People v. Wilson CA2/7

Filed 1/26/21 P. v. Wilson CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN

THE PEOPLE, B304453

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA057146-01)
v.

FRED WILSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Jesse I. Rodriguez, Judge. Affirmed.
Mark D. Lenenberg, 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 Idan Ivri, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________
 Fred Wilson, convicted in 2004 on two counts of first degree
murder, appeals the postjudgment order summarily denying his
petition for resentencing under Penal Code section 1170.95.1
Although we agree with Wilson that the superior court erred in
relying on the true finding on firearm enhancement allegations to
conclude he was the actual killer of both victims and that a
felony-murder special-circumstance finding does not necessarily
preclude relief, these errors were harmless because Wilson was
ineligible for resentencing as a matter of law.
FACTUAL AND PROCEDURAL BACKGROUND
1. Wilson’s Murder Convictions
As detailed in our nonpublished opinion affirming Wilson’s
convictions on direct appeal (People v. Wilson (Nov. 16, 2005,
B178497), Wilson and David Jonathon Harris walked into a store
owned by Kyung Sun Kim (Sun) in late September 2001. Sun
worked at the store with his brother Kyung Min Kim (Min) and
another employee. After unsuccessfully bargaining over the price
of two bottles of alcohol, Wilson and Harris left the store. Wilson
and Harris returned to the store about 20 minutes later. Both
men were armed. Harris forcibly entered the cash register area
and shot Sun twice.
Sun’s wife, Jenny, who worked at an adjoining market, saw
Harris walking with a gun toward Barclay Street. After going
back into the store to push the alarm button, she returned to the
street and saw Wilson carrying a gun and a jar filled with money
taken from the liquor store. When Jenny went back inside to
push the alarm button again, she heard gun shots. Jenny ran to

1 Statutory references are to this code.

2
the alley and discovered Min lying on the ground. Both Sun and
Min died from multiple gunshot wounds.
Wilson was convicted following a jury trial on two counts of
first degree murder (§§ 187, subd. (a), 189, subd. (a); counts 1-2),
three counts of second degree robbery (§ 211; counts 3-5) and
one count of possession of a firearm by a felon (former § 12021,
subd. (a)(1); count 6). As to counts 1 and 2, the jury found true
the special-circumstance allegations that the murders had been
committed during the commission of a robbery (§ 190.2,
subd. (a)(17)(A)) and that there were multiple murders (§ 190.2,
subd. (a)(3)). As to counts 1 to 4, the jury also found true that
Wilson had personally and intentionally discharged a firearm
proximately causing death (§ 12022.53, subds. (b), (c) & (d)), and
as to count 5 that Wilson had personally and intentionally used
and discharged a firearm (§ 12022.53, subds. (b) & (c)).
In a bifurcated bench trial the trial court found Wilson had
previously been convicted of robbery, a serious or violent felony,
and had served one prior prison term within the meaning of
section 667.5, subdivision (b). The trial court sentenced Wilson to
an aggregate state prison term of two life terms without parole,
plus 81 years to life. We affirmed the conviction on appeal but
modified Wilson’s sentence to strike the one-year prior-prison
term enhancement imposed under section 667.5. (People v.
Wilson, supra, B178497.)
2. Wilson’s Petition for Resentencing
On November 22, 2019 Wilson, representing himself, filed a
petition for resentencing under section 1170.95 and requested the
court appoint counsel. On January 8, 2020 the superior court,
“[b]ased on a preliminary review of the Petition,” appointed the
Alternative Public Defender to represent Wilson, and ordered the

3
District Attorney to file a response within 60 days. Wilson’s
appointed counsel appeared on behalf of Wilson the following
day, and the superior court set a hearing for February 13, 2020.
However, without receiving any additional briefing or holding
oral argument, the superior court summarily denied the petition
on January 14, 2020.
In its order denying the petition the superior court stated,
“The court has received and reviewed a petition for recall and
resentencing pursuant to [section] 1170.95. The petition is
summarily denied because the petitioner is not entitled to relief
as a matter of law, for the following reason: [¶] The petitioner
was convicted of two murders. The court file reflects that the
petitioner was the actual killer. [¶] As to both murder counts 1
and 2, the jury found the petitioner ‘[personally] and
intentionally discharged a firearm, a handgun, which
proximately caused death within the meaning of [section]
12022.53[, subsection] (D) to be true. [¶] The jurors also found
the special circumstances of Penal Code section 190.2[,
subdivision] (a)(3) to be true as to counts 1 and 2.” The superior
court explained that in making its ruling it had relied on the
court file, the jury instructions that had been given at trial, and
the completed verdict forms.
DISCUSSION
1. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019,
significantly modified the law relating to accomplice liability for
murder. (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile) [discussing Senate Bill 1437].) In its uncodified findings

4
and declarations the Legislature stated, “It is necessary 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 Legislature also declared, “Except as stated in subdivision (e)
of Section 189 of the Penal Code [relating to first degree felony
murder], a conviction for murder requires that a person act with
malice aforethought. A person’s culpability for murder must be
premised upon that person’s own actions and subjective mens
rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
The Legislature accomplished its goal by adding
subdivision (a)(3) to section 188, and subdivision (e) to
section 189. (Gentile, supra, 10 Cal.5th at pp. 842-843.) New
section 188, subdivision (a)(3), eliminates the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder by providing, “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.” (See Gentile, at p. 839.) New section 189, subdivision (e),
limits the felony-murder exception to the malice requirement,
permitting a murder conviction for a death that occurred during
the commission of certain serious felonies only when other
specified circumstances relating to the defendant’s individual
culpability have been proved.2

2 Section 189, subdivision (e), provides with respect to a
participant in the perpetration or attempted perpetration of a

5
 Senate Bill 1437 also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Gentile, supra, 10 Cal.5th at
pp. 852-853.) The petition must include a declaration by the
petitioner that he or she is eligible for relief under
section 1170.95 and a statement whether the petitioner requests
the appointment of counsel. (§ 1170.95, subd. (b)(1); see People v.
Verdugo (2020) 44 Cal.App.5th 320, 326-327 (Verdugo), review
granted Mar. 18, 2020, S260493.)
If the petition contains all required information,
section 1170.95, subdivision (c), prescribes a process for the court
to determine whether an order to show cause should issue: “The
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

felony listed in section 189, subdivision (a), in which a death
occurs—that is, as to those crimes that provide the basis for the
charge of first degree felony murder—that an individual 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.”

6
prosecutor shall file and serve a response . . . and the petitioner
may file and serve a reply. . . . 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.” (See Verdugo, supra,
44 Cal.App.5th at p. 327, review granted.)
As we held in Verdugo, supra, 44 Cal.App.5th at page 328,
review granted, this language authorizes the superior court to
proceed in two steps, “one made before any briefing to determine
whether the petitioner has made a prima facie showing he or she
falls within section 1170.95—that is, that the petitioner may be
eligible for relief—and a second after briefing by both sides to
determine whether the petitioner has made a prima facie
showing he or she is entitled to relief.” (Accord, People v. Soto
(2020) 51 Cal.App.5th 1043, 1054, review granted Sept. 23, 2020,
S263939; People v. Drayton (2020) 47 Cal.App.5th 965, 975;
People v. Torres (2020) 46 Cal.App.5th 1168, 1177, review
granted June 24, 2020, S262011; but see People v. Cooper (2020)
54 Cal.App.5th 106, 118, review granted Nov. 10, 2020, S264684
[section 1170.95, subdivision (c), contemplates only one prima
facie review before an order to show cause issues].)
Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo, supra,
44 Cal.App.5th at p. 327, review granted.) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez (2020) 58 Cal.App.5th 227, 230.)
The prosecutor and petitioner may rely on the record of
conviction or offer new or additional evidence to meet their

7
respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton, supra, 47 Cal.App.5th at p. 981;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted
Mar. 18, 2020, S260598.)
2. Wilson’s Challenge to the Superior Court’s Authority To
Conduct a Prima Facie Review of His Eligibility for
Relief Lacks Merit
Arguing a petition for resentencing under section 1170.95
is a “special proceeding” and the jurisdiction of the superior court
is “limited by the terms of the conditions of the statute under
which it is authorized,” Wilson contends the superior court may
only review the allegations in the petition for their facial validity;
if they state facts that would entitle the petitioner to relief,
Wilson asserts, the court must appoint counsel (if requested) and
hold an evidentiary hearing. Wilson contends he met that “low
threshold” requirement by “checking the appropriate boxes” on
the form petition/declaration he completed and filed3 and that the
superior court erred by “stepping outside the four corners of
appellant’s petition to conduct an unauthorized investigation” to
deny the petition.
We rejected this argument in Verdugo, supra,
44 Cal.App.5th 320, review granted.4 Verdugo held the superior

3 Wilson argues he supplemented the allegations “with
documentary evidence” showing that he was not Sun’s actual
killer, but no such evidence was attached to the form
petition/declaration filed in superior court.
4 The Supreme Court granted review in Verdugo (Mar. 18,
2020, S260493) and ordered briefing deferred pending its
disposition of People v. Lewis, supra, 43 Cal.App.5th 1128, review

8
court, after determining the petition is facially sufficient, may
examine the readily available portions of the record of conviction
to determine whether the petitioner made a prima facie showing
that he or she could not be convicted of first or second degree
murder following the amendments to sections 188 and 189 and
thus is eligible for relief under section 1170.95. (Verdugo, at pp.
329-330, 332.) If the petitioner’s ineligibility for resentencing can
be established at this stage as a matter of law by the petition
itself and the record of conviction, the petition may be summarily
denied without the appointment of counsel. (Id. at pp. 330, 332-
333; see also People v. Perez (2020) 54 Cal.App.5th 896, review
granted Dec. 9, 2020, S265254; People v. Lewis, supra,
43 Cal.App.5th at pp. 1139-1140, review granted; but see People
v. Cooper, supra, 54 Cal.App.5th 106, review granted.)
3. The Superior Court Erred in Concluding Wilson Was
Sun’s Actual Killer
Although admitting he was the actual killer of Min
(count 2), Wilson contends the superior court erred in relying on
the jury’s true finding that he had personally discharged a
firearm causing death (§ 12022.53, subd. (d))5 as alleged in

granted, in which briefing and argument are limited to the
following issues: “(1) May superior courts consider the record of
conviction in determining whether a defendant has made a prima
facie showing of eligibility for relief under Penal Code section
1170.95? (2) When does the right to appointed counsel arise
under Penal Code section 1170.95, subdivision (c)?”
5 Section 12022.53, subdivision (d), states, “Notwithstanding
any other provision of law, any person who, in the commission of
a felony specified in subdivision (a), Section 246, or
subdivision (c) or (d) of Section 26100, personally and
intentionally discharges a firearm and proximately causes great

9
connection with the murder of Sun (count 1), to establish he was
also Sun’s actual killer and, thus, ineligible for resentencing on
that count. Wilson is correct, as the Attorney General concedes.6
The evidence established that Harris, not Wilson, shot and
killed Sun. As we explained in affirming imposition of this
firearm enhancement in Wilson’s direct appeal, “as to the murder
of Sun, the section 12022.53, subdivision (d), enhancement was
properly imposed because Wilson personally discharged his
firearm proximately causing the death of Min ‘in the commission
of’ Sun’s murder. . . . The number of enhancements imposed
under section 12022.53, subdivision (d), is not limited by the
number of actual injuries inflicted by Wilson’s personal discharge
of his firearm.” (People v. Wilson, supra, B178497; see People v.
Oates (2004) 32 Cal.4th 1048, 1055-1056 [under section 12022.53,
subdivision (d), a defendant convicted of firing two shots at five
people could be sentenced to five 25-year-to-life enhancements
because the phrase “any person other than an accomplice”
includes “a person other than the victim of the qualifying felony”
who suffers death or great bodily injury].)

bodily injury, as defined in Section 12022.7, or death, to any
person other than an accomplice, shall be punished by an
additional and consecutive term of imprisonment in the state
prison for 25 years to life.”
6 The Attorney General acknowledges, “[T]his enhancement
does not always prove a defendant’s actual killer status under all
facts patterns, including here as to the murder of victim Sun.”

10
 4. Wilson May Challenge the Special Circumstance Finding
in a Section 1170.95 Petition
Notwithstanding the superior court’s error, the Attorney
General contends Wilson’s petition under section 1170.95 was
properly denied because the jury found true the robbery-murder
special-circumstance allegation with respect to Sun’s murder,
which required the jury to find that Wilson had acted with
reckless indifference to human life and as a major participant in
the robbery, making him ineligible for relief.7 Although Wilson’s
conviction occurred before the Supreme Court clarified the
requirements for the felony-murder special-circumstance
allegation in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark),8 the Attorney
General insists the jury’s finding should be given preclusive effect
in this proceeding and any challenge to the evidentiary support
for that finding must be made by petition for a writ of habeas
corpus.

7 Although the superior court did not rely on the special
circumstance finding to deny Wilson’s petition, the Attorney
General argues the order can be affirmed if the ruling was correct
on any lawful basis. (See People v. Smithey (1999) 20 Cal.4th
936, 972 [“‘“‘[A] ruling or decision, itself correct in law, will not be
disturbed on appeal merely because given for a wrong reason. If
right upon any theory of the law applicable to the case, it must be
sustained regardless of the considerations which may have
moved the trial court to its conclusion’”’”].)
8 The Supreme Court in Banks, supra, 61 Cal.4th 788
identified factors courts should consider in determining whether
a defendant was a “major participant” under section 190.2,
subdivision (d): “What role did the defendant have in planning
the criminal enterprise that led to one or more deaths? What role
did the defendant have in supplying or using lethal weapons?

11
What awareness did the defendant have of particular dangers
posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did
the defendant do after lethal force was used?” (Banks, at p. 803,
fn. omitted.)
In Banks and Clark the Court 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.) As expressed in Clark,
“‘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 the jury’s finding, Clark set
out a series of considerations relevant to determining whether a
defendant had acted with reckless indifference to human life.
(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.)
Notably, Banks and Clark did not expressly require that
juries be instructed on those clarifications. Optional language
describing the Banks/Clark factors was added to the CALCRIM
instructions, but not mandatory language. (See CALCRIM

12
 Although the Attorney General’s position has been upheld
in several court of appeal decisions, we reject it, as have other
courts of appeal, as ignoring the plain language of
section 1170.95, as well as the Legislature’s express intent in
enacting this remedial provision.
Enacted in 1990, section 190.2, subdivision (d), provides
that “every person, not the actual killer, who, with reckless
indifference to human life and as a major participant, aids, abets,
counsels, commands, induces, solicits, requests, or assists in the
commission of a felony enumerated in paragraph (17) of
subdivision (a) which results in the death of some person or
persons, and who is found guilty of murder in the first degree
therefor, shall be punished by death or imprisonment in the state
prison for life without the possibility of parole if a special
circumstance enumerated in paragraph (17) of subdivision (a) has
been found to be true under Section 190.4.” (See People v. Law
(2020) 48 Cal.App.5th 811, 822, review granted July 8, 2020,
S262490 [“[s]ection 190.2, subdivision (d) was enacted in 1990 to
bring state law into conformity with prevailing Eighth
Amendment doctrine, as set out in the United States Supreme
Court’s decision Tison v. Arizona (1987) 481 U.S. 137”].) Later,
“our Supreme Court’s opinions in Banks and Clark merely
clarified the meaning of section 190.2—Banks and Clark merely

No. 703.) Accordingly, a correctly instructed post-Banks/Clark
jury will not necessarily have received instructions that differ
from those given to a pre-Banks/Clark jury that made a major
participant/reckless indifference finding. The instructions—and
thus the factors, issues and questions the juries considered and
answered—might be exactly the same. The only necessary
difference is at the level of appellate review.

13
clarified the ‘major participant’ and ‘reckless indifference to
human life’ principles that existed when defendant’s conviction
became final.” (In re Miller (2017) 14 Cal.App.5th 960, 977-978;
accord, In re Scoggins (2020) 9 Cal.5th 667, 671; In re Ramirez
(2019) 32 Cal.App.5th 384, 407; People v. Allison (2020)
55 Cal.App.5th 449, 458.)
In People v. Galvan (2020) 52 Cal.App.5th 1134 (Galvan),
review granted October 14, 2020, S264284, the court of appeal
concluded that allowing a petition under section 1170.95 to
challenge the evidentiary support for the felony-murder special-
circumstance finding would give defendants convicted before
Banks and Clark “an enormous advantage” because “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 circumstances finding on direct appeal,
where the People would need only to show that substantial
evidence supporting that finding. . . . But where, as here, a
defendant was convicted before Banks and Clark, if the defendant
could bring a collateral challenge under section 1170.95, the
prosecution would be required to prove the special circumstance
beyond a reasonable doubt [and] nothing in the language of
Senate Bill No. 1437 suggests that the Legislature intended
unequal treatment of such similarly situated defendants.”
(Galvan, at pp. 1142-1143; accord, People v. Murillo (2020)
54 Cal.App.5th 160, 168, review granted Nov. 18, 2020, S264978
[“[b]y requiring a defendant to seek relief via habeas corpus, we
avoid creating a disparity in which similarly situated defendants’
cases are evaluated under different standards based solely on the
date of their convictions”]; People v. Gomez (2020) 52 Cal.App.5th
1, 17, review granted Oct. 14, 2020, S264033.)

14
 These decisions misperceive the nature of the
section 1170.95 petition, which challenges the murder conviction,
not the special circumstance finding. (People v. York (2020)
54 Cal.App.5th 250, 260, review granted Nov. 18, 2020, S264954
[“section 1170.95 permits a petitioner to challenge a murder
conviction. If that challenge succeeds, then under
section 1170.95, subdivision (d)(3), the special circumstance is
vacated as a collateral consequence”].)
To be sure, section 189, subdivision (e)(3), as amended by
Senate Bill 1437, 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; accord, People v. York, supra,
54 Cal.App.5th at p. 258, review granted [“[t]he language of
section 189, subdivision (e)(3), as amended by Senate Bill 1437,
tracks the language of the special circumstance provision”].) But
“[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 the
rulings in Banks and Clark.” (York, at p. 261.) Thus, Wilson’s
petition is made possible by the changes made to section 189, not
because of the clarifications made in Banks and Clark.
(§ 1170.95, subd. (a)(3) [allowing petition if “the petitioner could
not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019”].)
We also disagree with the Attorney General to the extent
he argues the “plain language” of subdivision (f) of

15
section 1170.95 provides a defendant is only entitled to relief once
he or she “has previously sought and actually obtained
Banks/Clark relief on appellate or habeas review.”
Subdivision (f) states, “This section does not diminish or abrogate
any rights or remedies otherwise available to the petitioner.”
That language preserves a petitioner’s rights. It does not limit
them, as the Attorney General suggests. Nothing in
subdivision (f) indicates a defendant is required to obtain
Banks/Clark relief before filing a section 1170.95 petition. (See
People v. Scott (2014) 58 Cal.4th 1415, 1421 [“‘“[w]hen the
language of a statute is clear, we need go no further”’”]; People v.
Murphy (2001) 25 Cal.4th 136, 159 [the Legislature “knows how
to use language clearly expressing [its] intent”]; cf. People v.
Morales (2016) 63 Cal.4th 399, 408 [finding that similar statutory
language under Proposition 47 “protects a person ‘from being
forced to choose between filing a petition for a recall of sentence
and pursuing other legal remedies to which they might be
entitled (e.g., petition for habeas corpus)’”].)
5. A Pre-Banks/Clark Special Circumstance Finding Alone
Does Not Preclude Relief Under Section 1170.95
The Attorney General alternatively argues, citing Galvan,
supra, 52 Cal.App.5th at page 1142, review granted, a
pre-Banks/Clark special-circumstance finding renders a
defendant ineligible for relief under section 1170.95 because “a
defendant who suffered a felony murder special circumstance
conviction before Senate Bill 1437 could still be convicted of
felony murder under the changes Senate Bill 1437 made to
section 189.” As the Attorney General explains, Wilson’s jury
was instructed that to convict him of the special circumstances
under section 190.2, subdivision (a)(17), it had to find either that

16
he was the actual killer (with or without intent to kill), that he
aided and abetted murder with the intent to kill, or that he aided
and abetted the felony that led to the victims’ deaths while acting
as a major participant with reckless indifference to human life,
the same element now found in section 189, subdivision (e)(3).
We agree with those recent court of appeal decisions,
including People v. Drayton, supra, 47 Cal.App.5th 965 and
People v. Torres, supra, 46 Cal.App.5th 1168, review granted,
that have rejected this analysis and have held a special
circumstance finding pre-Banks/Clark is insufficient, without
more, to deny a section 1170.95 petition. Because the evidence
supporting such a special circumstance finding was not reviewed
under the standards set forth in Banks and Clark, the superior
court can determine a petitioner like Wilson is ineligible for relief
as a matter of law only after reviewing the available record of
conviction in light of the Banks and Clark factors. (See Verdugo,
supra, 44 Cal.App.5th at p. 330, review granted [“[t]he record of
conviction might also include other information that establishes
the petitioner is ineligible for relief as a matter of law because he
or she was convicted on a ground that remains valid
notwithstanding SB 1437’s amendments to sections 188 and
189”]; People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review
granted Mar. 18, 2020, S260410 [record must show defendant is
“indisputably ineligible for relief”].)
Finally, we disagree with the Attorney General’s argument
that section 1170.95, subdivision (d)(2), supports his position that
a pre-Banks/Clark felony-murder special-circumstance finding
necessarily has preclusive effect. That subdivision provides, “If
there was a prior finding by a court or jury that the petitioner did
not act with reckless indifference to human life or was not a

17
major participant in the felony, the court shall vacate the
petitioner’s conviction and resentence the petitioner.” The
Attorney General contends this provision means “the Legislature
understood that a defendant stands validly convicted of a
felony murder special circumstance until overturned under
Banks and/or Clark.” As other courts have observed, nothing in
the language of subdivision (d)(2) supports the Attorney
General’s argument. (See York, supra, 54 Cal.App.5th at pp. 260-
261, review granted [subdivision (d)(2) “does not state that a true
finding on a special circumstance allegation automatically
precludes relief. To the contrary, its language implies that there
is no such bar to eligibility”; “[i]f the Legislature had intended
such a finding automatically to preclude eligibility for relief, it
could have said so”]; People v. Smith (2020) 49 Cal.App.5th 85,
94, review granted July 22, 2020, S262835 [“[t]here is no
corresponding provision indicating that a jury’s prior special
circumstance true finding, or a Court of Appeal’s affirmation
thereof, operates as an automatic statutory bar to eligibility”]; see
also People v. Murphy, supra, 25 Cal.4th at p. 159 [“the
Legislature has shown that when it wants a sentence calculated
without consideration of some circumstance, it knows how to use
language clearly expressing that intent”]; but see Galvan, supra,
52 Cal.App.5th at p. 1142, review granted [“[a]lthough Galvan is
asserting that he could not now be convicted of murder, the
alleged inability to obtain such a conviction is not ‘because of
changes’ made by Senate Bill No. 1437, but because of the
clarification of the requirements for the special circumstance
finding in Banks and Clark”].)

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 6. Wilson Is Ineligible for Relief as a Matter of Law
As discussed, in Verdugo we held to determine whether the
petitioner is eligible for relief (the first prima facie review), the
court must examine the readily available record of conviction,
which will at least include the complaint, information or
indictment filed against the petitioner; the verdict form or factual
basis documentation for a negotiated plea; and the abstract of
judgment. (Verdugo, supra, 44 Cal.App.5th at pp. 329-330,
review granted.) We also held, “A court of appeal opinion,
whether or not published, is part of the appellant’s record of
conviction.” (Id. at p. 333.)
In summarily denying Wilson’s petition the superior court
erred in concluding Wilson was the actual killer based on the
imposition of a section 12022.53, subdivision (d), enhancement on
count 1 and did not consider the significance of the jury’s felony-
murder special-circumstance finding, let alone evaluate that
finding under Banks and Clark. Nonetheless, the Attorney
General argues review of the record of conviction, including our
opinion on Wilson’s direct appeal, demonstrates Wilson is
ineligible for relief as a matter of law and the superior court’s
errors are harmless. (See People v. Law, supra, 48 Cal.App.5th at
p. 825, review granted [although the trial court erred by
concluding the special circumstance finding, on its own, rendered
petitioner ineligible for relief, the error was harmless because the
record demonstrates he qualified as a major participant who had
acted with reckless indifference to human life under Banks and
Clark]; see also In re Miller, supra, 14 Cal.App.5th at pp. 979-980
[defendant’s claim the evidence failed to support the robbery-
murder special circumstance does not require resolution of
disputed facts; “the facts are a given, they are just legally

19
insufficient under section 190.2 as elucidated in Banks and
Clark”].)
Wilson, in contrast, argues a remand is necessary so he can
present “new or additional evidence” in support of his claim he
was not a major participant who acted with reckless indifference
to human life during the killing of Sun. (See People v. Smith,
supra, 49 Cal.App.5th at p. 94 [“Section 1170.95 provides ‘the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet [his] burden[ ].’ [Fn. & citation
omitted.] It is conceivable that [defendant] 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. . . . [¶] We
therefore cannot conduct our own assessment of the trial
evidence to determine whether Smith was a major participant
and acted with reckless indifference to human life, or to use that
record evidence to inquire whether the deprivation of counsel was
harmless error”].)
We agree with the Attorney General that harmless error
review is appropriate on appeal of a denial of a section 1170.95
petition. The relief provided by this section is a legislative “act of
lenity” designed to give inmates the ameliorative benefit of
changes to applicable criminal laws. (People v. Gentile, supra,
10 Cal.5th at p. 853 [“[s]imilarly here, Senate Bill 1437 creates a
specific mechanism for retroactive application of its ameliorative
provisions”]; People v. Lopez (2019) 38 Cal.App.5th 1087, 1114-
1115, review granted Nov. 13, 2019, S258175 [“‘[T]he retroactive
relief they are afforded by Senate Bill 1437 is not subject to Sixth
Amendment analysis. Rather, the Legislature’s changes
constituted an act of lenity that does not implicate defendants’

20
Sixth Amendment rights’”]; see People v. Edwards (2020)
48 Cal.App.5th 666, 675, review granted July 8, 2020, S262481
[any error in not appointing counsel in a section 1170.95 petition
was harmless under Watson where the petitioner did not “fall
within the provisions of section 1170.95 as a matter of law”].) As
such, any error by the superior court would not provide a basis
for reversal unless the petitioner can show a reasonable
probability that he or she would have obtained a more favorable
result absent the error. (See People v. Daniel (2020)
57 Cal.App.5th 666, 676 [“we hold that a defendant like Daniel
whose petition is denied before an order to show cause issues has
the burden of showing ‘it is reasonably probable that if [he or she]
had been afforded assistance of counsel his [or her] petition would
not have been summarily denied without an evidentiary
hearing’”]; see also People v. Epps (2001) 25 Cal.4th 19, 29
[“because the error is purely one of state law, the Watson
harmless error test applies”]; People v. Johnson (2016)
1 Cal.App.5th 953, 968 [Watson harmless error standard applied
to superior court’s error on a defendant’s resentencing petition
under Proposition 47].)
Among the factors the Supreme Court identified in Banks
and Clark to help determine whether a defendant can be found to
have been a major participant who acted with reckless
indifference to human life during a felony murder are his or her
awareness of the particular dangers posed by the nature of the
crime and the weapons used; the defendant’s physical presence at
the crime and his or her ability to facilitate or prevent the actual
murder; and the defendant’s actions after the use of lethal force.
(See Clark, supra, 63 Cal.4th at pp. 618-622; Banks, supra,
61 Cal.4th at p. 803.) Evaluating Wilson’s record of conviction,

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particularly our opinion on his direct appeal, in light of these
considerations, it is beyond dispute Wilson was a major
participant in the robbery of Sun and acted with reckless
indifference to Sun’s life. Wilson entered the liquor store on
two occasions in concert with Harris, the actual shooter. Both
men were armed. Wilson, in possession of the stolen money
immediately following the robbery and murder of Sun, shot Min
in the alley to facilitate his and Harris’s escape. Thus, Wilson,
physically present at the scene, not only made no effort to
minimize the possibility of violence but also actively caused it to
escalate after he and Harris left the store.
In sum, the record of conviction establishes Wilson’s
ineligibility for relief under section 1170.95 as a matter of law.
Any error in the superior court’s evaluation of his petition was
harmless.
DISPOSITION
The order denying Wilson’s petition for resentencing is
affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

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