiency of the evidence supporting
the special circumstance. The trial court made a
determination that those facts were sufficient to establish
that York was a major participant in the underlying felony
and acted with reckless indifference to human life. It was
error for the trial court to engage in this factual analysis at
this stage of the proceedings. (Smith, supra, 49 Cal.App.5th
at pp. 95–96.)
Because neither of the trial court’s reasons for denying
York’s petition is valid, and it does not appear that he is
otherwise ineligible for relief as a matter of law as the
People argue, we reverse and remand the matter to the trial
court to appoint counsel and consider briefing.

22
 DISPOSITION

The trial court’s order denying York’s resentencing
petition is reversed and the matter remanded for the trial
court to appoint counsel and conduct further proceedings in
accordance with the terms of section 1170.95.

MOOR, J.

I concur:

KIM, J.

23
The People v. Reginald Ray York
B298635

BAKER, Acting P. J., Concurring

The opinion for the court persuasively explains why
reversal is required notwithstanding the recent opinions in
People v. Gomez (2020) 52 Cal.App.5th 1 (Gomez) and People
v. Galvan (2020) 52 Cal.App.5th 1134 (Galvan).1 I concur in
that judgment. I write separately to elaborate on Galvan
and Gomez in one respect.
The majority opinion discusses various reasons why
Gomez and Galvan incorrectly conclude a Penal Code section
1170.952 petitioner convicted of special circumstances
murder before People v. Banks (2015) 61 Cal.4th 788 (Banks)
and People v. Clark (2016) 63 Cal.4th 522 (Clark) cannot
make a prima facie showing of eligibility for section 1170.95
relief. Among these reasons is the astute observation that a
section 1170.95 petition is not a challenge to a special

1 The same court that decided Galvan also recently
published another decision, People v. Murillo (Sept. 1, 2020,
B297546) ___ Cal.App.5th ___, that repeats its earlier
analysis in Galvan. The comments I offer apply equally to
both opinions.
2 Undesignated statutory references that follow are to
the Penal Code.
circumstance finding but rather a challenge to the associated
murder conviction that can obviously result in vacatur of a
special circumstance finding as a collateral consequence
(§ 1170.95, subd. (d)(3)).
The majority opinion does not discuss another reason
why the analysis in Gomez and Galvan is unpersuasive: the
Gomez and Galvan courts do not specify a legal grounding
for their conclusion that a habeas petition must precede the
filing of a section 1170.95 petition when a pre-Banks and
Clark special circumstance allegation is found true. Galvan,
for instance, repeats the Attorney General’s argument in
that case that a section 1170.95 petition is not a “proper
vehicle” for a challenge to a special circumstance allegation
true finding.3 (Galvan, supra, 52 Cal.App.5th at 1141; see
also id. at 1143 [“section 1170.95 is not the correct vehicle for
a Banks and Clark special circumstance challenge”].) Gomez
does the same. (Gomez, supra, 52 Cal.App.5th at 17 [“We
agree with the People that the proper procedure for [the
petitioner] to challenge her special circumstance findings
based on clarification of the relevant law in Banks and Clark
is to bring a petition for habeas corpus . . .”].)
But “proper” according to what? Galvan and Gomez
cite no constitutional provision, no statute, and no
controlling precedent that compels the conclusion that a

3 As the majority opinion explains and I have already
reiterated, this is the wrong framing. A section 1170.95
petition is a challenge to the murder conviction, not the
associated special circumstance finding.

2
habeas petition must precede the filing of a section 1170.95
petition in a special circumstance case. (Galvan, supra, 52
Cal.App.5th at 1142 [“It is not only unnecessary, in light of
the existence of habeas corpus relief, to allow Galvan to
proceed with a petition under section 1170.95 . . .”], italics
added; Gomez, supra, 52 Cal.App.5th at 17.) Galvan does
reason that a petitioner who does not file a habeas petition
before a section 1170.95 petition is given “an enormous
advantage over other similarly situated defendants”
(Galvan, supra, at 1142), and assuming the Galvan court is
relying on something other than its own notion of fair play,
we may be meant to infer the opinion’s rationale is premised
on some sort of invocation of constitutional equal protection
principles. But the Galvan court never comes out and says
that, and I see no justification for such an odd invocation of
equal protection doctrine. Moreover, even taking Galvan on
its own terms, the majority opinion in this case correctly
explains “the difference in treatment between the classes of
defendants that Gomez and Galvan construct is not
arbitrary, nor based ‘solely’ on the dates of conviction: the
difference is based on whether a particular defendant ever
had the necessary elements of the amended murder statutes
proven beyond a reasonable doubt.”

3
 I have accordingly seen nothing to date that causes me
to reconsider my view that People v. Smith (2020) 49
Cal.App.5th 85, review granted Jul. 22, 2020, S262835 is
correctly decided.

BAKER, Acting P. J.

4