People v. Lloyd CA2/3

Filed 3/4/21 P. v. Lloyd 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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, B299456

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA019920)
v.

COREY DWIGHT LLOYD,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Connie R. Quinones, Judge. Affirmed.
Allen G. Weinberg, 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, Daniel C. Chang and William N. Frank,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________
 In June 1993, a jury convicted defendant and appellant
Corey Dwight Lloyd, along with two accomplices, of kidnapping,
forcible rape, and murder, with true findings on the special
circumstance allegations that the murder was committed in the
course of rape and kidnapping. The jury’s verdicts did not
definitively establish which of the defendants was the actual
killer. In 2019, Lloyd petitioned for vacation of his murder
conviction and resentencing pursuant to Penal Code section
1170.95.1 The trial court summarily denied the petition,
concluding that, in light of the jury’s special circumstance finding
and the facts of the case, Lloyd was a major participant in the
underlying felony who acted with reckless indifference to human
life, and was thus ineligible for relief. Lloyd timely appeals the
denial of his petition. We affirm the court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
1. The murder and Lloyd’s conviction2
On May 3, 1992, 16-year-old M.H. spent the afternoon with
friends at the Mendoza residence on West 98th Street in Los
Angeles. In the early evening, she went to the nearby residence
of codefendant Ramon Lopez. Lloyd, Lopez, and codefendant Joel
Cortez, as well as other persons, were present. The group began
playing “spin the bottle.” As part of the game, M.H. removed her
pants, but refused to remove her pantyhose or underwear. When

1
All further undesignated statutory references are to the
Penal Code.
2
We derive the factual and procedural background in part
from this Division’s prior opinion in this matter, of which we have
taken judicial notice at the People’s request. (Evid. Code, §§ 452,
subd. (d), 459.)

2
Cortez and another person went into a bedroom, M.H. went to the
bedroom door to see what was going on inside. Cortez—armed
with a .380 firearm—pulled her into the room; Lloyd and Lopez
followed. All three defendants then “socked” M.H. in the face
repeatedly, and tried to remove her underwear. Cortez hit her in
the mouth with his gun. Screaming, M.H. begged the men not to
rape her. Cortez retrieved a radio from the living room, returned
to the bedroom, and played music loudly.
Ten to 15 minutes later, Lloyd and Lopez emerged from the
bedroom. Lopez armed himself with a .nine-millimeter firearm.
Lloyd retrieved a .45 handgun from under a sofa. Both men
loaded the guns. Cortez then exited the bedroom with M.H., who
was walking with her legs apart. She was bleeding and missing a
tooth, but she was clothed. Cortez socked her in the head and
told her to walk straight. All three defendants left with M.H.
They told her they would drop her off at a bus stop and she
should say she was raped by “some ‘Black guys.’ ”
The defendants walked M.H. into a nearby alley. She
repeatedly insisted she would not tell police what had happened.
Within minutes, multiple gunshots were fired. Seven hit M.H.,
killing her. One shot was fired into her head from close range;
three others were fired into her chest. The defendants left M.H.
lying in the alley. Her last words were, “I want my mom.”
All three defendants returned to Lopez’s house. They
formulated a plan to falsely claim that M.H. had tried to shoot
them, so they beat her up and shot her.
Police officers recovered eleven nine-millimeter cartridges
from the murder scene. All were fired from the same gun.
Lloyd eventually admitted to a detective that he had sex
with M.H., and that the story about her attempting to shoot the

3
defendants was a lie. He stated that she “ ‘was killed because she
would have told the police how she got fucked up.’ ” She had
pleaded with him to help her, and “ ‘begged [him] not to let her be
killed.’ ” Lloyd’s ex-girlfriend testified that Lloyd told her he
killed M.H.
Lloyd, Cortez, and Lopez were tried together. The court
instructed the jury on felony murder and direct aiding and
abetting, but not on the natural and probable consequences
doctrine. The jury convicted Lloyd and the other two defendants
of first degree murder (§ 187), forcible rape (§ 261, subd. (a)(2)),
and kidnapping (§ 207, subd. (a)). It found true special
circumstance allegations that all three defendants committed the
murder in the commission of rape and kidnapping. (§ 190.2,
subd. (a)(17).) The jury also found that during commission of the
murder and kidnapping, Lloyd personally used a firearm
(§§ 12022.5, subd. (a)) and a principal was armed with a firearm
(§ 12022, subd. (a)(1)). It found the same firearm enhancements
true as to Cortez and Lopez. The trial court sentenced Lloyd to
life in prison without the possibility of parole, plus five years for
personal use of a firearm.
In 1996, this court affirmed the judgments against Lloyd
and his codefendants. (People v. Lloyd et al. (April 25, 1996,
B080005) [nonpub. opn.].)
2. Section 1170.95 petition
In March 2019, after passage of Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437), Lloyd 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

4
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 murder in light of changes to sections 188
and 189 effectuated by Senate Bill 1437. He also checked a box
requesting that counsel be appointed for him.
On May 29, 2019, the trial court summarily denied the
petition. Lloyd was not present, and was not represented by
counsel. The court noted that the jury had found the special
circumstance allegations true. It recited the facts of the case as
described in this Division’s 1996 opinion, and concluded that
Lloyd “would still be found guilty with a valid theory of first
degree murder” under section 189, subdivision (e)(3), that is, he
was a major participant in the underlying felony and acted with
reckless indifference to human life.
Lloyd filed a timely notice of appeal.
DISCUSSION
Lloyd contends that the trial court erred by summarily
dismissing his petition based on the jury’s special circumstance
finding, 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; People v.
Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review
granted March 18, 2020, S260493; People v. Munoz (2019) 39

5
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; People v. Powell (2018) 5 Cal.5th 921, 942.) “ ‘ “The
felony-murder rule impute[d] the requisite malice for a murder
conviction to those who commit[ted] a homicide during the
perpetration of a felony inherently dangerous to human life.” ’ ”
(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). (People
v. Gentile, supra, 10 Cal.5th at p. 842.)
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

6
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
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, 901–902; People v.
Torres (2020) 46 Cal.App.5th 1168, 1178 (Torres), review granted
June 24, 2020, S262011; Verdugo, at p. 332; People v. Lewis

7
(2020) 43 Cal.App.5th 1128, 1139–1140, review granted Mar. 18,
2020, S260598 (Lewis).)
If, however, the petitioner’s ineligibility 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
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 such a 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
Lloyd 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, counsel must be
appointed as soon as a defendant files a section 1170.95 petition
with the correct boxes checked. Second, he avers that by
examining the record of conviction prior to the appointment of
counsel, the trial court engaged in an improper ex parte
“investigation.” And 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).
The People counter that the trial court properly reviewed
the record of conviction, and was not required to appoint counsel

8
because Lloyd was ineligible as a matter of law, given the jury’s
special circumstance findings. Further, they argue, any error
was harmless because the record shows Lloyd was a major
participant in the rape and kidnapping who acted with reckless
indifference to human life.
a. The trial court did not err by reviewing the record
of conviction or by declining to appoint counsel
We quickly dispose of Lloyd’s contention that the trial court
improperly reviewed the record of conviction. Contrary to Lloyd’s
argument, numerous Courts of Appeal, including this one, have
repeatedly 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, review granted Feb. 24,
2021, S266701; 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 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.; Lewis, supra, 43
Cal.App.5th at pp. 1137–1138 & fn. 7, rev.gr.)
We also reject the notion that a court must appoint counsel
immediately upon the defendant’s filing of a form petition in
which the correct boxes are checked. We and other courts have

9
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.; Verdugo, supra, 44 Cal.App.5th at p. 332,
rev. gr.; Torres, supra, 46 Cal.App.5th at p. 1178, 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 March
18, 2020, S260410; but see People v. Cooper (2020) 54 Cal.App.5th
106, 109, review granted Nov. 10, 2020, S264684.) Thus, if the
trial court here was correct that the special circumstance findings
precluded relief as a matter of law, it was not required to appoint
counsel before denying the petition.3
b. The trial court correctly denied the petition because
Lloyd is ineligible for relief as a matter of law
Lloyd’s appeal hinges on the effect of the jury’s true
findings on the special circumstance allegations.
To be eligible for resentencing, Lloyd 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;

3
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, Lloyd’s arguments give us no reason to
deviate from our prior holdings on these points.

10
or was a major participant in the underlying felony and acted
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.)
Lloyd’s jury found true two special circumstances: that the
murder was committed while he was engaged in the crimes of
rape and kidnapping. (§ 190.2, subd. (a)(17).) It was instructed
that if Lloyd was not the actual killer (or if it could not determine
whether he was), it could not find the special circumstances true
unless it was satisfied beyond a reasonable doubt that he, 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 of rape or kidnapping.
Thus, the jury’s findings on the special circumstance
allegations make Lloyd 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,
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

11
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, review granted Jan. 27, 2021, S265854
(Jones); 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, review granted Jan. 13, 2021, S265918
(Nunez).)
Lloyd 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 consider 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 Divisions Five and Seven
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.; People v. Harris (Feb. 16, 2021,
B300410) __ Cal.App.5th __ [2021 Cal.App.Lexis 127, *21].)
Torres reasoned that Banks and Clark “construed section 190.2,
subdivision (d) in a significantly different, and narrower manner

12
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 [the
petitioner’s] constitutional right to due process.” (Id. at p. 1180,
fn. omitted; People v. Smith (2020) 49 Cal.App.5th 85, 93, review
granted July 22, 2020, S262835; People v. York (2020) 54
Cal.App.5th 250, 258, 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.”]; People v. Harris, supra, __
Cal.App.5 at p. __ [2021 Cal.App.Lexis at p. *24 [pre-Banks/Clark
finding, without more, does not preclude relief under section
1170.95].)
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

13
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,
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

14
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
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 on direct appeal or 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

15
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 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,
supra, 52 Cal.App.5th at pp. 1142–1143, rev. gr.; 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.” (People v. 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

16
findings or the possibility of proving contrary facts if given a
second chance. Rather, it requires that the petitioner could not
be convicted of murder because of the changes to sections 188 and
189, not because a prior fact finder got the facts wrong. The
purpose of section 1170.95 is to give defendants the benefit of
amended sections 188 and 189 with respect to issues not
previously determined, not to provide a do-over on factual
disputes that have already been resolved.” (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 Divisions Five and Seven 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 Lloyd’s section 1170.95
petition because he is ineligible for relief as a matter of law. In
light of our conclusion, we do not reach the People’s argument
that we may determine Lloyd is ineligible as a matter of law
based on evidence in the record showing he acted as a major
participant with reckless indifference to human life.

17
 DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

I concur:

EGERTON, J.

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LAVIN, J., Dissenting:

For the reasons laid out in my dissent in People v.
Tarkington (2020) 49 Cal.App.5th 892, 917, review granted
August 12, 2020, S263219, and the holding and analysis in People
v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24,
2020, S262011 and People v. Harris (Feb. 16, 2021, B300410) __
Cal.App.5th __ [2021 Cal.App.Lexis 127, *21], I would reverse the
order and direct the trial court to conduct further proceedings in
accordance with Penal Code section 1170.95.

LAVIN, J.

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