People v. Davalos CA2/2

Filed 12/18/20 P. v. Davalos CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B304384

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA110432)
v.

JAIME DAVALOS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County. Leslie A. Swain, Judge. Affirmed.
Edward H. Schulman, 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, Charles S. Lee and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
 This appeal from the denial of a petition for resentencing
under Penal Code1 section 1170.95 presents two issues we
recently addressed in People v. Nunez (2020) 57 Cal.App.5th 78
(Nunez): (1) May the superior court rely solely on the jury’s
felony-murder special circumstance finding to deny the petition
for failure to make a prima facie showing that the petitioner falls
within the provisions of section 1170.95? and (2) May a
defendant challenge a first degree murder conviction by attacking
the validity of the jury’s felony-murder special circumstance
finding under the California Supreme Court’s decisions in People
v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark) in a petition for relief under section
1170.95?
We resolve these issues in accord with our decision in
Nunez, and hold that the superior court may deny a section
1170.95 petition after the prima facie review on the ground that a
defendant convicted of murder with a felony-murder special
circumstance finding (§ 190.2, subd. (a)(17)) is not, as a matter of
law, eligible for resentencing under section 1170.95. (Nunez,
supra, 57 Cal.App.5th at pp. 83, 90–92; see also People v. Allison
(2020) 55 Cal.App.5th 449, 457 (Allison); People v. Murillo (2020)
54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978
(Murillo); People v. Galvan (2020) 52 Cal.App.5th 1134, 1140–
1141, review granted Oct. 14, 2020, S264284 (Galvan); People v.
Gomez (2020) 52 Cal.App.5th 1, 16–17, review granted Oct.14,
2020, S264033 (Gomez).) As in Nunez, we also conclude that a
section 1170.95 petition is not the proper vehicle for challenging a
murder conviction by attacking, under our Supreme Court’s

1 Undesignated statutory references are to the Penal Code.

2
decisions in Banks and Clark, the jury’s prior factual finding that
the defendant was a major participant who acted with reckless
indifference to human life, and that such claims may only be
raised in a petition for habeas corpus. (See Nunez, at pp. 83, 95–
97; Allison, supra, 55 Cal.App.5th at pp. 458, 461; Gomez, at
pp. 16–17, rev.gr.; Galvan, at p. 1142, rev.gr.; Murillo, at p. 168,
rev.gr.)
FACTUAL BACKGROUND2
On February 8, 1995, Pedro Arcos was living with his
girlfriend and her family in an apartment at the Maravilla
housing project in East Los Angeles. Arcos had just started a
construction job, and his truck with his tools was parked in the
parking lot on the side of the building. Arcos’s brother-in-law,
Osvaldo Venegas, came home late that night and saw Julio
Duenas, appellant, and Francisco Garcia drinking beer in the
parking lot near Arcos’s truck. All three men wore hooded black
jackets.
Everyone in the residence was asleep when Venegas came
home. After he had gone inside, Venegas heard a noise and
looked outside to see Duenas and appellant dragging a milk crate
from the back yard walkway to a neighboring house. The crate
contained Arcos’s tools from his truck. Venegas alerted his sister
and Arcos, who both went outside. Arcos spoke to the three men
and then returned to the house, angry because his truck had been
broken into and his tools taken. Venegas pointed out where the

2 The factual background is drawn from the trial transcript
as well as the statement of facts in the prior opinion in the direct
appeal in this case. (People v. Davalos and Garcia (Aug. 6, 1998,
B109077) [nonpub. opn.] (Davalos I).)

3
tools were, and members of the family retrieved the tools and
brought them inside.
Venegas then saw appellant or Duenas walk towards a
dumpster in the parking lot and bend down to get something.
The man looked up to see if anyone was watching and then bent
down again, looking three or four times. The other two men stood
nearby, within a couple of feet.
Shortly thereafter, there was a loud knock at the front
door. The mother went to the door, and heard a voice outside
cursing and demanding that the “ ‘ass hole’ ” come out. The
mother responded, “ ‘Leave us alone. He does not live here.’ ” At
that, the door was kicked open, hitting the mother and knocking
her to the floor. The mother saw that the first person to enter
had a gun in his hand, but she could not identify him.
According to Venegas, Duenas entered the house first, but
Venegas did not see Duenas with a gun. Duenas and Arcos began
to fight, and Duenas dragged the struggling Arcos into the
mother’s bedroom. While Duenas and Arcos were fighting in the
bedroom, appellant came through the front door and hit Venegas
in the face with a closed fist. Appellant continued on into the
house. Venegas grabbed his mother and they ran out to the back
yard with the rest of the family.
Venegas was about to jump over the patio fence to get help
when Garcia, who was standing outside, pointed a gun at
Venegas and said, “ ‘Don’t do it.’ ” “ ‘You are going nowhere. Get
your ass down.’ ” Venegas went to the ground. The rest of his
family was huddled together on the ground, crying.
While Garcia was holding the family at gunpoint outside,
Venegas could hear Arcos struggling and the sounds of slugging
and banging on furniture in the bedroom. He heard two or three

4
voices; one of them said in Spanish, “ ‘Give me your money. All I
want [sic] was the tools to get some money.’ ” Arcos responded,
“ ‘I don’t have any money. Take whatever you want. Leave us all
alone.’ ”
At some point, Garcia started walking towards the front of
the house. As soon as Garcia left the back yard, Venegas jumped
over the fence, broke into his neighbor’s house, and called 911.
While he was doing that, he heard two gunshots and his sister
yelled, “ ‘They shot him. They shot him.’ ” The assailants could
be heard leaving the house through the front door.
Arcos was found dead in the bedroom lying in a pool of
blood with his head in a bucket. He had sustained three gunshot
wounds, one to the head behind the right ear, one to his neck on a
trajectory to the brain, and another to his right shoulder.
PROCEDURAL BACKGROUND
Appellant and co-defendant Garcia were tried and
convicted in 1996 of the first degree murder of Arcos. (§§ 187,
subd. (a).) The jury made special circumstance findings that the
murder was committed while appellant was engaged in the
commission of a burglary and an attempted robbery. (§ 190.2,
subd. (a)(17).) Both defendants were also convicted of first degree
residential burglary (§ 459), attempted first degree robbery
(§§ 211, 664), and second degree burglary of a vehicle (§ 459),
with the finding as to all counts that a principal was armed with
a firearm (§ 12022, subd. (a)(1)). Appellant was sentenced to a
state prison term of life without the possibility of parole for the
murder conviction plus one year for the firearm enhancement,
and a concurrent two-year term for the second degree burglary.
This court affirmed appellant’s judgment of conviction on direct
appeal. (Davalos I, supra, B109077.)

5
 On September 30, 2018, the Governor signed Senate Bill
No. 1437 (2017–2018 Reg. Sess.) in order to “amend the felony
murder rule and the natural and probable consequences doctrine
as it relates to murder to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Effective January 1,
2019, Senate Bill No. 1437 also added section 1170.95, creating a
procedure whereby a person whose murder conviction is final, but
who could not now be convicted based on Senate Bill No. 1437’s
amendments to sections 188 and 189, can petition to have the
murder conviction vacated and to be resentenced. (Stats. 2018,
ch. 1015, § 4.)
On February 5, 2019, appellant filed a petition for writ of
habeas corpus in which he alleged the evidence was insufficient
to support the jury’s special circumstance findings under Banks
and Clark, and sought resentencing pursuant to section 1170.95.
The superior court appointed counsel, and deemed the habeas
petition a petition for resentencing under section 1170.95.
Following briefing by the parties and a hearing to determine
whether appellant had made a prima facie showing that he was
entitled to relief, the superior court issued a written order
denying appellant’s petition on the ground that the felony murder
special circumstance finding rendered appellant ineligible for
relief as a matter of law. Addressing appellant’s arguments
under Banks and Clark, the court also denied the petition on the
ground that appellant was a major participant who acted with
reckless indifference to human life. This appeal followed.

6
 DISCUSSION
The Superior Court May Deny a Section 1170.95
Petition in the Prima Facie Stage of Review on the
Ground that a Petitioner Convicted of Murder with a
Felony Murder Special Circumstance Finding Is Not, as
a Matter of Law, Eligible for Resentencing Under
Section 1170.95
In order to obtain relief from his felony murder conviction
under section 1170.95, a petitioner must make a prima facie
showing that he “could not be convicted of first or second degree
murder because of changes to Section 188 or 189” made by Senate
Bill No. 1437. (§ 1170.95, subd. (a)(3), italics added; Nunez,
supra, 57 Cal.App.5th at p. 90; Allison, supra, 55 Cal.App.5th at
p. 457.) As the superior court determined here, appellant cannot,
as a matter of law, make the requisite prima facie showing based
on the jury’s felony murder special circumstance findings in his
case.
A. Given the jury’s special-circumstance findings, the
superior court correctly determined that appellant could
still be convicted under the amended statute.
By adding subdivision (e) to section 189, Senate Bill
No. 1437 effectively made the crime of felony murder subject to
the same elements of proof required for a special-circumstance
finding under section 190.2, subdivision (d).3 (People v. Superior

3 Subdivision (d) of section 190.2 remains the same today
as in 1996 when appellant was convicted (with the exception of
the bracketed word “felony,” omitted from the current version):
“[E]very person, not the actual killer, who, with reckless
indifference to human life and as a major participant, aids, abets,

7
Court (Ferraro) (2020) 51 Cal.App.5th 896, 907 [“ ‘the standard
under section 189, subdivision (e)(3) for holding a defendant
liable for felony murder is [now] the same as the standard for
finding a special circumstance under section 190.2[, subdivision]
(d), as the former provision expressly incorporates the latter’ ”];
In re Taylor (2019) 34 Cal.App.5th 543, 561.) Specifically, to be
convicted of first degree murder under section 189 as amended, a
participant in one of the felonies enumerated in subdivision (a)
must have been the actual killer, or a direct aider and abettor
who acted with the intent to kill, or “a major participant in the
underlying felony [who] acted with reckless indifference to
human life, as described in subdivision (d) of Section 190.2.”
(§ 189, subd. (e).)
Here, appellant’s jury was instructed that to find the
special circumstance true (that is, murder in the commission of
burglary or attempted robbery), it must be satisfied beyond a
reasonable doubt that appellant was the actual killer (with or
without the intent to kill), or he aided and abetted the murder
with the intent to kill, or, “with reckless indifference to human life
and as a major participant,” he aided and abetted the commission
of the burglary or attempted robbery which resulted in the

counsels, commands, induces, solicits, requests, or assists in the
commission of a felony enumerated in paragraph (17) of
subdivision (a) which [felony] 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.”

8
victim’s death. (Italics added.) The jury was further instructed
that “[a] defendant acts with reckless indifference to human life
when that defendant knows or is aware that [his] acts involve a
grave risk of death to an innocent human being.” The jury found
the special circumstance true as to both underlying felonies
beyond a reasonable doubt, and thereby necessarily made the
factual findings that appellant participated in the burglary and
attempted robbery with the intent to kill Arcos, or he was a major
participant in the underlying felonies who acted with reckless
indifference to Arcos’s life. Either of these findings would allow
appellant to be convicted of first degree murder notwithstanding
Senate Bill No. 1437’s changes to section 189.
Because the jury’s special circumstance finding shows as a
matter of law that appellant could still be convicted of felony
murder under section 189 as amended, the superior court
correctly concluded that he cannot make a prima facie showing of
eligibility for resentencing under section 1170.95 and properly
denied relief. (Allison, supra, 55 Cal.App.5th at pp. 461–462 [“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”]; Nunez, supra, 57 Cal.App.5th at p. 95.)
B. Appellant may not challenge the jury’s factual
findings under Banks and Clark in the context of a section
1170.95 resentencing petition.
Appellant seeks to avoid the preclusive effect of the special
circumstance finding to his section 1170.95 claim by challenging
the validity of the jury’s special circumstance factual findings
under our Supreme Court’s decisions in Banks and Clark.

9
Asserting that “[t]he jurisprudential role of Banks and Clark in
assessing [appellant’s] claims within the framework of section
1170.95 cannot be ignored,” appellant argues the evidence is
insufficient as a matter of law to support the jury’s finding that
he acted with reckless indifference in light of the new criteria
established in those decisions.4 We disagree.
Following an examination of two United States Supreme
Court cases (Enmund v. Florida (1982) 458 U.S. 782; Tison v.
Arizona (1987) 481 U.S. 137), Banks explained that to determine
whether the defendant acted with reckless indifference, courts
must “look to whether a defendant has ‘ “knowingly engag[ed] in
criminal activities known to carry a grave risk of death.” ’ ”
(Banks, supra, 61 Cal.4th at p. 801.) Specifically, “[t]he
defendant must be aware of and willingly involved in the violent
manner in which the particular offense is committed,
demonstrating reckless indifference to the significant risk of
death his or her actions create.” (Ibid.) In Clark, the court put it
this way: “ ‘reckless indifference’ . . . encompasses a willingness
to kill (or to assist another in killing) to achieve a distinct aim,
even if the defendant does not specifically desire that death as
the outcome of his actions.” (Clark, supra, 63 Cal.4th at p. 617.)
To assist appellate review of a jury’s reckless indifference
finding, Clark set out a series of considerations relevant to
determining whether a defendant had acted with reckless

4 Appellant does not dispute that the evidence was
sufficient to support the finding that he was a “ ‘major
participant’ ” in the underlying offenses, even under Banks and
Clark.

10
indifference to human life.5 (Clark, supra, 63 Cal.4th at pp. 618–
622.) But “[j]ust as [the court] said of the factors concerning
major participant status in Banks, ‘[n]o one of these
considerations is necessary, nor is any one of them necessarily
sufficient’ ” to establish whether a defendant acted with reckless
indifference to human life. (Clark, at p. 618, quoting Banks,
supra, 61 Cal.4th at p. 803.)
Most importantly, Banks and Clark did not create new law.
Rather, the high court in those cases “simply stated what section
190.2, subdivision (d) has always meant.” (In re Miller (2017) 14
Cal.App.5th 960, 979 & 978 (Miller) [Banks and Clark “merely
clarified the ‘major participant’ and ‘reckless indifference to
human life’ principles that existed when defendant’s conviction
became final”]; Nunez, supra, 57 Cal.App.5th at p. 92; Allison,
supra, 55 Cal.App.5th at p. 458.) Indeed, our Supreme Court has
not required any new jury instruction on the clarifications, and
no mandatory language or material changes have been made to
the CALJIC or CALCRIM special circumstance instructions since
Banks and Clark were decided. (Compare CALJIC No. 8.80.1
(1996 rev.) (6th ed. 1996) with CALJIC No. 8.80.1 (Fall 2015 rev.)

5 “The only necessary difference between a pre-Banks and
Clark felony-murder special-circumstance finding and one
returned after Banks and Clark arises 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.” (Nunez, supra, 57 Cal.App.5th at p. 93, fn. 7; People v.
Price (2017) 8 Cal.App.5th 409, 450–451 (Price) [Banks and Clark
decisions govern judicial review for sufficiency of the evidence
rather than the facts or elements a jury was required to find].)

11
(Sept. 2020 ed.); see also Nunez, at p. 92; Gomez, supra, 52
Cal.5th at p. 14, fn. 6, rev.gr. [CALCRIM No. 703 before Banks
and Clark]; CALCRIM No. 703 (2020 ed.).) Rather, while both
CALJIC No. 8.80.1 and CALCRIM No. 703 now include optional
language drawn from Banks and Clark regarding the factors a
jury may consider, neither Banks nor Clark held that the trial
court has a sua sponte duty to instruct on those factors. (Price,
supra, 8 Cal.App.5th at pp. 450–451 [jury instructions that omit
the Banks and Clark factors are not defective]; Allison, at
pp. 458–459]; Bench Notes to CALCRIM No. 703 (2020 ed.)
p. 452.)
In short, as we observed in Nunez, “the felony-murder
special-circumstance instructions given post-Banks and Clark do
not necessarily differ at all from pre-Banks and Clark felony-
murder special-circumstance instructions⎯the factors, issues,
and questions the post- and pre-Banks and Clark juries consider
to make the [major participant/reckless indifference] finding are
exactly the same. Accordingly, whether a jury made a post- or
pre-Banks and Clark [major participant/reckless indifference]
finding, that finding establishes as a matter of law the
defendant’s ineligibility for relief under section 1170.95 because
he was found either to have participated in the specified felony
with the intent to kill, or he was a major participant who acted
with reckless indifference to human life and could still be
convicted of murder notwithstanding the changes to section 189.”
(Nunez, supra, 57 Cal.App.5th at p. 93.)
In this regard, we reiterate our disagreement with the
decisions in People v. Torres (2020) 46 Cal.App.5th 1168, review
granted July 7, 2020, S262011 (Torres), People v. Smith (2020) 49
Cal.App.5th 85, review granted July 22, 2020, S262835 (Smith),

12
and People v. York (2020) 54 Cal.App.5th 250, review granted
November 18, 2020, S264954 (York) because all three of these
cases misinterpret the scope and effect of Banks and Clark.
According to these courts, because “the factual issues that
the jury was asked to resolve [before the Banks and Clark
decisions] are not the same factual issues our Supreme Court has
since identified as controlling,” such findings should not be
treated “as if they resolved key disputed facts.” (Torres, supra, 46
Cal.App.5th at p. 1180, rev.gr.; Smith, supra, 49 Cal.App.5th at
p. 93, rev.gr.) York went a step further, holding that for purposes
of section 1170.95, a pre-Banks and Clark jury finding that the
defendant acted with reckless indifference to human life as a
major participant should be treated as if that finding simply did
not exist. (York, supra, 54 Cal.App.5th at p. 258, rev.gr.; Nunez,
supra, 57 Cal.App.5th at p. 94.) However, contrary to these
decisions’ holdings, we find “no basis to conclude as a general
matter that a pre-Banks and Clark jury was instructed
differently than a post-Banks and Clark jury, or resolved
different factual issues, answered different questions, or applied
different standards. The mandatory instructions did not change,
and the pre-Banks and Clark jury necessarily resolved the same
factual issues beyond a reasonable doubt that a post-Banks and
Clark jury would necessarily resolve beyond a reasonable doubt.”
(Nunez, supra, 57 Cal.App.5th at p. 94.)
Finally, as we noted in Nunez, “jury findings in a final
judgment are generally considered to be valid and binding unless
and until they are overturned by collateral attack, regardless of
whether they were subjected to appellate review. Nothing in
Banks or Clark supports the automatic invalidation or disregard

13
of such findings by a properly instructed jury.” (Nunez, supra, 57
Cal.App.5th at p. 94.)
C. The sole avenue for challenging the evidentiary
support for the jury’s finding that appellant acted with
reckless indifference to human life lies in a habeas
petition.
Appellant contends that the evidence here is insufficient to
support a felony murder special circumstance finding under
Banks and Clark, and thus asserts that such evidence cannot
“sustain a first degree felony-murder conviction based on aider
abettor culpability absent the aider/abettor’s intent-to-kill.”
According to appellant, because the prosecution failed to
establish beyond a reasonable doubt that appellant was ineligible
for resentencing, the matter must be remanded to the trial court
which must vacate the murder conviction and resentence
appellant on the remaining counts of conviction pursuant to
section 1170.95, subdivision (d)(2) and (3). We disagree.
The flaw in appellant’s argument is that it presumes the
interchangeability of a petition for habeas corpus and one for
resentencing relief under section 1170.95 to challenge a felony
murder conviction. But Senate Bill No. 1437 contains no
indication in its text or history that the Legislature intended to
permit defendants to challenge their murder convictions by
attacking prior findings of fact. Indeed, the Legislature made
plain that its purpose in enacting section 1170.95 was to give
defendants the benefit of the amendments to sections 188 and
189 in the absence of a factual basis for a murder conviction in
light of the statutory revisions. As the court in Allison observed,
“subdivision (a)(3) of section 1170.95 says nothing about
erroneous prior findings or the possibility of proving contrary

14
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.” (Allison, supra, 55 Cal.App.5th at p. 461.)
Accordingly, as we held in Nunez, the sole avenue of relief
for defendants whose pre-Banks and Clark special circumstance
findings cannot withstand post-Banks and Clark scrutiny is by
way of a petition for habeas corpus in which the petitioner would
properly bear the burden of proof.6 (Nunez, supra, 57
Cal.App.5th at pp. 95–96; Galvan, supra, 52 Cal.App.5th at
p. 1142, rev.gr. [“If [appellant] is entitled to relief based on Banks
and Clark, the avenue for such relief is not section 1170.95, but a

6 As Galvan noted, the guidance given by our Supreme
Court in Banks and Clark amounted to such a significant
clarification of the law that “courts have allowed defendants to
challenge the validity of pre-Banks and Clark special
circumstance findings via habeas corpus, making an exception to
the rule that ordinarily bars a defendant from challenging the
sufficiency of the evidence in a habeas petition.” (Galvan, supra,
52 Cal.App.5th at p. 1141, rev.gr.; see In re Scoggins (2020) 9
Cal.5th 667, 673 [“Where a decision clarifies the kind of conduct
proscribed by a statute, a defendant whose conviction became
final before that decision ‘is entitled to post-conviction relief upon
a showing that his [or her] conduct was not prohibited by the
statute’ as construed in the decision”].) Thus, unlike its
preclusive effect with respect to his petition under section
1170.95, appellant’s direct challenge to the sufficiency of the
evidence in support of the jury’s special circumstance findings in
Davalos I would not bar a habeas petition because this court’s
rejection of the substantial evidence challenge was made without
the benefit of the Banks and Clark clarifications.

15
petition for writ of habeas corpus”]; Murillo, supra, 54
Cal.App.5th at p. 168, rev.gr.)
Gomez recognized that permitting a defendant with a pre-
Banks and Clark felony murder conviction to challenge the
special circumstance finding under section 1170.95 would
unfairly shift the burden of proof normally applicable to Banks
and Clark habeas claims from the petitioner to the People. The
court explained:
“In an evidentiary hearing on a section 1170.95 petition to
determine whether there is sufficient evidence to support her
murder conviction on a felony-murder or natural and probable
consequences theory, the People would bear the burden of proof
beyond a reasonable doubt. (§ 1170.95, subd. (d)(3).) To make its
true findings on the special circumstance allegations against [the
defendant], the jury was required to find that [the defendant]
either acted with the intent to kill, or that she was a major
participant who acted with reckless indifference to human life in
the robbery and kidnapping of [the victim]. The People should
not be required to prove beyond a reasonable doubt, a second
time, that [the defendant] satisfied those requirements for the
special circumstance findings. Considering the different burdens
of proof in a habeas corpus proceeding and a proceeding under
section 1170.95, we conclude that a petition for writ of habeas
corpus is the appropriate vehicle for [the defendant] to challenge
her special circumstance findings. If [the defendant] were to
succeed in challenging the special circumstance findings in a
habeas corpus proceeding, she would then be in a position to
successfully petition under section 1170.95 to vacate her murder
conviction.” (Gomez, supra, 52 Cal.App.5th at p. 17, rev.gr.;
Nunez, supra, 57 Cal.App.5th at p. 96; see also Galvan, supra, 52

16
Cal.App.5th at pp. 1142–1143, rev.gr. [expressing concern over
the disparate treatment of defendants based solely on the dates
of their convictions].)
This is precisely the procedural course of People v. Ramirez
(2019) 41 Cal.App.5th 923 (Ramirez). In 2003 Ramirez had been
convicted of first degree murder with a special circumstance
finding under section 190.2, subdivision (a)(17) that he was an
aider and abettor and major participant in a robbery who had
acted with reckless indifference to human life. He was sentenced
to life without the possibility of parole, and in his direct appeal
this court held substantial evidence supported the special
circumstance finding. The California Supreme Court denied
review. (Id. at p. 926.) Ramirez filed a petition for habeas corpus
in this court in 2017, challenging the evidentiary support for the
major participant and reckless indifference findings under Banks
and Clark. (Id. at pp. 926–927.) We granted the petition, struck
the special-circumstance finding, and remanded the matter for
resentencing. (Id. at p. 927.) On remand, Ramirez was
sentenced to a term of 25 years to life for the murder conviction.
(Ibid.)
Following the enactment of Senate Bill No. 1437, Ramirez
filed a petition under section 1170.95 to modify his first degree
murder sentence. The trial court denied the petition on the
ground that Ramirez was not entitled to relief as a matter of law,
reasoning that “ ‘[t]he appellate opinion affirming the petitioner’s
conviction and sentence reflects that the petitioner was not the
actual killer and was convicted of murder on a theory of being a
direct perpetrator and with the intent to kill or a major
participant and with reckless indifference to human life. The
jury also found the special circumstances under Penal Code

17
section 190.2(a)(17) to be true, which the opinion affirmed.’ ” (Id.
at p. 928.) On appeal from the denial of the petition, we reversed
pursuant to the mandatory language of section 1170.95,
subdivision (d)(2),7 holding that in light of our prior habeas
determination, “[i]t is beyond dispute that this court found that
the defendant was not shown to have been a major participant in
the underlying felony, or to have acted with reckless indifference
to human life. [Citation.] Under these circumstances, the trial
court was required by section 1170.95, subdivision (d)(2) to vacate
the conviction and resentence defendant on the remaining
counts.” (Id. at p. 933.)
Here, unlike the defendant in Ramirez, appellant did not
first pursue his habeas claim under Banks and Clark, but filed a
hybrid petition in which he attempted to shoehorn his Banks and
Clark claim into a petition for resentencing under section
1170.95. But to allow appellant to maintain his evidentiary
challenge to the special- circumstance findings in the context of
section 1170.95 rather than by way of habeas would not only do
violence to the legislative focus in enacting Senate Bill No. 1437,
but it would unjustifiably relieve appellant of the burden of
proving his claim under Banks and Clark.

7 Subdivision (d)(2) of section 1170.95 provides in relevant
part: “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.”

18
 D. Appellant is not entitled to another jury trial to
determine whether he was a major participant in a felony
who acted with reckless indifference to human life.
Appellant contends that because the Legislature is
presumed to have incorporated the Banks and Clark
“redefinitions” of “ ‘major participant’ ” and “ ‘reckless
indifference to human life’ ” into its amendments to sections 188
and 189 (see People v. Marinelli (2014) 225 Cal.App.4th 1, 6
[“ ‘The Legislature is presumed to have knowledge of existing
judicial decisions when it enacts and amends legislation’ ”]),
Senate Bill No. 1437 effectively created a “new theory of
culpability which was never decided by [appellant’s] jury.”
Appellant thus maintains he is now constitutionally entitled to a
new jury determination by proof beyond a reasonable doubt
whether he acted with reckless indifference to human life as a
major participant in the burglary and/or attempted robbery. The
argument lacks merit.
First, as we have discussed, our Supreme Court did not
create new law, but merely clarified the law as it had existed all
along. (Miller, supra, 14 Cal.App.5th at p. 979.) The elements
for a special circumstance conviction under section 190.2,
subdivision (d) in place at the time of appellant’s conviction
remained the same after Banks and Clark, and were unchanged
by the enactment of Senate Bill No. 1437. In the wake of Banks
and Clark juries were not asked to make any additional or
different factual findings in order to find the special circumstance
true, nor did the Supreme Court mandate a different jury
instruction than the one given to appellant’s jury. (See Price,
supra, 8 Cal.App.5th at pp. 450–451.) Thus, there is no “new

19
theory of culpability” upon which the superior court based its
denial of the resentencing petition.
Second, although the Legislature was undoubtedly aware of
the Banks and Clark decisions when it enacted Senate Bill
No. 1437, it made no distinction between felony murder
convictions with special circumstance findings incurred before or
after those decisions in its amendments to sections 188 and 189.
In structuring section 1170.95 relief in this manner, the
Legislature clearly understood that a defendant stands validly
convicted of a felony-murder special circumstance until it is
actually overturned under Banks and Clark. Moreover, Senate
Bill No. 1437 contains not even the slightest hint that the
Legislature intended to give defendants with pre-Banks and
Clark special circumstances findings another jury trial in which
to challenge allegedly deficient prior fact-findings. Rather,
section 1170.95, subdivision (d)(3) sets forth the procedure for the
hearing after the petitioner has made a prima facie showing he or
she is entitled to relief and the trial court has issued an order to
show cause. As our colleagues in Division Seven recently held,
that procedure calls for the superior court⎯not a jury⎯acting as
independent factfinder to “determine whether the evidence
establishes a petitioner would be guilty of murder under
amended sections 188 and 189 and is thus ineligible for
resentencing.” (People v. Rodriguez (Dec. 7, 2020, B303099) __
Cal.App.5th __ [p. 27].)
Finally, appellant’s Sixth Amendment claim that he is
entitled to a jury trial on the “new theory of culpability” fails
because the retroactive relief afforded by Senate Bill No. 1437
represents an act of lenity by the Legislature that does not
implicate appellant’s Sixth Amendment rights. (See People v.

20
Anthony (2019) 32 Cal.App.5th 1102, 1156–1157 [rejecting Sixth
Amendment right to jury in section 1170.95 proceedings]; see also
People v. Perez (2018) 4 Cal.5th 1055, 1063–1064 (Perez) [a trial
court may make determinations of fact based on new evidence
regarding a petitioner’s eligibility for resentencing under Prop. 36
because retroactive application of the benefits from the
proposition are a legislative act of lenity that does not implicate
6th Amend. rights].)
“Under the Sixth Amendment, any fact other than the fact
of a prior conviction that increases the penalty for a crime beyond
the statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt.” (Perez, supra, 4 Cal.5th at p. 1063.)
However, a section 1170.95 proceeding is a collateral sentence
modification proceeding unrelated to the criminal trial process.
It is not a plenary resentencing hearing, and presents no
possibility of an increase to a petitioner’s sentence. (Dillon v.
United States (2010) 560 U.S. 817, 828 [rejecting Sixth
Amendment right to jury in limited resentencing proceeding
based on downward modification of applicable sentencing
guidelines].)

21
 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

LUI, P. J.
I concur:

CHAVEZ, J.

22
People v. Davalos, B304384

ASHMANN-GERST, J., Concurring in the judgment.

I agree with the opinion of the court that the trial court
properly denied defendant and appellant Jaime Davalos’s
petition for resentencing (Pen. Code, § 1170.95).1 The jury’s
special circumstance finding was sufficient to allow defendant to
be convicted of first degree murder notwithstanding the changes
made to section 189. Thus, the trial court properly concluded
that he could not make a prima facie showing of eligibility for
resentencing under section 1170.95 and properly denied him
relief. I also agree that this finding stands under People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63
Cal.4th 522 (Clark).
In light of this conclusion, I see no need at this point to
weigh in on whether defendant can use section 1170.95 to
challenge his murder conviction by attacking a prior factual
finding pursuant to Banks, supra, 61 Cal.4th 788 and Clark,
supra, 63 Cal.4th 522 or if he must proceed by writ of habeas
corpus. (See People v. Nunez (2020) 57 Cal.App.5th 78, 97–99
(conc. opn. Ashmann-Gerst, J.).)

__________________________, J.
ASHMANN-GERST

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