People v. Daley CA2/3

Filed 1/29/21 P. v. Daley CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B301243

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA052445)
v.

ALCLIFF M. DALEY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Mark E. Windham, Judge. Affirmed.
Vanessa Place, 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, Assistant
Attorney General, David E. Madeo and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
 Alcliff M. Daley appeals from the trial court’s denial of his
Penal Code section 1170.95 petition1 for vacation of his first
degree murder conviction and resentencing. Because Daley is
ineligible for relief as a matter of law, we affirm the court’s order.
FACTUAL AND PROCEDURAL BACKGROUND2
1. The murder and Daley’s conviction
In 2004, Daley and Rohan McDermott planned to steal
marijuana from Troy Lewis and Dwane Godoy. After luring the
men into Daley’s apartment, Daley pointed a gun at Godoy and
Lewis, and McDermott taped their hands behind their backs.
Daley threatened to kill them and leave their bodies to rot in a
closet. When Daley noticed that Godoy had managed to free his
hands, he put the gun to Godoy’s head and again threatened to
kill him. McDermott retaped Godoy’s hands and also taped his
feet. When McDermott and Daley exited the apartment, Godoy
managed to free himself and escaped after struggling with
McDermott, who was outside the front door. Lewis did not
escape. His body was discovered in the apartment; he had been
shot in the forehead.
A jury found Daley guilty of first degree murder with true
findings on special circumstance allegations that the murder was
committed during an attempted kidnapping and an attempted

1
All further undesignated statutory references are to
the Penal Code.
2
We derive the factual and procedural background
primarily from our unpublished opinion in this case, of which we
take judicial notice on our own motion. (Evid. Code, § 451, subd.
(a).)

2
robbery. (§§ 187, subd. (a), 190.2, subd. (a)(17)(A) & (B)).3 It also
found Daley personally used a firearm during the offense.
(§§ 12022, 12022.53, subd. (b)). The trial court sentenced Daley
to life in prison without the possibility of parole, plus 10 years.
In 2007, this division affirmed the judgment of conviction.
(People v. Daley (Oct. 18, 2007, B190721) [nonpub. opn.].)
2. Section 1170.95 petition
In June 2019, after passage of Senate Bill No. 1437 (2017–
2018 Reg. Sess.) (Senate Bill 1437), Daley filed a petition for
vacation of his murder conviction and resentencing. Using a
preprinted form, he checked boxes stating that he had been
convicted of murder pursuant to the felony-murder rule or the
natural and probable consequences doctrine; he was not the
actual killer; he did not, with the intent to kill, aid and abet the
actual killer; he was not a major participant in the felony or did
not act with reckless indifference to human life; and he could not
now be convicted of first degree felony murder in light of changes
to section 189 effectuated by Senate Bill 1437. He also checked a
box requesting that counsel be appointed for him.
On June 28, 2019, the trial court summarily denied the
petition. Daley was not present, and was not represented by
counsel. The court found Daley was ineligible for relief as a
matter of law because the jury’s true findings on the special
circumstance allegations established he intended to kill, or was a
major participant in the murder and acted with reckless
indifference to human life. Further, the trial court found that

3
Daley and McDermott were tried separately.
McDermott was also found guilty of special circumstance first
degree murder.

3
Daley was the actual killer based on the jury’s finding that he
personally used a firearm.
Daley appeals the trial court’s denial of his petition.
DISCUSSION
Daley contends that the trial court erred by summarily
dismissing his petition based on the jury’s special circumstance
findings, without appointing counsel for him. We disagree.
1. Applicable legal principles
a. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile); People
v. Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review
granted Mar. 18, 2020, S260493; People v. Munoz (2019)
39 Cal.App.5th 738, 749–750, 763, review granted Nov. 26, 2019,
S258234.)
Prior to Senate Bill 1437’s enactment, under the felony-
murder rule “a defendant who intended to commit a specified
felony could be convicted of murder for a killing during the felony,
or attempted felony, without further examination of his or her
mental state.” (People v. Lamoureux (2019) 42 Cal.App.5th 241,
247–248 (Lamoureux); People v. Powell (2018) 5 Cal.5th 921,
942.) Similarly, under the natural and probable consequences
doctrine, a defendant was “liable for murder if he or she aided
and abetted the commission of a criminal act (a target offense),
and a principal in the target offense committed murder (a
nontarget offense) that, even if unintended, was a natural and

4
probable consequence of the target offense.” (Lamoureux, at
p. 248.)
Senate Bill 1437 amended the felony-murder rule by
adding section 189, subdivision (e), which provides that a
participant in the perpetration of qualifying felonies is liable for
felony murder only if the person: (1) was the actual killer;
(2) was not the actual killer but, with the intent to kill, acted as a
direct aider and abettor; or (3) the person was a major participant
in the underlying felony and acted with reckless indifference to
human life, as described in section 190.2, subdivision (d).
(Gentile, supra, 10 Cal.5th at p. 842.) It amended the natural
and probable consequences doctrine by adding subdivision (a)(3)
to section 188, which states that “[m]alice shall not be imputed to
a person based solely on his or her participation in a crime.”
b. Section 1170.95’s petitioning procedure
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a now-
invalid felony-murder or natural and probable consequences
theory may petition for vacation of their convictions and
resentencing. A defendant is eligible for relief under section
1170.95 if he meets three conditions: (1) he must have been
charged with murder under a theory of felony murder or murder
under the natural and probable consequences doctrine, (2) must
have been convicted of first or second degree murder, and
(3) could no longer be convicted of first or second degree murder
due to changes to sections 188 and 189 effectuated by Senate Bill
1437. (§ 1170.95, subd. (a).)
Evaluation of a section 1170.95 petition requires a multi-
step process: an initial review to determine the petition’s facial
sufficiency; a prebriefing, “ ‘first prima facie review’ ” to

5
preliminarily determine whether the petitioner is statutorily
eligible for relief as a matter of law; and a second, postbriefing
prima facie review to determine whether the petitioner has made
a prima facie case that he or she is entitled to relief. (People v.
Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington), review
granted Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th
at pp. 327–330, rev.gr.)
When conducting the first prima facie review, the court
must determine, based upon its review of readily ascertainable
information in the record of conviction and the court file, whether
the petitioner is statutorily eligible for relief as a matter of law,
i.e., whether he or she was convicted of a qualifying crime, based
on a charging document that permitted the prosecution to
proceed under the natural and probable consequences doctrine or
a felony-murder theory. (Tarkington, supra, 49 Cal.App.5th at
pp. at pp. 897–898, rev.gr.; Verdugo, supra, 44 Cal.App.5th at
pp. 329–330, rev.gr.) If it is clear from the record of conviction
that the petitioner cannot establish eligibility as a matter of law,
the trial court may summarily deny the petition without
appointing counsel. (Tarkington, at pp. 898, 900–902; People v.
Torres (2020) 46 Cal.App.5th 1168, 1178 (Torres), review granted
June 24, 2020, S262011; Verdugo, at p. 332; People v. Lewis
(2020) 43 Cal.App.5th 1128, 1139–1140, review granted Mar. 18,
2020, S260598.)
If, however, the petitioner’s eligibility is not established as
a matter of law, the court must appoint counsel and permit
briefing to determine whether the petitioner has made a prima
facie showing he or she is entitled to relief. (Verdugo, supra, 44
Cal.App.5th at p. 330, rev.gr.; Tarkington, supra, 49 Cal.App.5th
at p. 898, rev.gr.) If the petitioner makes such a showing, the

6
court must issue an order to show cause and conduct a hearing to
determine whether to vacate the murder conviction and
resentence the petitioner on any remaining counts. (§ 1170.95,
subds. (c), (d); People v. Nguyen (2020) 53 Cal.App.5th 1154,
1165–1166.) At that hearing, the prosecution has the burden to
prove, beyond a reasonable doubt, that the defendant is ineligible
for resentencing. (§ 1170.95, subd. (d)(3).)
2. Application here
a. Contentions4
Daley challenges the trial court’s ruling on several grounds.
First, he argues that the trial court erred by denying his petition
without appointing counsel. In his view—and contrary to the
analyses in Verdugo and Lewis—based on the statutory language
and the Legislature’s intent, counsel must be appointed and an
order to show cause issued as soon as a defendant files a facially
sufficient section 1170.95 petition, i.e., one that has the correct
boxes checked and does not affirmatively aver facts that would
disqualify him as a matter of law. Second, he avers that, based
on the language and structure of section 1170.95, a trial court is
not permitted to go beyond the allegations in the petition and
examine the record to determine eligibility until counsel is
appointed and an evidentiary hearing transpires pursuant to
section 1170.95, subdivision (d). Third, he contends that the
court erred by finding him ineligible based exclusively on the
jury’s special circumstance findings, which predated our Supreme
Court’s decisions in People v. Banks (2015) 61 Cal.4th 788
(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
Finally, he urges that the jury’s true finding on the firearm use

4
We have considered both the initial and the
supplemental briefs filed by the parties.

7
enhancement does not establish he was the actual killer, and
therefore does not demonstrate his ineligibility as a matter of
law.
The People counter that, based on the statutory language
and the Legislative history of the bill, the trial court properly
reviewed the record of conviction and was not required to appoint
counsel because Daley was ineligible as a matter of law, given the
jury’s special circumstance findings. In their view, Daley’s
interpretation of section 1170.95 is incorrect and would open the
door to wholesale challenges to any prior jury finding, violating
the principle that when a conviction is collaterally attacked, all
presumptions favor its accuracy and fairness. Further, they
argue, any error was harmless because it is not reasonably
probable that Daley would have obtained a more favorable result
had counsel been appointed. They also assert, as an alternative
ground demonstrating ineligibility, that the trial court properly
found Daley was ineligible because he was the actual killer.
b. The trial court did not err by reviewing the record
of conviction or by declining to appoint counsel
We quickly dispose of Daley’s contention that the trial court
improperly reviewed the record of conviction. Numerous courts of
appeal, including this one, have rejected the argument that a
trial court is limited to consideration of the allegations in the
petition when determining whether the petitioner has made a
prima facie showing of eligibility. A court may consider readily
ascertainable information in the record of conviction and the
court file, including a prior court of appeal opinion. (See People v.
Palacios (2020) 58 Cal.App.5th 845, 855–856; People v.
Gomez (2020) 52 Cal.App.5th 1, 15–16 (Gomez), review granted
Oct. 14, 2020, S264033; People v. Soto (2020) 51 Cal.App.5th

8
1043, 1055, review granted Sept. 23, 2020, S263939; Tarkington,
supra, 49 Cal.App.5th at p. 898, rev.gr.; People v. Lee (2020)
49 Cal.App.5th 254, 262–263, review granted July 15, 2020,
S262459; People v. Law (2020) 48 Cal.App.5th 811, 821, review
granted July 8, 2020, S262490; Torres, supra, 46 Cal.App.5th at
pp. 1173, 1178, rev.gr.; Verdugo, supra, 44 Cal.App.5th at
pp. 329–330, rev.gr.; People v. Lewis, supra, 43 Cal.App.5th at
pp. 1137–1138 & fn. 7, rev.gr.)
We likewise reject Daley’s argument that the language of,
and intent underlying, section 1170.95 required counsel to be
appointed as soon as he filed a facially sufficient petition. To the
contrary, we and other courts have held that a trial court may
summarily deny a petition without appointing counsel if the
record shows the defendant is ineligible as a matter of law. (See
Tarkington, supra, 49 Cal.App.5th at pp. 901–902, rev.gr.; Torres,
supra, 46 Cal.App.5th at p. 1173, rev.gr.; Verdugo, supra,
44 Cal.App.5th at pp. 332–333, rev.gr.; People v. Lewis, supra,
43 Cal.App.5th at pp. 1139–1140, rev.gr.; People v. Cornelius
(2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020,
S260410; but see People v. Cooper (2020) 54 Cal.App.5th 106, 109,
review granted Nov. 10, 2020, S264684.)5

5 Our California Supreme court is currently considering
whether a trial court may consider the record of conviction in
determining whether a defendant has made a prima facie
showing of eligibility for relief under section 1170.95, and when
the right to counsel arises under section 1170.95, subdivision (c).
(People v. Lewis, S260598.) Pending further guidance from our
high court, however, Daley’s arguments do not persuade us to
deviate from our prior holdings on these points.

9
 Daley argues that he had a constitutional right to counsel
at the outset because the petitioning procedure under section
1170.95 is a critical stage of a criminal proceeding. This is so, he
avers, because of the adversary nature of the petition process,
combined with the potential for significant prejudice. Therefore,
he posits, the court’s failure to appoint counsel amounted to
structural error, requiring per se reversal. We disagree.
Under both the state and federal Constitutions, a
defendant has a right to counsel at all critical stages of a criminal
prosecution. (U.S. Const., 6th Amend.; Cal. Const., art I,
§ 15; Gardner v. Appellate Division of Superior Court (2019)
6 Cal.5th 998, 1004 (Gardner); People v. Doolin (2009) 45 Cal.4th
390, 453; People v. Rouse (2016) 245 Cal.App.4th 292, 296–
297 (Rouse).) Critical stages are those “events or proceedings in
which the accused is brought in confrontation with the state,
where potential substantial prejudice to the accused’s rights
inheres in the confrontation, and where counsel’s assistance can
help to avoid that prejudice.” (Gardner, at pp. 1004–1005; Rouse,
at p. 297 [“ ‘ “[T]he essence of a ‘critical stage’ is . . . the adversary
nature of the proceeding, combined with the possibility that a
defendant will be prejudiced in some significant way by the
absence of counsel.” [Citation.]’ ”].) Thus, arraignments,
preliminary hearings, postindictment lineups and interrogations,
plea negotiations, and sentencing are all critical stages.
(Gardner, at p. 1005; Rouse, at p. 297.) On the other hand, where
legislation gives inmates serving otherwise final sentences the
benefit of ameliorative changes to applicable sentencing laws, the
Sixth Amendment is not necessarily implicated. (See People v.
Perez (2018) 4 Cal.5th 1055, 1063–1064; People v. Howard (2020)
50 Cal.App.5th 727, 740 [“The retroactive relief provided by

10
section 1170.95 reflects an act of lenity by the Legislature” and
does not implicate a defendant’s Sixth Amendment rights]; People
v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [“the retroactive
relief . . . afforded by Senate Bill 1437 is not subject to Sixth
Amendment analysis” and defendants had no right to a jury trial
on petition].)
The first, prebriefing prima facie review of a petition under
section 1170.95 is not a critical stage of the proceedings. At that
point, the court is simply tasked with determining whether there
is a prima facie showing the petitioner falls within the provisions
of the statute as a matter of law, making all factual inferences in
his or her favor. (Verdugo, supra, 44 Cal.App.5th at p. 329,
rev.gr.; Tarkington, supra, 49 Cal.App.5th at p. 898, rev.gr.) This
initial prima facie review is not an adversarial proceeding.
Indeed, in the instant case it does not appear that the People
filed briefing or otherwise played any role in the trial court’s
denial of the petition. Adjudication of a section 1170.95 petition,
at the eligibility stage, is not akin to a sentencing hearing. The
court does not rule on disputed issues of fact; it must make all
factual inferences in favor of the petitioner. (Verdugo, at
p. 329; Tarkington, at p. 898.) And, the court is not called upon
to exercise its discretion in any respect. Nor do we detect the
possibility that counsel’s absence could prejudice a petitioner in a
significant way, or that counsel’s presence at this stage is
necessary to preserve his rights. Because the court’s ruling must
turn on undisputed facts that render a petitioner ineligible as a
matter of law, counsel’s representation could not meaningfully
impact this analysis.
Daley asserts that due process requires that an
incarcerated defendant must be afforded the right to counsel in

11
various instances even where the Sixth Amendment does not.
“[I]f a postconviction petition by an incarcerated defendant
‘attacking the validity of a judgment states a prima facie case
leading to issuance of an order to show cause, the appointment of
counsel is demanded by due process concerns.’ [Citations.]”
(Rouse, supra, 245 Cal.App.4th at p. 300; People v. Fryhaat (2019)
35 Cal.App.5th 969, 980–981.) “That right is a limited one,
however, and only kicks in once the defendant makes a prima
facie showing of entitlement of postconviction relief.” (People v.
Cole (2020) 52 Cal.App.5th 1023, 1032, review granted Oct. 14.
2020, S264278.) Here, Daley has not moved past the initial
eligibility stage; he has not made a prima facie case requiring
issuance of an order to show cause. Accordingly, he had no due
process right to counsel. And, because Daley is categorically
ineligible for relief, he could have had no liberty interest in the
appointment of counsel. (See Tarkington, supra, 49 Cal.App.5th
at pp. 907–908, rev.gr.)
Thus, if the trial court correctly concluded that the special
circumstance findings precluded relief as a matter of law, it was
not required to appoint counsel before denying the petition. We
turn to that question.
c. The trial court correctly denied the petition because
Daley is ineligible for relief as a matter of law
To be eligible for resentencing, Daley was required to show
that he “could not be convicted of first or second degree murder
because of changes to Section 188 or 189” made by Senate Bill
1437. (§ 1170.95, subd. (a)(3).) Under section 189, as amended, a
defendant can be convicted of felony murder if he was the actual
killer; acted as a direct aider and abettor with the intent to kill;
or was a major participant in the underlying felony and acted

12
with reckless indifference to human life. (§ 189, subd. (e); People
v. Murillo (2020) 54 Cal.App.5th 160, 167 (Murillo), review
granted Nov. 18, 2020, S264978.)
As noted, the jury found true two special circumstance
allegations: that the murder was committed during an attempted
kidnapping and an attempted robbery. (§ 190.2, subd. (a)(17)(A)
& (B)). Although the record before us does not contain the jury
instructions, Daley’s counsel asserts that his jury was instructed
with CALJIC No. 8.80.1. That instruction provides that, if the
jury concludes a defendant was not the actual killer (or if it is
unable to determine whether he was), it cannot find the special
circumstances true unless it is satisfied beyond a reasonable
doubt that the defendant, with the intent to kill, directly aided
and abetted the murder; or, with reckless indifference to human
life and as a major participant, aided and abetted the underlying
offenses. The instruction also states that a defendant acts with
reckless indifference to human life when he knows or is aware
that his acts involve a grave risk of death to an innocent human
being.
The record does not reveal what theory the People relied
upon at trial to prove the murder. Assuming the prosecution
relied upon a felony murder theory, the jury’s findings on the
special circumstance allegations make Daley ineligible for
resentencing as a matter of law.
“The requirements for the felony-murder special
circumstance did not change as a part of Senate Bill No. 1437,
and are identical to the new requirements for felony murder
following the enactment of Senate Bill No. 1437. In both
instances, the defendant must have either actually killed the
victim [citations]; acted with the intent to kill in aiding, abetting,

13
counseling, commanding, inducing, soliciting, requesting, or
assisting in the killing [citations]; or been a major participant in
the underlying felony and acted with reckless indifference to
human life [citations]. By finding a special circumstance
allegation true, the jury makes precisely the same finding it must
make in order to convict a defendant of felony murder under the
new law. Because a defendant with a felony-murder special
circumstance could still be convicted of murder, he is ineligible as
a matter of law to have his murder conviction vacated.” (People
v. Galvan (2020) 52 Cal.App.5th 1134, 1140–1141 (Galvan),
review granted Oct. 14, 2020, S264284; see People v. Jones (2020)
56 Cal.App.5th 474, 482 (Jones), review granted Jan. 27, 2021,
S265854; Gomez, supra, 52 Cal.App.5th at p. 15, rev.gr.; Murillo,
supra, 54 Cal.App.5th at p. 167, rev.gr.; People v. Allison (2020)
55 Cal.App.5th 449, 457 (Allison); People v. Nunez (2020) 57
Cal.App.5th 78, 91 (Nunez), review granted Jan. 13, 2021,
S265918.)
Even if the jury was instructed on the natural and probable
consequences doctrine—which appears unlikely, given the
circumstances—the true findings on the special circumstance
allegations likewise demonstrate Daley’s ineligibility. As noted,
to be eligible for relief under section 1170.95, Daley must show he
could not be convicted of murder after the amendments to the law
made by Senate Bill 1437. Senate Bill 1437 changed the law to
prohibit malice from being imputed based solely on a defendant’s
participation in a crime. (§ 188, subd. (a)(3); Gentile, supra,
10 Cal.5th at pp. 846–847.) It did not change the principle that
murder is a killing committed with malice aforethought. Both
before and after Senate Bill 1437’s enactment, a defendant who
kills with malice aforethought is guilty of murder. Malice may be

14
express or implied. (§§ 187, subd. (a), 188, subd. (a).) Express
malice exists when a defendant intends to kill. (§ 188,
subd. (a)(1); Gentile, at p. 844.) “For implied malice, the intent
requirement is satisfied by proof that the actual perpetrator
‘ “knows that his conduct endangers the life of another and . . .
acts with conscious disregard for life.” ’ [Citation.]” (Gentile, at
p. 850; People v. Chun (2009) 45 Cal.4th 1172, 1181.) Thus, by
finding Daley acted with reckless indifference to human life, the
jury necessarily found he acted with malice, and he could still be
convicted under current law.
Daley argues that the jury’s special circumstance findings
are not preclusive in his case, because they predated our
Supreme Court’s decisions in Banks and Clark. “Banks and
Clark ‘clarified “what it means for an aiding and abetting
defendant to be a ‘major participant’ in a crime who acted with a
‘reckless indifference to human life.’ ” ’ [Citation.] Banks
identified certain factors to be considered in determining whether
a defendant was a major participant; Clark identified factors to
guide the determination of whether the defendant acted with
reckless indifference to human life.” (Gomez, supra, 52
Cal.App.5th at p. 13, fn. 5, rev.gr.)
The appellate courts are split on the question of whether a
pre-Banks and Clark special circumstance finding makes a
petitioner ineligible for section 1170.95 relief as a matter of law.
(See Jones, supra, 56 Cal.App.5th at pp. 478–479, rev.gr.
[collecting cases].) Our colleagues in Division Five have
concluded that such a special circumstance does not, by itself,
render a petitioner ineligible for relief. (Torres, supra, 46
Cal.App.5th at p. 1178, rev.gr.) Torres reasoned that Banks and
Clark “construed section 190.2, subdivion (d) in a significantly

15
different, and narrower manner than courts had previously
construed the statute.” (Id. at p. 1179.) “Accordingly, in
determining if [petitioner] could be convicted today of first degree
murder, we cannot simply defer to the jury’s pre-Banks and Clark
factual findings that [petitioner] was a major participant who
acted with reckless indifference to human life as those terms
were interpreted at the time.” (Ibid.) “No court has affirmed the
special circumstances findings at issue post-Banks and Clark.
There is therefore a possibility that [the petitioner] was punished
for conduct that is not prohibited by section 190.2 as currently
understood, in violation of [petitioner’s] constitutional right to
due process.” (Id. at p. 1180, internal fn. omitted; People v. Smith
(2020) 49 Cal.App.5th 85, 93 (Smith), review granted July 22,
2020, S262835; People v. York (2020) 54 Cal.App.5th 250, 258
(York), review granted Nov. 18, 2020, S264954 [pre-Banks/Clark
special circumstance finding “cannot preclude eligibility for relief
under . . . section 1170.95 as a matter of law, because the factual
issues that the jury was asked to resolve” in such a case “are not
the same factual issues our Supreme Court has since identified
as controlling.”].)
As noted, other courts hold that a pre-Banks and Clark
special circumstance finding bars section 1170.95 relief as a
matter of law. They reason that section 1170.95 was not meant
to be an avenue for a collateral attack on the sufficiency of the
evidence to support a special circumstance finding (see, e.g.,
Allison, supra, 55 Cal.App.5th at pp. 453, 461), and a defendant
seeking to challenge the sufficiency of the evidence to prove a pre-
Banks and Clark major participant or reckless indifference
finding must do so via a petition for writ of habeas corpus.
(Gomez, supra, 52 Cal.App.5th at pp. 16–17, rev.gr.; Galvan,

16
supra, 52 Cal.App.5th at p. 1137, rev.gr.; Jones, supra, 56
Cal.App.5th at p. 483, rev.gr.; Nunez, supra, 57 Cal.App.5th at
p. 96, rev.gr.)
In support of this view, some cases point out that Banks
and Clark did not state a new rule of law, but merely clarified the
already-existing meaning of “major participant” and “reckless
indifference,” terms that do not have specialized definitions and
are interpreted as used in common parlance. (Jones, supra, 56
Cal.App.5th at pp. 482, 484, rev.gr.; Nunez, supra, 57
Cal.App.5th at p. 92, rev.gr.; Allison, supra, 55 Cal.App.5th at
pp. 458–459.) While optional language was added to the pattern
jury instructions after Banks and Clark, “no mandatory language
or material changes were made to the CALCRIM special
circumstances instructions,” and there is no requirement that
juries be instructed on the Banks/Clark clarifications. (Nunez, at
pp. 92–93; Jones, at p. 484; Allison, at pp. 458–459.) Thus, the
argument that a pre-Banks/Clark special circumstance finding
must be presumed invalid exaggerates the impact of Banks and
Clark. (See Allison, at p. 458; Jones, at p. 484.) There is “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.” (Nunez, at p. 94).
Additionally, this line of authority reasons that the
Torres/Smith/York approach is inconsistent with the plain
language of section 1170.95, because a defendant claiming
ineligibility based on Banks and Clark does not meet the
statutory requirement that he or she cannot be convicted because
of changes to sections 188 or 189 made by Senate Bill 1437.
(Jones, supra, 56 Cal.App.5th at p. 484, rev.gr.) “In order to be

17
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. (§ 1170.95, subd. (a)(3).) [¶] . . . Although
[petitioner] 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 were major participants in an underlying
felony and acted with reckless indifference to human life.”
(Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr.; Murillo, supra,
54 Cal.App.5th at p. 168, rev.gr.; Allison, supra, 55 Cal.App.5th
at p. 460; Nunez, supra, 57 Cal.App.5th at pp. 94–95, rev.gr.)
Further, in concluding that the proper vehicle to challenge
a pre-Banks and Clark special circumstance finding is a petition
for writ of habeas corpus, courts point to the different burdens
involved in a habeas petition and a section 1170.95 petition. A
defendant challenging a pre-Banks/Clark special circumstance
finding by means of a writ of habeas corpus must show that the
record contains insufficient evidence to prove he or she acted as a
major participant or with reckless indifference. (Jones, supra,
56 Cal.App.5th at p. 485, rev.gr.; Galvan, supra, 52 Cal.App.5th
at pp. 1142–1143, rev.gr.; Gomez, supra, 52 Cal.App.5th at p. 17,
rev.gr.) “By contrast, a petitioner who demonstrates a prima
facie case for relief under section 1170.95 has shifted the burden
to the People to prove beyond a reasonable doubt that they are
ineligible for resentencing (that is, they still could be convicted of

18
murder despite the change to the felony-murder rule in § 189).
[Citation.] . . . . [T]he Torres/Smith/York line of cases would read
into section 1170.95 a new procedure allowing petitioners to
ignore a special circumstance finding—no matter how well
supported in the record—as well as the recognized method of
challenging it. Such petitioners would be allowed to relitigate a
prior jury finding at an evidentiary hearing where the
prosecution bears the burden of proving the truth of the finding,
beyond a reasonable doubt, a second time.” (Jones, at p. 485.)
Allowing petitioners to challenge a special circumstance finding
via a section 1170.95 petition would give them an advantage over
similarly situated defendants, based on the date of their
convictions. (Galvan, at pp. 1142–1143; see Nunez, supra, 57
Cal.App.5th at pp. 96–97, rev.gr.)
Such a procedure is inconsistent with the Legislature’s
intent. “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.
But there is no indication in the statute’s text or history of any
legislative intent to permit defendants to challenge their murder
convictions by attacking prior findings of fact.” (Nunez, supra, 57
Cal.App.5th at p. 95, rev.gr.) “Nothing in the language of section
1170.95 suggests it was intended to provide redress for allegedly
erroneous prior factfinding. In particular, subdivision (a)(3) of
section 1170.95 says nothing about erroneous prior findings or
the possibility of proving contrary facts if given a second chance.
Rather, it requires that the petitioner could not be convicted of
murder because of the changes to sections 188 and 189,
not because a prior fact finder got the facts wrong. The purpose

19
of section 1170.95 is to give defendants the benefit of
amended sections 188 and 189 with respect to issues not
previously determined, not to provide a do-over on factual
disputes that have already been resolved.” (Allison, supra,
55 Cal.App.5th at p. 461.)
While we acknowledge that both of the foregoing lines of
authority are not without force, we respectfully disagree with our
colleagues in Division Five and conclude that the cases holding
that a special circumstance finding precludes relief as a matter of
law are more persuasive. Accordingly, we conclude that the trial
court correctly denied Daley’s section 1170.95 petition because he
is ineligible for relief as a matter of law.6

6
In light of our conclusion, we do not reach the
People’s arguments that any error was harmless, and that the
jury’s true finding on the section 12022.53, subdivision (b)
firearm use enhancement precluded relief.

20
 DISPOSITION
The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

I concur:

EGERTON, J.

21
DHANIDINA, J., Concurring and Dissenting:
I agree with the majority’s statement of facts and the law
regarding the procedural steps Penal Code1 section 1170.95
requires and as are described in People v. Verdugo (2020) 44
Cal.App.5th 320, 328, review granted March 18, 2020, S260493.
The majority has also explained well the split among appellate
courts about the interplay between section 1170.95 and a special
circumstance finding that a defendant was a major participant in
a murder who acted with reckless indifference to human life,
which finding predates People v. Banks (2015) 61 Cal.4th 788 and
People v. Clark (2016) 63 Cal.4th 522.
But where the majority sides with the People v. Galvan
(2020) 52 Cal.App.5th 1134, review granted Oct. 14, 2020,
S264284, line of cases regarding the split, I side with People v.
Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020,
S262011. In my view, a special circumstance finding that
predates Banks and Clark does not render a defendant such as
Daley ineligible for relief as a matter of law. (See, e.g., People v.
York (2020) 54 Cal.App.5th 250, review granted Nov. 18, 2020,
S264954; People v. Smith (2020) 49 Cal.App.5th 85, review
granted July 22, 2020, S262835.) I therefore respectfully dissent
as to that issue.
As the majority has said, under Senate Bill No. 1437,
malice may no longer be imputed to a person based solely on the
person’s participation in the crime; now, the person must have
acted with malice aforethought to be convicted of murder. (§ 188;
People v. Munoz (2019) 39 Cal.App.5th 738, 749, review granted
Nov. 26, 2019, S258234.) To that end, the natural and probable
consequences doctrine no longer applies to murder. And a

1 All further statutory references are to the Penal Code.

1
participant in enumerated crimes is liable under the felony-
murder doctrine only if the participant was the actual killer; or
with the intent to kill, aided and abetted the actual killer in
commission of first degree murder; or was a major participant in
the underlying felony and acted with reckless indifference to
human life. (§ 189, subd. (e); see Munoz, at pp. 749–750.)
The petitioning process Senate Bill No. 1437 created via
section 1170.95 thus requires a prima facie showing that the
defendant was not a major participant in the murder or did not
act with reckless indifference to life. Of course, a jury here found
that Daley was a major participant in the murder who acted with
reckless indifference to life. However, that 2006 finding predates
Banks and Clark. In my view, those decisions had the effect of
narrowing the field of defendants who are major participants who
act with reckless indifference to human life. (See, e.g., People v.
Torres, supra, 46 Cal.App.5th at p. 1179; People v. Smith, supra,
49 Cal.App.5th at p. 93.) It could be that a pre-Banks and Clark
jury made “precisely the same finding it must make in order to
convict a defendant of felony murder under the new law.” (Maj.
opn. ante, at p. 14.) But it also could be that evidence supporting
the true finding the jury made in 2006 before Banks and Clark
would not have been sufficient after them.
Section 1170.95 gives a defendant in Daley’s situation the
mere opportunity to make that showing, with the benefit of
counsel. I therefore agree with my colleagues in Division 5 that a
section 1170.95 petition is a challenge to a murder conviction
which may require consideration of a pre-Banks and Clark
special circumstance finding. (See generally People v. York,
supra, 54 Cal.App.5th at p. 260; People v. Smith, supra, 49
Cal.App.5th 85; People v. Torres, supra, 46 Cal.App.5th 1168.) In

2
this discrete situation involving a defendant convicted of a special
circumstance pre-Banks and Clark, the defendant has made a
sufficient showing to get past the preliminary prima facie level of
review described in Verdugo and is entitled to appointment of
counsel to assist in further briefing, i.e., to proceed to the second
step of the prima facie review.
This conclusion does not open the door to wholesale
challenges to any prior juror finding and to all manner of
collateral attack. Rather, the California Supreme Court in Banks
and Clark has, in one specific and limited instance, decisively
clarified what it means to be a major participant in a murder who
acts with reckless indifference to life. As that clarification could
here reflect on Daley’s murder conviction, I would therefore find
that Daley is not ineligible for relief as a matter of law and direct
the trial court to appoint counsel to represent him and to proceed
in accordance with section 1170.95, subdivision (c).2 (See, e.g.,
People v. Smith, supra, 49 Cal.App.5th at pp. 95–96; but see
People v. Law (2020) 48 Cal.App.5th 811, review granted July 8,
2020, S262490 [error susceptible to harmless error analysis].)

DHANIDINA, J.

2 The jury’s true findings on gun allegations under sections
12022 and 12022.53, subdivision (b), also do not render Daley
ineligible as a matter of law, as they do not establish that Daley’s
use of a firearm caused great bodily injury or death or that he
was the actual killer.

3