Filed 12/18/20 P. v. Strong CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091162
Plaintiff and Respondent, (Super. Ct. No. 11F06729)
v.
CHRISTOPHER STRONG,
Defendant and Appellant.
Defendant Christopher Strong appeals from the trial court’s order dismissing his
petition for resentencing brought pursuant to Penal Code section 1170.95.1 Defendant
argues the trial court erred when it determined that his convictions for first degree murder
with robbery, burglary, and multiple-murder special circumstances precluded his
eligibility for relief. Noting that the trial court had jurisdiction to consider the order
1 Undesignated statutory references are to the Penal Code.
1
despite its announcement to the contrary, we construe the order dismissing the petition as
an order denying the petition, and we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s Convictions
In 2014 a jury found defendant guilty of two counts of first degree murder (§ 187)
and found true three special circumstance allegations of robbery murder (§ 190.2, subd.
(a)(17)), burglary murder (§ 190.2, subd. (a)(17)), and multiple murder (§ 190.2, sub.
(a)(3)).
In its charge to the jury at the conclusion of the parties’ presentations, the trial
court included CALCRIM No. 703 (Special Circumstances: Intent Requirement for
Accomplice After June 5, 1990—Felony Murder (Pen. Code, § 190.2(d))), which told the
jury that if it found defendant was not the actual killer, in order to prove the special
circumstances true: “[T]the People must prove either that the defendant intended to kill,
or the People must prove all of the following:
“1. The defendant’s participation in the crime began before or during the killing;
“2. The defendant was a major participant in the crime;
“AND
“3. When the defendant participated in the crime, he/she acted with reckless
indifference to human life.”2
The convictions resulted from an attempted home invasion robbery of a drug
dealer by defendant and his codefendant, Donald Ortez-Lucero. During the robbery,
Ortez-Lucero shot and killed a man and his infant son.3 (People v. Ortez-Lucero et al.
2 The record does not include the jury instructions given at trial, but defendant
acknowledges the jury was instructed with CALCRIM No. 703.
3 The Attorney General requests we take judicial notice of our opinion from the direct
appeal of defendant’s case. Defendant does not object to the request. We will grant the
2
(Dec. 27, 2017, C076606) [nonpub. opn.] slip. opn. at pp. 2-3.) We affirmed the
judgment on appeal. (Id. at pp. *2, *32.)
Legal Background
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January
1, 2019, was enacted “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).) The legislation accomplished this by
amending sections 188 and 189 and adding section 1170.95 to the Penal Code.
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.” (§ 188, subd. (a)(3).) Section 189, subdivision (e)
now limits the circumstances under which a person may be convicted of felony murder:
“A participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) [defining first degree murder] in which a death occurs is liable for murder
only if one of the following is proven: [¶] (1) The person was the actual killer. [¶]
(2) The person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (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.”
request and take judicial notice of the opinion. (Evid. Code, §§ 459, subd. (a) [“The
reviewing court may take judicial notice of any matter specified in Section 452”], 452,
subd. (d) [permitting a court to take judicial notice of records of “any court of this
state”].)
3
Senate Bill No. 1437 also added section 1170.95, which allows those “convicted
of felony murder or murder under a natural and probable consequences theory [to] file a
petition with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (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) The
petitioner was convicted of first degree or second degree murder following a trial . . . .
[¶] (3) The petitioner could not be convicted of first or second degree murder because of
changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
As relevant here, once a complete petition is filed, “[t]he court shall review the
petition and determine if the petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section. If the petitioner has requested counsel, the
court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve
a response within 60 days of service of the petition and the petitioner may file and serve a
reply within 30 days after the prosecutor response is served. . . . If the petitioner makes a
prima facie showing that he or she is entitled to relief, the court shall issue an order to
show cause.” (§ 1170.95, subd. (c).)
Defendant’s Petition
In 2019 defendant, through counsel, filed a form petition for resentencing pursuant
to section 1170.95. He declared that a complaint, information, or indictment had been
filed against him that allowed the prosecution to proceed under a theory of felony murder
or murder under the natural and probable consequences doctrine, he was convicted of
first degree or second degree murder under the felony-murder rule or the natural and
probable consequences doctrine, and he could not now be convicted of first or second
degree murder based on the recent changes to sections 188 and 189. Counsel attached
briefing detailing defendant’s sentence and requesting resentencing. As relevant here, the
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People responded that defendant was ineligible for relief because the special
circumstance, found true, described that defendant was the actual killer, intended to kill,
or was a major participant in the underlying felony who acted with reckless indifference
to human life.
The trial court dismissed the petition in a written order. The court found in
relevant part that defendant “fail[ed] to show in any of the pleadings filed by himself or
by his counsel, that he is eligible for relief under Penal Code § 1170.95. In Case
No. 11F06729, he was convicted of two counts of Penal Code § 187 first degree murder,
with three special circumstances -- Penal Code § 190.2(a)(17) robbery-murder; Penal
Code § 190.2(a)(17) burglary-murder; and Penal Code § 190.2(a)(3) multiple murder --
unanimously found true by a jury beyond a reasonable doubt with regard to each of the
two murders. In so finding, the jury necessarily found that defendant Strong either was
the actual killer, intended to kill, or was a major participant who acted in the robbery and
burglary with reckless indifference to human life, as the jury was specifically instructed
with CALCRIM no. 703 with regard to all three of the special circumstances. Defendant
Strong does not show otherwise. [⁋] In an opinion issued on December 27, 2017, the
Third District Court of Appeal affirmed the judgment on appeal. Defendant Strong did
not raise any claim under People v. Banks (2015) 61 Cal.4th 788 or People v. Clark
(2016) 63 Cal.4th 522, even though those opinions had long been issued during the
pendency of defendant Strong’s appeal. The Third District issued its remittitur on the
appeal on April 12, 2018, rendering the judgment against defendant Strong final in Case
No. 11F06729. [⁋] This court’s underlying file for Case No. 11F06729 does not indicate
that there has been any subsequent post-conviction proceeding in which any or all of the
special circumstances have been vacated or defendant Strong resentenced in any manner
for any reason.”
The order concluded: “As Penal Code §§ 187 and 189 still provide for first degree
murder based on robbery-murder and burglary-murder, when the trier of fact has found
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beyond a reasonable doubt that the defendant either was the actual killer, intended to kill,
or was a major participant who acted in the robbery with reckless indifference to human
life, and as a unanimous jury in Case No. 11F06729 necessarily found that to be so
beyond a reasonable doubt with regard to each of the two first degree murders, and as it
does not appear that there has been any post-conviction proceeding in which it was
ordered that defendant Strong’s special circumstance findings be vacated in Case
No. 11F06729, defendant Strong is ineligible for the relief he seeks. Under these
circumstances, it is simply beyond a reasonable doubt that defendant Strong would have
been convicted of first degree murder on both counts even if the SB 1437 amendments to
Penal Code §§ 188 and 189 had been effective at the time of his trial.” The court then
dismissed the petition, which we construe as a denial thereof.
DISCUSSION
Defendant argues the trial court erred when it determined the special circumstance
findings from his 2014 trial conclusively established that he was a “major participant who
acted in the robbery and burglary with reckless indifference to human life.” He posits
that because the definitions of “major participant” and “reckless indifference to human
life” were clarified by our Supreme Court after the jury made its findings, in People v.
Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, the special
circumstance findings from his trial are potentially invalid. Relying on People v. Torres
(2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011 (Torres), defendant
asserts Banks and Clark require further litigation of his case to determine his eligibility
for relief.
The Attorney General responds that Torres was wrongly decided, and although
Banks and Clark enabled defendants to file new habeas petitions attacking their special
circumstance convictions, “section 1170.95 does not provide defendants with a
generalized collateral attack on their convictions.” Rather, a defendant must first seek
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habeas relief on a special circumstance conviction and, if successful, can then proceed
through the section 1170.95 process.4
After the close of briefing in this case, the Fourth Appellate District, Division One
in People v. Gomez (2020) 52 Cal.App.5th 1, review granted October 14, 2020, S264033
(Gomez), and the Second Appellate District, Division One in People v. Galvan (2020)
52 Cal.App.5th 1134, review granted October 14, 2020, S264284 (Galvan), issued
opinions supportive of the Attorney General’s position. (See also People v. Murillo
(2020) 54 Cal.App.5th 160, review granted Nov. 18, 2020, S267978.) More recently,
Division Five of the Second Appellate District, in People v. York (2020) 54 Cal.App.5th
250, review granted Nov. 18, 2020, S264954 (York), followed Torres and criticized
Galvan. (See also People v. Smith (2020) 49 Cal.App.5th 85, review granted July 26,
2020 S262835.) The Second Appellate District, Division One then issued People v.
Allison (2020) 55 Cal.App.5th 449 (Allison) in direct response to York. (Allison at p.
449.) Most recently, the Fourth Appellate District, Division Two, followed Allison in
People v. Jones (2020) 56 Cal.App.5th 474, as did the Second Appellate District,
Division Two, in People v. Nunez (2020) 57 Cal.App.5th 78.
Although certain of those cases also concern the appropriate stage in the section
1170.95 proceedings for appointment of counsel, an issue that is now pending before our
Supreme Court in People v. Lewis (2020) 43 Cal.App.5th 1128, review granted March
18, 2020, S260598, this case does not. Here, petitioner was represented by counsel at all
times. The issue here is solely whether defendant was able to challenge the continued
viability of the jury’s special circumstance findings in a petition brought pursuant to
4 As the trial court noted, defendant did not challenge the special circumstance findings
on direct appeal. At the time the trial court issued its order, defendant had filed a petition
for habeas corpus in federal court. That case is currently stayed under Rhines v. Weber
(2005) 544 U.S. 269, pending the completion of this appeal. (Strong v. Foss (E.D.Cal.
Mar. 19, 2020, No. 2:19-cv-01268 KJM GGH P) 2020 U.S.Dist.LEXIS 48864, at *1-2.)
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section 1170.95. We find Galvan and Allison more persuasive than the cases to the
contrary.
Our Supreme Court’s decisions in Banks and Clark clarified “what it means for an
aiding and abetting defendant to be a ‘major participant’ in an underlying felony and to
act with ‘reckless indifference to human life,’ [and] construed section 190.2, subdivision
(d) in a significantly different, and narrower manner than courts had previously construed
the statute.” (Torres, supra, 46 Cal.App.5th at p. 1179; see also Galvan, supra,
52 Cal.App.5th at p. 1141.) In Galvan the appellate court acknowledged these changes to
section 190.2, subdivision (d) and considered whether a defendant could relitigate his
special circumstance conviction using section 1170.95. (Galvan, supra, 52 Cal.App.5th
at p. 1141.) There, as here, the defendant was convicted of first degree murder with a
special circumstance finding under section 190.2, subdivision (a)(17) made before Banks
and Clark were decided. (Galvan, at pp. 1138-1139.) On appeal, the defendant, like
defendant here, argued that Banks and Clark had altered the meaning of “major
participant” and “reckless indifference to human life” such that he was entitled to
reconsideration of the conviction under section 1170.95. (Id. at p. 1137.)
The Galvan court first considered the relevant statutory language: “In order to be
eligible for resentencing, a defendant must show that he or she ‘could not be convicted of
first or second degree murder because of changes to Section[s] 188 or 189 made
effective’ as part of Senate Bill No. 1437.” (Galvan, supra, 52 Cal.App.5th at p. 1142,
italics added; § 1170.95, subd. (a)(3) (italics added.) The court concluded that as to
Galvan the requirement was not met, because “[a]lthough [the defendant] 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. Just as was the
case before that law went into effect, the special circumstance applies to defendants who
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were major participants in an underlying felony and acted with reckless indifference to
human life. If [the defendant] is entitled to relief based on Banks and Clark, the avenue
for such relief is not section 1170.95, but a petition for writ of habeas corpus.” (Galvan,
at p. 1142.)
The Galvan court also observed that permitting defendants to relitigate a special
circumstance finding by way of a section 1170.95 petition would “give [them] an
enormous advantage over other similarly situated defendants based solely on the date of
[their] conviction.” (Galvan, supra, 52 Cal.App.5th at p. 1142.) “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 would need only to show that substantial evidence supported
that finding.” (Id. at pp. 1142-1143.) Defendants convicted before Banks and Clark, on
the other hand, could challenge the special circumstance findings under section 1170.95,
which would require the prosecution “to prove the special circumstance beyond a
reasonable doubt.” (Galvan, at p. 1143.) “[N]othing in the language of Senate Bill
No. 1437 suggests that the Legislature intended unequal treatment of such similarly
situated defendants.” (Ibid.)
Defendant urges us to follow Torres, supra, 46 Cal.App.5th 1168, which reversed
the denial of a section 1170.95 petition based on the changes made by Banks and Clark.
In Torres, as in this case and Galvan, the defendant was convicted of first degree murder
with a special circumstance finding under section 190.2, subdivision (a)(17). (Torres, at
p. 1172.) The Torres court concluded the summary denial of the defendant’s petition
based on the pre-Banks/Clark special circumstance finding raised the “possibility that
[the defendant] was punished for conduct that is not prohibited by section 190.2 as
currently understood, in violation of [the defendant’s] constitutional right to due process”
and, as relevant here, reversed and remanded. (Id. at p. 1180.)
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Torres had already sought habeas relief, claiming the special circumstance finding
was no longer valid; his petition for relief had been denied. (Torres, supra,
46 Cal.App.5th at p. 1180, fn. 4.) The appellate court considered whether that habeas
petition precluded the section 1170.95 petition, but did not opine on whether habeas relief
was more appropriate in light of section 1170.95’s statutory language.
In York, supra, 54 Cal.App.5th 250, the appellate court did consider whether a
habeas petition was a preferable route to relief. (Id. at pp. 258-259.) The York court
reviewed the language of section 1170.95, subdivision (d)(2), which provides a
streamlined path to relief under section 1170.95 if a defendant has “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.” Because the statute does not include a counterpart
to this subdivision accounting for a situation where there is a prior finding that a
petitioner did act with reckless indifference to human life and was a major participant in
the underlying felony, the court reasoned such a finding should not preclude a petitioner
from relief. (York, at pp. 260-261.) The court concluded Galvan was incorrect when it
concluded the defendant there could only avail himself of relief “because of” Banks and
Clark, rather than Senate Bill No. 1437. Absent Senate Bill No. 1437, a successful Banks
and Clark challenge would invalidate only the special circumstance finding, whereas a
successful section 1170.95 petition would invalidate a murder conviction. (York, at
p. 261.)
The Allison court addressed York after ordering briefing on the precise issue here:
“Whether the trial court properly relied on [the defendant’s] admission of felony-murder
special circumstances (§ 190.2, subd. (a)(17)) as the sole basis for finding that he had not
made a prima facie showing that he was entitled to relief.” (Allison, supra, 55
Cal.App.5th at p. 456.) The Allison court first emphasized that section 1170.95 requires a
prima facie showing by petitioner that he “ ‘could not be convicted of . . . murder because
of changes to Section 188 or 189 made’ in Senate Bill No. 1437.” (Allison, at p. 456.) It
10
noted that the requirements for a finding of felony murder under the newly amended
version of section 189 were identical to the requirements of the felony-murder special
circumstance that had been in effect at the time of the challenged murder conviction (in
the Allison’s case, 1997; in the instant case, 2014). (Allison, at p. 456.) Thus, the special
circumstance finding showed “as a matter of law that Allison could still be convicted of
felony murder even under the newly amended version of section 189” and precluded a
prima facie showing of eligibility. (Id. at p. 457)
The Allison court disagreed with the argument to the contrary embraced by York,
that because no court had examined whether there was a factual basis for the special
circumstance finding since Banks and Clark were decided, the finding was insufficient to
show ineligibility as a matter of law. (Allison, supra, 55 Cal.App.5th at p. 457.) We
agree with the Allison court that Banks and Clark did not change the law, but merely
clarified the same principles that existed earlier. (See ibid; see also In re Miller (2017)
14 Cal.App.5th 960, 978.) As the Allison court noted, the pattern jury instructions remain
the same; Banks and Clark merely resulted in the addition of optional language thereto.
(Allison, supra, 55 Cal.App.5th at p. 457.)
We further observe that the language in section 1170.95, subdivision (d)(2)
anticipates, rather than precludes, the possibility of habeas relief before a section 1170.95
petition because one way to obtain a “prior finding” that meets the subdivision’s
requirements is via habeas. (In re Ramirez (2019) 32 Cal.App.5th 384, 406.) If a
defendant has successfully obtained such relief, the trial court is mandated to vacate the
petition, providing the petitioner access to section 1170.95 relief once they have obtained
habeas relief. Nothing precludes relief under section 1170.95; the language simply
presumes a petitioner will pursue alternative relief first.
We find the Allison court’s responses to York persuasive, and the analyses of
Allison and Galvan, considered together, convince us that the appropriate avenue for
defendant’s challenge to the special circumstance allegations is through a petition of
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habeas corpus, rather than the section 1170.95 petition filed in this case. (In re Miller,
supra, 14 Cal.App.5th at p. 979 [permitting habeas challenge to special circumstance
conviction].) The trial court did not err when it denied defendant’s petition.
DISPOSITION
The trial court’s order dismissing defendant’s petition under section 1170.95 is
construed as a denial thereof and, as such, is affirmed.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Murray, J.
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