People v. Jones

Filed 10/23/20; See concurring opinion
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION

THE PEOPLE,

Plaintiff and Respondent, E072961

v. (Super.Ct.No. RIF74986)

HENRY ALEXANDER JONES, JR., OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G.

McGinnis and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.

1
 Henry Jones appeals from the denial of his petition to vacate his murder

conviction under Penal Code section 1170.95, the resentencing provision of Senate Bill
1
No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (SB 1437). In 2000, Jones was

convicted of attempted murder and first degree felony murder, and the jury also found

true the robbery-murder special circumstance, which authorizes a sentence of life without

the possibility of parole for “a major participant” in a felony murder who acted with

“reckless indifference to human life.” (§ 190.2, subds. (a)(17) & (d).) The trial court

summarily denied Jones’s section 1170.95 petition on the ground that his special

circumstance finding rendered him ineligible for relief as a matter of law.

On appeal, Jones argues the trial court erred by denying his petition without the

benefit of briefing from his counsel. He argues he can demonstrate a prima facie case for

relief because his special circumstance finding no longer supports a felony-murder

conviction after our Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788

(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the meaning

of “major participant” and “reckless indifference to human life.”

Our appellate courts have recently split over whether such a pre-Banks/Clark

special circumstance finding renders a petitioner ineligible for relief under section

1170.95 as a matter of law. (Compare People v. Gomez (2020) 52 Cal.App.5th 1

(Gomez), People v. Galvan (2020) 52 Cal.App.5th 1134 (Galvan), and People v. Allison

(Oct. 2, 2020, B300575) __ Cal.App.5th __ [2020 Cal.App. Lexis 925] (Allison)

1 Unlabeled statutory citations refer to the Penal Code.

2
[concluding the special circumstance finding renders a petitioner ineligible for relief as a

matter of law], with People v. Torres (2020) 46 Cal.App.5th 1168, review granted June

24, 2020, S262011 (Torres), People v. Smith (2020) 49 Cal.App.5th 85, review granted

July 22, 2020, S262835 (Smith), and People v. York (2020) 54 Cal.App.5th 250 (York)

[reaching the opposite conclusion].) As we will explain, we agree with the Gomez/Galvan

line of decisions and hold that a petitioner with a pre-Banks/Clark finding is ineligible for
2
relief under section 1170.95 as a matter of law. We therefore affirm.

I

FACTS

The underlying facts of Jones’s murder conviction are not relevant to our analysis,

so we recount them only briefly, taking from our unpublished opinion in his direct appeal

People v. Bishop et al. (June 27, 2001, E027001) (Bishop). (See People v. Lewis (2020)

43 Cal.App.5th 1128, 1134, 1138, review granted Mar. 18, 2020, S260598 [court may
3
review record of conviction in assessing sufficiency of a section 1170.95 petition].) In

1996, Jones and three other men committed a home invasion robbery during which they

shot one resident three times and killed the other. Before trial, Jones confessed to state

2 By a separate order concurrently filed in case number E072992, we have denied
Jones’s pro se petition for habeas corpus challenging the denial of his section 1170.95
petition.

3Our Supreme Court recently granted review of People v. Lewis, supra, 43
Cal.App.5th 1128 and will resolve, among other issues, whether a superior court may
review the record of conviction when determining whether a section 1170.95 petitioner
has made a prima facie showing of eligibility for relief.

3
detectives that he had been involved in the robbery and identified the three other men

who had participated. (Bishop, supra, at pp. 11-17.) He said he had been with the three

men the day before the incident and the group planned to rob the victims. On the way to

the victims’ residence, the group had stopped by a field to distribute firearms, and Jones

had taken a shotgun. Jones offered to show the detectives where they hid their guns after

the robbery. (Id. at p. 12.) At trial, the prosecution presented evidence Jones was armed

during the robbery but wasn’t one of the shooters.

The jury convicted Jones of attempted murder (§§ 664/187), first degree felony

murder (§ 187) with the robbery-murder special circumstance (§ 190.2, subds. (a)(17)(A)

& (d)), and found true the allegation he had personally used a firearm in committing both

crimes (§ 12022.5, subd. (a)). The trial court sentenced him to life imprisonment without

the possibility of parole for the murder and to life with the possibility of parole for the

attempted murder. (Bishop, supra, at pp. 2-3.) Jones then appealed his conviction but

raised no claims regarding the sufficiency of the evidence presented against him. We

affirmed his conviction in 2001. (Bishop, supra, at p. 1.)

After Banks and Clark were decided in 2015 and 2016, respectively, Jones did not

file a petition for writ of habeas corpus challenging the sufficiency of the evidence to

support his special circumstance finding. However, in early 2019, shortly after SB 1437

went into effect, he filed a section 1170.95 petition to vacate his murder conviction. The

People filed an opposition, arguing SB 1437 is unconstitutional and, in any event, Jones

was not entitled to relief because in finding the special circumstance true, the jury had

4
found he was a major participant in the robbery who acted with reckless indifference to

human life.

The court held a status conference on the petition. The prosecutor maintained that

the special circumstance finding was reason enough to deny the petition. Jones’s original

trial attorney appeared on his behalf and asked for a four-month continuance. The court

reviewed its files and verified that the instruction given at Jones’s trial on the special

circumstance allegation had required the jury to find he was a “major participant” in the

robbery who acted with “reckless indifference to human life.” The court didn’t rule on

the continuance request but concluded the special circumstance rendered Jones ineligible

for relief as a matter of law and denied the petition.

II

ANALYSIS

Jones argues the trial court erred by not granting the request for a continuance to

give his counsel an opportunity to file a reply brief. If allowed to file such a brief, he

argues, he would be able to demonstrate a prima facie case for relief under section

1170.95. Specifically, he claims that his special circumstance finding is invalid under

Banks and Clark, which he describes as “changes in the law since his conviction and

sentencing.” Citing People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279,

1304, the People argue that the procedure established in section 1170.95 “is not a

‘plenary proceeding’ at which the defendant can reopen matters which have already been

adjudicated”—such as prior jury findings.

5
 We agree with the People and in doing so agree with the Gomez, Galvan, and

Allison line of decisions. As we will explain, Banks and Clark did not change the law,

and Jones’s special circumstance finding renders him ineligible for relief under section

1170.95 as a matter of law.

A. SB 1437 and Section 1170.95

SB 1437 took effect on January 1, 2019. Among other things, the legislation

amended section 189 to restrict the circumstances under which a person can be liable for

felony murder. Under the new section 189, a person who was not the actual killer can no

longer be convicted of felony murder merely for participating in an enumerated felony

that results in a death. Now, a person so accused must have aided and abetted the target

crime of murder or acted as a “major participant in the underlying felony” and with

“reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§

189, subd. (e).)

SB 1437 also added section 1170.95 to the Penal Code. That provision creates a

procedure for offenders previously convicted of felony murder to obtain the benefits of

the amendment to section 189 retroactively. These individuals may petition for relief in

the court where they were convicted. If a petitioner “makes a prima facie showing that

[they are] entitled to relief,” the trial court must issue an order to show cause and hold “a

hearing to determine whether to vacate the murder conviction.” (§ 1170.95, subds. (c) &

(d)(1).) At that hearing, the parties “may rely on the record of conviction or offer new or

additional evidence.” (§ 1170.95, subd. (d)(3).) Significantly, it is the prosecution that

6
bears the ultimate burden of proof, not the petitioner. The statute says the People must

“prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.”

(§ 1170.95, subd. (d)(3).) “If the prosecution fails to sustain its burden of proof the trial

court is required to vacate the prior conviction and resentence the petitioner on the

remaining charges.” (People v. Ramirez (2019) 41 Cal.App.5th 923, 929 (Ramirez),

citing § 1170.95, subd. (d)(3).)

As relevant here, to demonstrate entitlement to an evidentiary hearing, a petitioner

must make a prima facie showing that they could not be convicted of first or second

degree murder “because of changes to Section 188 or 189 made effective January 1,

2019.”4 (§ 1170.95, subd. (a)(3).)

B. Jones Cannot Challenge His Special Circumstance Finding Under Section
1170.95

A defendant with a special circumstance finding under section 190.2, subdivision

(d) is not eligible for relief under section 1170.95 as a matter of law. This is because a

jury has already found them to have satisfied the new definition of felony murder under

amended section 189. Although they were not the actual killer, a jury found them to have

been a major participant in the underlying felony who acted with reckless indifference to

human life. (E.g., People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419 [because

“[t]he language of the special circumstance tracks the language of Senate Bill 1437 and

4 In addition to altering the definition of felony murder, SB 1437 amended section
188 to provide that malice can no longer be imputed, thereby eliminating the natural and
probable consequences theory of murder liability. Because this case does not involve that
theory, we limit our discussion of SB 1437 and section 1170.95 to felony murder.

7
the new felony-murder statutes,” a jury’s true finding on section 190.2, subd. (d) renders

a section 1170.95 petitioner ineligible for relief].)

A petitioner with a pre-Banks/Clark finding faces the same bar to relief under

section 1170.95 as a petitioner with a post-Banks/Clark finding. This is because Banks

and Clark did not create a new rule of law, but rather “clarified” the already-existing

meaning of the phrases “major participant” and “reckless indifference to human life” for

purposes of special circumstance allegations under section 190.2, subdivision (d). (In re

Scoggins (June 25, 2020, S253155) __ Cal.App.5th __ [2020 WL 3525184, at *1]

(Scoggins); see also In re Miller (2017) 14 Cal.App.5th 960, 978 (Miller).) The

distinction between a new rule and a clarification matters for defendants, like Jones, who

were tried and convicted before Banks and Clark.

If a judicial decision announces a new rule of law, the decision “may not be

retroactive,” and if it is not, then a defendant with a final conviction cannot take

advantage of the new rule on a collateral attack on the judgment. (Woosley v. State of

California (1992) 3 Cal.4th 758, 794.) If, however, a judicial decision only clarifies

existing law, that means the decision simply “give[s] effect ‘to a statutory rule that the

courts had theretofore misconstrued.’” (Ibid.) “Where a decision clarifies the kind of

conduct proscribed by a statute, a defendant whose conviction became final before that

decision” is entitled to postconviction, habeas relief if “the undisputed facts” in the trial

record demonstrate their conduct “‘was not prohibited by the statute’ as construed in the

decision.” (Scoggins, supra, __ Cal.App.5th __ [2020 WL 3525184] at *2-3, quoting

8
People v. Mutch (1971) 4 Cal.3d 389, 396.) The rationale behind the habeas rule in this

particular context is that the trial court would have imposed the sentence of life without

parole authorized by section 190.2 “in excess of its jurisdiction,” as that statutory

provision has always meant what our Supreme Court later said it meant in Banks and

Clark. (Mutch, at p. 396.)

In a habeas proceeding challenging a pre-Banks/Clark special circumstance

finding, the petitioner bears the burden of demonstrating that the finding must be vacated

for insufficient evidence. (People v. Duvall (1995) 9 Cal.4th 464, 474.) As the court

explained in Miller, a postconviction challenge to a special circumstance finding under

Banks and Clark presents a legal question for the reviewing court. (Miller, supra, 14

Cal.App.5th at pp. 979-980.) The challenge “does not require resolution of disputed facts;

the facts are a given”—the appellate court simply determines if they are sufficient to

support the special circumstance finding under the multi-factor guidance articulated in

Banks and Clark. (Miller, at p. 980.) “When a defendant seeks habeas corpus relief, the

underlying judgment is presumed valid. . . . In a habeas corpus challenge to the

sufficiency of the evidence to support a special circumstance finding, the ‘standard of

review . . . is whether, when evidence that is reasonable, credible, and of solid value is

viewed “in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the allegation beyond a reasonable doubt.’”” (In re

Bennett (2018) 26 Cal.App.5th 1002, 1018, quoting Clark, supra, 63 Cal.4th at p. 610.)

9
 The only difference, then, between a pre-Banks/Clark special circumstance finding

and a post-Banks/Clark finding is at the level of appellate review. If the finding was

challenged on direct appeal before Banks and Clark, appellate review of the sufficiency

of the evidence to support the finding was not informed by Banks and Clark. Thus, the

proper procedure for Jones to challenge his special circumstance finding is to file a

habeas petition and demonstrate the finding is not supported by sufficient evidence under

Banks and Clark. (See Ramirez, supra, 41 Cal.App.5th at pp. 926-928, 933 [directing trial

court to grant Ramirez’s section 1170.95 petition because he had been successful in

getting his special circumstance finding vacated on habeas review].) This postconviction

procedure has been available to Jones since the issuance of Banks in 2015.

We recognize the Torres/Smith/York line of cases have concluded that petitioners

with pre-Banks/Clark findings are entitled to challenge those findings in an evidentiary

hearing under section 1170.95. We respectfully disagree with those decisions because, in

our view, they rest on a misunderstanding of the effect of Banks and Clark, and they

overlook the plain language of section 1170.95.

Torres, Smith, and York describe Banks and Clark as opinions that construed

“major participant” and “reckless indifference” “‘in a significantly different, and

narrower manner than courts had previously.’” (York, supra, 54 Cal.App.5th at p. 258,

citing Torres, supra, 46 Cal.App.5th at p. 1179 and Smith, supra, 49 Cal.App.5th at

p. 93.) Smith reasoned that it would be error to deny a section 1170.95 petition on the

basis of a pre-Banks/Clark special circumstance finding because “the factual issues that

10
the jury was asked to resolve [before Banks and Clark] are not the same factual issues our

Supreme Court has since identified as controlling.” (Smith, at p. 94.)

We agree with Allison that this view exaggerates the impact of Banks and Clark.

As Allison observed, “[t]he phrases ‘major participant’ and ‘reckless indifference to

human life’ do not have specialized definitions, but are interpreted as they are used in

common parlance. [Citations.] Jury instructions regarding the mental state required for a

felony-murder special circumstance are not defective if they do not include the Banks and

Clark factors. [Citation.] Indeed, the pattern jury instruction regarding major participation

and reckless indifference remains the same as it was before Banks and Clark.” (Allison,

supra, ___ Cal.App.5th ___ [2020 Cal.App. Lexis 925] at *11.) We also agree with

Allison that petitioners like Jones “had the same incentive” at their original trials to

attempt to minimize their involvement in the robbery and their culpability for the killings

as they would have had if their trials “had taken place after Banks and Clark.” (Allison, at

*12.) In short, Banks and Clark did not significantly narrow the definitions of “major

participant” and “reckless indifference,” and there is no basis for concluding that Jones’s

jury was asked to resolve different factual issues than a correctly instructed post-

Banks/Clark jury would be asked to resolve.

We also find the holdings and reasoning in Torres, Smith, and York to be

inconsistent with the text and structure of section 1170.95, which expressly limits

evidentiary hearings to those petitioners who can show they “could not be convicted of

first or second degree murder because of changes to Section 188 or 189 made effective

11
January 1, 2019.” (§ 1170.95, subd. (a)(3), italics added.) For Jones, that means he is

entitled to an evidentiary hearing only if he first shows he could not now be convicted of

felony murder—because of the change affected by the amendment of section 189.

(§ 1170.95, subd. (a)(3).) But Jones’s challenge is to his special circumstance finding,

which is unaffected by the Legislature’s amendment of the felony-murder rule. It’s true

the amendment built into the definition of felony murder the major-participant-acting-in-

reckless-disregard standard already found in section 190.2. (§ 189, subd. (e)(3).)

However, that standard, even as clarified by Banks and Clark, predated the 2019

amendment to section 189. Thus, Jones is not seeking relief “because of” the changes to

section 189. It’s not the amendment to section 189 that gives him a basis for challenging

his murder conviction; it’s Banks and Clark that give him a basis for challenging his

special circumstance finding. By its terms, section 1170.95 provides a way to challenge a

murder conviction based on changes to section 189, not a special circumstance finding.

(Allison, supra, ___ Cal.App.5th ___ [2020 Cal.App. Lexis 925] at pp. *16-17.)

This interpretation also finds support in the structure of the statute, specifically the

burden and standard of proof the Legislature has imposed for obtaining relief at a section

1170.95 evidentiary hearing. As noted, a petitioner who challenges a pre-Banks/Clark

finding on habeas must establish that the record contains insufficient evidence to support

a conclusion they acted as a major participant or with reckless indifference to human life.

(People v. Duvall, supra, 9 Cal.4th at p. 474; Scoggins, supra, __ Cal.App.5th __ [2020

WL 3525184] at *10.) By contrast, a petitioner who demonstrates a prima facie case for

12
relief under section 1170.95 has shifted the burden to the People to prove beyond a

reasonable doubt that they are ineligible for resentencing (that is, they still could be

convicted of murder despite the change to the felony-murder rule in section 189).

(§ 1170.95, subds. (a) & (d).) Jones’s position and the Torres/Smith/York line of cases

would read into section 1170.95 a new procedure allowing petitioners to ignore a special

circumstance finding—no matter how well supported in the record—as well as the

recognized method of challenging it. Such petitioners would be allowed to relitigate a

prior jury finding at an evidentiary hearing where the prosecution bears the burden of

proving the truth of the finding, beyond a reasonable doubt, a second time.

Section 1170.95 was enacted to require the prosecution to prove new elements that

were not previously necessary for a murder conviction based on accomplice liability.

Nothing in section 1170.95 indicates the Legislature intended to provide defendants who

failed to diligently seek habeas review a second and significantly easier way to challenge

their pre-Banks/Clark special circumstance findings. Indeed, nothing in section 1170.95

indicates that the provision can be used to challenge any prior jury finding. We therefore

conclude Jones’s special circumstance finding renders him ineligible for relief under

section 1170.95 as a matter of law and the trial court properly denied his petition without

an evidentiary hearing.

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 III

DISPOSITION

We affirm the order denying Jones’s petition.

CERTIFIED FOR PUBLICATION

SLOUGH
J.

I concur:

RAMIREZ
P. J.

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[People v. Jones, E072961]

MENETREZ, J., Concurring.

I concur in the majority opinion. I write separately to articulate my views on

several of the issues presented concerning recent case law and Penal Code section

1170.95 (further statutory citations are to this code).

I. Section 1170.95 and the Scope of Banks and Clark

People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63

Cal.4th 522 (Clark) clarified the meaning of the phrases “major participant” and

“reckless indifference to human life” for purposes of special circumstances allegations

under section 190.2, subdivision (d). Banks and Clark provide a nonexhaustive list of

factors that “may play a role in determining whether” a defendant was a major participant

who acted with reckless indifference, but none of the listed factors “is necessary, nor is

any one of them necessarily sufficient.” (Banks, supra, at p. 803.)

Banks and Clark did not state a new rule of law but rather clarified the already-

existing meaning of the statutory phrases “major participant” and “reckless indifference

to human life.” (In re Miller (2017) 14 Cal.App.5th 960, 978-979 (Miller).) In addition,

Banks and Clark did not expressly require that juries be instructed on those clarifications.

Accordingly, in the wake of Banks and Clark, no mandatory language was added

to the CALCRIM instructions on special circumstances under section 190.2, subdivision

(d). Optional language describing the Banks and Clark factors was added. (CALCRIM

1
No. 703.) The bench notes state that Banks “stopped short of holding that the court has a

sua sponte duty to instruct on those factors,” and Clark “did not hold that the court has a

sua sponte duty to instruct on those factors.” (Judicial Council of Cal. Crim. Jury Instns.

(2019) Bench Note to CALCRIM No. 703; see People v. Gomez (2020) 52 Cal.App.5th

1, 14, fn. 6 (Gomez).)

Even the optional language that was added to the CALCRIM instructions in light

of Banks and Clark does not require the jury to consider any additional questions or

resolve any additional issues. As to reckless indifference, the optional language states,

“When you decide whether the defendant acted with reckless indifference to human life,

consider all the evidence. No one of the following factors is necessary, nor is any one of

them necessarily enough, to determine whether the defendant acted with reckless

indifference to human life. Among the factors you may consider are,” followed by a list

of the factors identified in Clark. (CALCRIM No. 703.) The optional language

concerning major participant is identical. The only requirement imposed on the jurors is

that they consider all the evidence. Everything else is optional (the jury “may” consider

the listed factors, among others). (CALCRIM No. 703.)

Consequently, a correctly instructed post-Banks/Clark jury that found the

defendant was a major participant who acted with reckless indifference to human life will

not necessarily have received instructions that differ at all from those given to a pre-

Banks/Clark jury that made such a finding. And even if the post-Banks/Clark jury was

instructed with the new, optional language, those additional instructions merely required

2
the jury to consider all the evidence and listed some factors the jury may consider. The

issues resolved and questions answered by juries before and after Banks and Clark will be

exactly the same.

As a result, I agree with the majority opinion that the only necessary difference

between a pre-Banks/Clark special circumstance finding and a post-Banks/Clark finding

is at the level of appellate review: If the finding was challenged on direct appeal before

Banks and Clark, then appellate review of the sufficiency of the evidence to support the

finding was not guided by Banks and Clark. Similarly, it is also possible that a defendant

appealing before Banks and Clark did not challenge the sufficiency of the evidence

because then-existing case law did not provide a basis for such a challenge, but the same

defendant might now have a colorable appellate argument in light of Banks and Clark.

I also agree with the majority opinion that several recent cases involving section

1170.95 petitions filed by defendants with pre-Banks/Clark special circumstance findings

appear to be based on a misunderstanding of the impact of Banks and Clark. People v.

Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020, S262835 (Smith),

determined that a section 1170.95 petition cannot be denied on the basis of a special

circumstance finding from 1994 (long before Banks and Clark) because “the factual

issues that the jury was asked to resolve in 1994 are not the same factual issues our

Supreme Court has since identified as controlling,” and “[i]t would be inappropriate to

‘treat[] [the 1994] findings as if they resolved key disputed facts’ when the jury did not

have the same questions before them.” (Smith, supra, at pp. 93-94.)

3
 Smith’s basis for those statements is not clear, but all of them appear to be

incorrect. A correctly instructed pre-Banks/Clark jury was “asked to resolve” exactly

“the same factual issues,” ‘“resolved”’ the same ‘“key disputed facts,”’ and had “the

same questions before them” as a correctly instructed post-Banks/Clark jury. (Smith,

supra, 49 Cal.App.5th 93.) Again, the only necessary difference between a pre-

Banks/Clark finding and a post-Banks/Clark finding is at the level of appellate review.

The same misunderstanding of the impact of Banks and Clark appears in both

People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011

(Torres), and People v. York (2020) 54 Cal.App.5th 250, 258 (York). Torres concluded

that it was error for the trial court to treat a pre-Banks/Clark finding as if it “resolved key

disputed facts.” (Torres, supra, at p. 1180.) York likewise reasoned that “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.” (York, supra, at p. 258.) Similarly, York observed that a defendant with a

pre-Banks/Clark special circumstance finding should not be treated differently from a

defendant with no special circumstance finding at all, because “[a] jury has not

determined whether the defendant was a ‘major participant’ who acted with ‘reckless

indifference’ under correctly articulated standards in either case.” (York, at p. 258.) That

is, under York a defendant who was found before Banks and Clark to be a major

participant who acted with reckless indifference to human life should be treated (for

purposes of section 1170.95) as if the finding did not exist.

4
 For the reasons already given, all of those statements appear to be incorrect. There

is no basis to conclude that a pre-Banks/Clark jury resolved different factual issues,

answered different questions, or applied different standards from a post-Banks/Clark jury.

There is consequently no basis for York’s reasoning that, for purposes of section 1170.95,

a defendant who was found before Banks and Clark to be a major participant who acted

with reckless indifference to human life should be treated the same as a defendant with

no such finding at all.

A proper understanding of the impact of Banks and Clark also has implications for

the preclusive effect of special circumstance findings. Smith, Torres, and York all

conclude that a pre-Banks/Clark finding should not be treated as preclusive (at least for

purposes of section 1170.95), because the jury did not resolve “the same factual issues

our Supreme Court has since identified as controlling.” (York, supra, 54 Cal.App.5th at

p. 258; see also Smith, supra, 49 Cal.App.5th at p. 93 [pre-Banks/Clark finding “[d]oes

[n]ot [p]reclude [e]ligibility” for relief under section 1170.95 because “the factual issues

that the jury was asked to resolve . . . are not the same factual issues our Supreme Court

has since identified as controlling”]; Torres, supra, 46 Cal.App.5th at p. 1180 [pre-

Banks/Clark finding does not “preclude [the petitioner] from relief as a matter of law”

because it is error to treat such findings “as if they resolved key disputed facts”]; York, at

p. 262 [citing Smith and Torres for the proposition that a pre-Banks/Clark finding “does

not preclude relief under section 1170.95 as a matter of law”].)

5
 Again, there appears to be no basis for that line of reasoning. A pre-Banks/Clark

jury resolved the same factual issues beyond a reasonable doubt that a post-Banks/Clark

jury resolved beyond a reasonable doubt—the mandatory instructions did not change, and

the only requirement imposed by the new, optional instructions is to consider all the

evidence. Consequently, there is nothing inherently defective or suspect about a pre-

Banks/Clark finding that the defendant was a major participant who acted with reckless

indifference to human life. The only difference is that if the judgment became final

before Banks and Clark, then the jury’s findings have not been subjected to appellate

review under Banks and Clark. But that should not diminish the preclusive effect of the

findings. Jury findings in final judgments are ordinarily preclusive unless and until they

are overturned by collateral attack, regardless of whether they were subjected to appellate

review.

For all of these reasons, there does not appear to be a sound doctrinal basis for

treating the preclusive effect of a pre-Banks/Clark special circumstance finding

differently from the preclusive effect of a post-Banks/Clark finding.

II. Prior Jury Findings, Section 1170.95’s Requirements for Relief, and Harmless Error

Gomez and People v. Galvan (2020) 52 Cal.App.5th 1134 (Galvan) held that a

petition under section 1170.95 is not a proper procedural vehicle for challenging a murder

conviction by attacking a prior special circumstance finding. There is a split of authority

on the issue, but I agree with the majority opinion that Gomez and Galvan are correct.

6
 In Galvan, a jury had found the petitioner was a major participant who acted with

reckless indifference to human life. (Galvan, supra, 52 Cal.App.5th at p. 1139.) But the

petitioner argued that because the finding preceded Banks and Clark, it did not bar relief

under section 1170.95. (Galvan, at p. 1141.) Galvan rejected the argument because

section 1170.95 provides relief only for petitioners who “could not be convicted of first

or second degree murder because of changes to Section[s] 188 or 189” made by Senate

Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437). (§ 1170.95, subd. (a)(3).) The

court reasoned as follows: “Although 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, at p. 1142.)

Thus, because the petitioner’s challenge to his murder conviction was based on his

Banks/Clark challenge to his special circumstance finding, he did not meet the statutory

requirement that he could not be convicted of murder because of Senate Bill 1437’s

changes to sections 188 and 189.

York disagreed with Galvan’s analysis. York explained that “[w]hat 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 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

7
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.

[Citation.] It took the changes wrought by Senate Bill 1437 to permit the challenge to the

murder conviction itself.” (York, supra, 54 Cal.App.5th at p. 261.) But York also

included a footnote expressly reserving the question of whether a post-Banks/Clark

special circumstance finding would be preclusive for purposes of section 1170.95. (York,

at p. 258, fn. 5.)

I believe York’s analysis is unsound for the reasons given in People v. Allison

(Oct. 2, 2020, No. B300575) __ Cal.App.5th __ [2020 Cal.App. Lexis 925] (Allison). As

Allison explains, “notwithstanding York’s cautious footnote, the consequence of York’s

analysis is that no prior jury findings would ever preclude relief under section 1170.95.

No matter how conclusively the prior findings establish the defendant’s liability for

murder under amended sections 188 and 189, the defendant would always be able to

make the same argument endorsed in York: What permits the defendant to challenge his

murder conviction based on the contention that the prior findings were wrong are the

changes made to sections 188 and 189, and that is all that subdivision (a)(3) of section

1170.95 requires. Thus, even if the jury found that the defendant was the actual killer or

acted with intent to kill or otherwise acted with malice, relief under section 1170.95

might still be available—none of those findings was required for murder liability before

Senate Bill No. 1437 (because a defendant who lacked malice and was not the actual

8
killer could still have been convicted on a felony murder or natural and probable

consequences theory). As a result, the petitioner could contend, under York, that he or

she was not the actual killer or did not act with malice, and therefore could not be

convicted of murder because of the changes Senate Bill No. 1437 made to sections 188

and 189. Thus, every convicted murderer who could make a prima facie showing

(whatever that might be) that the prior findings were factually incorrect would be entitled

to a bench trial de novo on those findings.

“We do not believe it is reasonable to interpret section 1170.95 as allowing for

such challenges, namely, challenges based on attacks on prior factual findings. Nothing

in the language of section 1170.95 suggests it was intended to provide redress for

allegedly erroneous prior fact-finding. In particular, subdivision (a)(3) of section 1170.95

says nothing about erroneous prior findings or the possibility of proving contrary facts if

given a second chance. Rather, it requires that the petitioner could not be convicted of

murder because of the changes to sections 188 and 189, not because a prior fact finder

got the facts wrong. The purpose of section 1170.95 is to give defendants the benefit of

amended sections 188 and 189 with respect to issues not previously determined, not to

provide a do-over on factual disputes that have already been resolved.

“For these reasons, we disagree with York and believe that [People v.] Verdugo

[(2020)] 44 Cal.App.5th 320, review granted March 18, 2020, S260493, correctly

describes the role of prior factual findings in analysis of a petition under section 1170.95.

According to Verdugo, relief under section 1170.95 is barred if a prior finding shows the

9
petitioner ‘was convicted on a ground that remains valid notwithstanding Senate Bill No.

1437’s amendments to sections 188 and 189.’ (Verdugo, supra, 44 Cal.App.5th at p.

330.) Verdugo’s interpretation is faithful to the language of subdivision (a)(3) of section

1170.95: If the prior 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, at pp. *16-17.)

Subdivision (d) of section 1170.95, which provides for a hearing at which the

parties can introduce new evidence and the prosecution bears the burden of proof beyond

a reasonable doubt, does not suggest a contrary conclusion. Senate Bill 1437’s changes

to sections 188 and 189 created new requirements for murder liability—there are now

facts that are necessary for murder liability that previously were not necessary. As a

result, there may be cases in which the dispositive factual issues have not previously been

resolved. (Smith, Torres, and York assume that all pre-Banks/Clark special circumstances

cases fall into this category; as previously explained, that is incorrect.) For example, a

defendant may have been convicted of murder on a natural and probable consequences

theory with no express finding of malice, or on a felony murder theory with no express

finding that the defendant was the actual killer or acted with intent to kill or was a major

participant in the underlying felony who acted with reckless indifference to human life.

In those situations (and assuming all statutory requirements have been met), subdivision

(d) of section 1170.95 provides for a hearing to address any newly necessary facts that

10
have not previously been found. But nothing in the statute suggests that the purpose of

subdivision (d) of section 1170.95 is to open up factual issues that have previously been

determined. Facts that have already been found are a given. Again, as Allison explained,

“[t]he purpose of section 1170.95 is to give defendants the benefit of amended sections

188 and 189” against the backdrop of any facts that have already been found, not to give

defendants a “do-over on factual disputes that have already been resolved.” (Allison,

supra, 2020 Cal.App. Lexis at p. *17.)

For all of the foregoing reasons, I agree with the majority opinion that Galvan and

Gomez are correct: Section 1170.95 is not a proper procedural vehicle for challenging a

murder conviction by attacking a prior factual finding.

I further agree with the majority opinion that one possible source of York’s

missteps is its failure to attend carefully to the terms of the statute. The second sentence

of the opinion states that section 1170.95 and Senate Bill 1437 “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.” (York, supra, 54 Cal.App.5th at pp. 253-254.) Section

1170.95 does not so provide. The statute provides for vacatur of the murder conviction

only if the petitioner could not be convicted of murder because of Senate Bill 1437’s

changes to sections 188 and 189. Thus, where York said “was not the actual killer”

11
(York, at p. 253), it should have said “could not be found to have been the actual killer,”

and so forth.

York relied on Torres and Smith, both of which are problematic for similar

reasons. Both Torres and Smith focused on whether the jury’s pre-Banks/Clark special

circumstance finding is preclusive. (Torres, supra, 46 Cal.App.5th at pp. 1178-1180;

Smith, supra, 49 Cal.App.5th at pp. 93-94.) But neither case addressed the question of

whether the petitioner made any showing that he met the requirements of section

1170.95, namely, that he could not be convicted of murder because of Senate Bill 1437’s

changes to sections 188 and 189.

For example, Torres concluded that reversal was required because there was “a

possibility that [the petitioner] was punished for conduct that is not prohibited [under

current law].” (Torres, supra, 46 Cal.App.5th at p. 1180, italics added.) But section

1170.95 expressly requires far more than a mere possibility that the petitioner is innocent

under current law or might be acquitted by a jury under current law. It requires that the

petitioner could not be convicted—that is, there is no possibility of conviction—under

current law.

Torres did not analyze whether the petitioner made a prima facie showing in the

trial court that he could not be convicted under current law. Nor did Torres analyze

whether the petitioner demonstrated on appeal that it was reasonably probable that he

would be able to make such a showing on remand. If the petitioner did not do so, then he

failed to show prejudice, so reversal was not warranted. (People v. Watson (1956) 46

12
Cal.2d 818, 836-837.) Indeed, Torres did not even answer the question whether it was

possible that the petitioner could make such a showing on remand.

Smith is similar. Smith reversed because it was “conceivable that [the petitioner]

may be able to provide evidence not presented at trial that would demonstrate either that

he was not a major participant in the robbery or did not act with reckless indifference to

human life.” (Smith, supra, 49 Cal.App.5th at p. 95, italics added.) Again, the analysis

applies the wrong standard, both for the trial court’s determination of eligibility or

entitlement to relief and for the appellate court’s determination of prejudice. The

petitioner’s burden in the trial court is not merely to show that he was not a major

participant who acted with reckless indifference but rather to show that he could not be

found to be a major participant who acted with reckless indifference (and hence could not

be convicted of murder). And in order to find any error by the trial court prejudicial, the

appellate court must find not merely that it is conceivable that the appellant could have

obtained a better result absent the error but rather that it is reasonably probable that the

appellant would obtain a better result. Smith contains no analysis applying the proper

standards. That is, it did not analyze whether the appellant showed on appeal that it was

reasonably probable that on remand he would be able to show that he could not be

convicted of murder because of Senate Bill 1437’s changes to section 188 and 189.

There is one additional aspect of York’s criticism of Galvan that is puzzling. The

majority opinion in York asserts that Galvan mischaracterizes prior case law as holding

that “a defendant may challenge a felony murder special circumstance by means of a

13
petition under section 1170.95.” (Galvan, supra, 52 Cal.App.5th at p. 1141; see York,

supra, 54 Cal.App.5th at p. 260.) York explains that the prior cases hold no such thing

and that such a holding would be erroneous, because “section 1170.95 permits a

petitioner to challenge a murder conviction,” not a special circumstance finding (although

the statute provides that if the challenge to the conviction succeeds, then any associated

enhancement and special circumstance findings must be vacated as well). (York, at

p. 260.) The York concurrence emphasizes the same point, expressing agreement with

the majority’s “astute observation that a section 1170.95 petition is not a challenge to a

special 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.” (York, at pp. 263-264 (conc. opn. of Baker, J.).)

It is not clear what point the York opinions are making here, or what error in

Galvan they purport to identify. On the one hand, Galvan expressly agreed with the

proposition that section 1170.95 is a mechanism for challenging a murder conviction.

(Galvan, supra, 52 Cal.App.5th at p. 1139 [section 1170.95 “established a procedure for

vacating murder convictions”].) Nothing in Galvan suggests otherwise or suggests that

the Galvan court thought that prior case law was to the contrary. On the other hand, the

petitioners in Galvan, York, Torres, and Smith all sought under section 1170.95 to

challenge their murder convictions by attacking their prior special circumstance findings.

York expressly recognized this: The petitioner’s challenge to the murder conviction was

“based on the contention that [the petitioner] was not a major participant in the

14
underlying felony who acted with reckless indifference to human life” despite a prior jury

finding to the contrary. (York, supra, 54 Cal.App.5th at p. 261.) Under Smith and Torres

(and York), section 1170.95 is a proper procedural vehicle for such a challenge to the

conviction. Under Galvan and Gomez, it is not.

Thus, it appears to be universally agreed that section 1170.95 is for challenging

murder convictions and that, in the relevant cases, the petitioners are challenging their

murder convictions via section 1170.95 by attacking their prior special circumstance

findings. York does not explain why either of those uncontroversial observations is of

any consequence for the dispute between Smith, Torres, and York, on the one hand, and

Gomez and Galvan, on the other.

III. Section 1170.95 and Due Process

Torres suggested that failing to reverse the denial of the appellant’s petition would

implicate due process: Because the pre-Banks/Clark jury’s special circumstance finding

did not actually “resolve[] key disputed facts,” it was possible that the petitioner “was

punished for conduct that is not prohibited by section 190.2 as currently understood, in

violation of [the petitioner’s] constitutional right to due process.” (Torres, supra, 46

Cal.App.5th at p. 1180.) Torres cites Miller as support for its reasoning and then adds

that “[i]t would be unjust to permit a court to deny a petitioner relief on the basis of facts

that the jury did not necessarily find true, and which may not be sufficiently supported by

the record.” (Torres, at p. 1180.)

15
 The court’s reasoning is based on an incorrect understanding of the effect of Banks

and Clark, as previously discussed—a pre-Banks/Clark jury did resolve key disputed

facts and did necessarily find true the same facts that a post-Banks/Clark jury necessarily

found true. But in addition, Torres misapplies Miller’s due process analysis.

In Miller, the court granted a habeas petition seeking to vacate a pre-Banks/Clark

special circumstance finding on the ground that it was not supported by substantial

evidence. (Miller, supra, 14 Cal.App.5th at pp. 974-977.) The Attorney General argued,

however, that the petitioner’s substantial evidence challenge was barred because it had

already been rejected on a pre-Banks/Clark direct appeal. (Id. at p. 977.) The court

disagreed, because (1) “[f]or purposes of legal analysis, Banks and Clark did not create

new law; they simply stated what section 190.2, subdivision (d) has always meant,” so

Banks and Clark apply to pre-Banks/Clark special circumstance findings, and (2) the

rejection of the defendant’s substantial evidence argument on direct appeal did not bar

consideration of the sufficiency of the evidence on the post-Banks/Clark habeas petition,

because the direct appeal preceded Banks and Clark and hence was not informed by the

Supreme Court’s clarification of section 190.2’s meaning. (Miller, at pp. 977-979.)

I agree with all of that reasoning from Miller, but Torres misapplied it. Miller

concluded that the special circumstance finding was not supported by substantial

evidence under Banks and Clark, so it would violate due process to punish the defendant

on the basis of that finding. But in Torres, the court did not conclude that the special

circumstance finding was not supported by substantial evidence under Banks and Clark.

16
It did not even determine that it was possible or conceivable that the finding was not

supported by substantial evidence under Banks and Clark. Consequently, the analysis in

Torres fails to show even the possibility of a due process violation under Miller.

For all of the foregoing reasons, I agree with the majority that we should follow

Gomez and Galvan, not Smith, Torres, and York. There is no basis to disregard pre-

Banks/Clark special circumstance findings, which should have the same preclusive effect

as post-Banks/Clark findings (subject to post-Banks/Clark substantial evidence review on

habeas, as in Miller). Section 1170.95 is not a proper procedural vehicle for challenging

a murder conviction by attacking a prior factual finding, because section 1170.95

provides relief only to petitioners who could not be convicted of murder because of

Senate Bill 1437’s changes to sections 188 and 189. And denying a section 1170.95

petition on the basis of a pre-Banks/Clark special circumstance finding does not implicate

due process. If the petitioner believes the finding is not supported by substantial

evidence under Banks and Clark, then the petitioner’s remedy for that error is habeas

corpus, not section 1170.95.
MENETREZ
J.

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