filed:

Filed: 3/12/21 P. v. Paulino 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B298401

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA138096-02)
v.

DELBERT PAULINO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Robert J. Perry, Judge. Reversed and
remanded with directions.
Winston Kevin McKesson for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri, Analee J. Brodie and
Amanda Lopez, Deputy Attorneys General, for Plaintiff and
Respondent.
______________________
Delbert Paulino, convicted in 2011 of first degree felony
murder, appeals the superior court’s postjudgment order denying
his petition for resentencing under Penal Code section 1170.95,1
arguing the court abused its discretion in determining, without
issuing an order to show cause and conducting an evidentiary
hearing, he could still be convicted of felony murder as a major
participant in kidnapping for robbery who had acted with
reckless indifference to human life. As we recently held in People
v. Harris (Feb. 16, 2021, B300410) __ Cal.App.5th ___
[2021 Cal.App. Lexis 127] (Harris), a jury’s felony-murder
special-circumstance finding under section 190.2,
subdivisions (a)(17) and (d), prior to 2015 does not necessarily
preclude relief under section 1170.95 in light of the Supreme
Court’s subsequent clarification in People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522
(Clark) of the requirements for finding a felony-murder special-
circumstance allegation true. Here, because the record of
conviction does not establish Paulino’s ineligibility for
resentencing as a matter of law, we reverse the superior court’s
ruling and remand with directions to issue an order to show
cause and to proceed in accordance with section 1170.95,
subdivision (d).

1 Statutory references are to this code.

2
 FACTUAL AND PROCEDURAL BACKGROUND
1. Paulino’s Felony-murder Conviction
As summarized in our opinion affirming Paulino’s
convictions following a retrial (People v. Paulino (Nov. 4, 2014,
B239878 & B246625) [nonpub. opn.]),2 Paulino, Austin Hemsley,
Gerald McKenzie and Equilla Jones devised a plan to rob Aundra
Boykins, who had been dating Jones and had been seen carrying
large amounts of cash. On the evening of January 3, 1996 the
three men followed Jones and Boykins to a motel. As Jones was
parking in the motel lot, Paulino stopped his car directly behind
her. Hemsley and McKenzie got out, grabbed Boykins and forced
him into the backseat of Paulino’s car. As the other men held
Boykins, Paulino used duct tape to secure Boykins’s hands
behind his back. Paulino then resumed driving while the others
searched Boykins.
Boykins had only a small amount of cash in his possession.
After being beaten by Hemsley and McKenzie, Boykins said he
had a large sum of money in a closet at his home. While Paulino
stayed with Boykins in the car, Hemsley and McKenzie went to
Boykins’s house to search for the money. They eventually
returned empty-handed.
Paulino told the others that they should let Boykins go, but
Hemsley refused. At Hemsley’s direction, Paulino drove the
group to a secluded area where Hemsley shot and killed Boykins.

2 Paulino had previously been tried and convicted, but the
judgment, affirmed on appeal, was set aside by the federal court
in Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083 and Paulino v.
Harrison (9th Cir. 2008) 542 F.3d 692 based on violation of
Paulino’s constitutional rights under Batson v. Kentucky (1986)
476 U.S. 79.

3
 After he was arrested some months later, Paulino admitted
his involvement in the events to detectives during recorded
interviews, which were played for the jury, and in a handwritten,
signed statement. Paulino insisted he had not shot Boykins and
did not intend for him to be killed. At trial Paulino testified he
wanted to release Boykins once he realized the man did not have
any money, but he feared he would be killed if he let Boykins go
free.
The jury found Paulino guilty of first degree murder (§ 187,
subd. (a)) with a special circumstance finding that the murder
had occurred during the commission of a kidnapping for robbery
(§ 190.2, subds. (a)(17), (d)), second degree robbery (§ 211) and
kidnapping for robbery (§ 209, subd. (b)). As to each count the
jury found true that a principal had been armed with a firearm
during the commission of the crime (§ 12022, subd. (a)(1)). The
trial court sentenced Paulino to life in prison without parole plus
one year on the firearm enhancement.3
2. Paulino’s Petition for Resentencing
On October 16, 2018 Paulino, represented by counsel,
petitioned to have his murder conviction vacated and to be
resentenced pursuant to section 1170.95, contending he could not

3 On appeal Paulino argued only that the trial court had
abused its discretion when it denied in part his motion for an in
camera review of law enforcement personnel records pursuant to
Pitchess v. Superior Court (1974) 11 Cal.3d 531 and had erred
when it denied his postverdict motion to compel discovery of
information related to the jury commissioner’s method of
allocating prospective jurors for assignment to local courthouses
in Los Angeles County. Paulino specifically contended Black
people were underrepresented in the jury venire for the Central
District (downtown Los Angeles). We rejected both arguments.

4
be convicted of felony murder under amendments to sections 188
and 189 made by Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Stats. 2018, ch. 1015) (Senate Bill 1437), which would become
effective January 1, 2019. Specifically, Paulino argued under
new section 189, subdivision (e), he could not be found guilty of
felony murder because he was not Boykin’s actual killer, had not
aided or abetted the kidnapping or robbery of Boykin with the
intent to kill and had not been a major participant in the
underlying felonies who had acted with reckless indifference to
human life.
The prosecutor filed an opposition to resentencing on
March 14, 2019, arguing the jury’s special-circumstance felony-
murder finding pursuant to section 190.2, subdivisions (a)(17)
and (d), rendered Paulino ineligible for resentencing as a matter
of law. The memorandum attached as exhibits the minute order
from Paulino’s January 26, 2012 sentencing hearing and a copy of
a now-superseded version of CALCRIM No. 703, the felony-
murder special-circumstance instruction, developed for use
sometime after the 2015 decision in Banks, supra, 61 Cal.4th
788—that is, three years after Paulino’s trial. The instruction
actually given at Paulino’s trial was not provided to the court.4
On March 15, 2019, without allowing time for Paulino’s
counsel to file a reply to the prosecutor’s memorandum and
without appearances by any party, the superior court denied the
petition, finding Paulino ineligible for resentencing based on the

4 The version of CALCRIM No. 703 read to Paulino’s jury
stated, without elaboration, “A person acts with reckless
indifference to human life when he or she knowingly engages in
criminal activity that he or she knows involves a grave risk of
death.”

5
jury’s special circumstance finding, which not only had been
affirmed on appeal, but also, according to the court, had been
unsuccessfully challenged in 2016 by a petition for writ of habeas
corpus following the Supreme Court’s decision in Banks, supra,
61 Cal.4th 788.5 As an independent ground for denying the
petition, the court ruled Senate Bill 1437 and section 1170.95 are
unconstitutional—an argument the Attorney General does not
advance on appeal.6
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder (People v. Gentile (2020) 10 Cal.5th 830, 838-839

5 In its ruling the superior court stated, “In 2016, Paulino filed
a petition for writ of habeas corpus and asserted the jury’s special
circumstances finding should be voided due to the passage of People
v. Banks (2015) 61 Cal.4th 788, 803. On April 28, 2016, the Court
rejected his claim and held his participation was substantial and
clearly qualified as the acts of a ‘major participant’ in the special
circumstance murder in this case. The Court is unaware of any
attempt to appeal that decision[,] and it would appear to constitute a
final decision on this issue.” Neither the petition referred to by the
court nor the court’s order denying it is part of the record on appeal.
6 The superior court’s constitutional concerns have been
thoroughly considered and persuasively rejected in a number of
comprehensive opinions (e.g., People v. Marquez (2020)
56 Cal.App.5th 40; People v. Johns (2020) 50 Cal.App.5th 46;
People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270;
People v. Lamoureux (2019) 42 Cal.App.5th 241) and need not be
addressed yet again by this court.

6
(Gentile))7 and significantly limited the felony-murder exception
to the malice requirement for murder, permitting a murder
conviction for a death that occurred during the commission of
certain serious felonies only when the defendant was the actual
killer, aided or abetted the underlying felony with the intent to
kill, or was a major participant in the felony and acted with
reckless indifference to human life. (See, e.g., People v. Rodriguez
(2020) 58 Cal.App.5th 227, 236, review granted Mar. 10, 2021,
S266652; People v. Bascomb (2020) 55 Cal.App.5th 1077, 1080.)
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 the
petitioner 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.)

7 New section 188, subdivision (a)(3), provides, “Except as
stated in subdivision (e) of Section 189 [governing felony murder],
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.” By
requiring proof of malice except in cases of felony murder,
Senate Bill 1437 thus eliminated natural and probable
consequences liability for murder “regardless of degree.” (Gentile,
supra, 10 Cal.5th at pp. 848, 851.)

7
 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
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.”
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].)8

8 The disagreement between Verdugo, supra, 44 Cal.App.5th
320, review granted, and the many subsequent cases that have
agreed with our interpretation of section 1170.95, subdivision (c),
on the one hand, and People v. Cooper, supra, 54 Cal.App.5th 106,

8
 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, supra, 58 Cal.App.5th at p. 230,
review granted; People v. Lopez (2020) 56 Cal.App.5th 936, 949,
review granted Feb. 10, 2021, S265974; but see People v. Duke
(2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 2021,
S265309 [prosecutor must only prove a reasonable jury could find
the defendant guilty of murder with the requisite mental state;
“[t]his is essentially identical to the standard of substantial
evidence”].)9 The prosecutor and petitioner may rely on the

review granted, on the other, will likely be resolved by the
Supreme Court in People v. Lewis (2020) 43 Cal.App.5th 1128,
review granted March 18, 2020, S260598, in which briefing and
argument have been 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)?”
9 In granting review in People v. Duke, S265309, the
Supreme Court limited the issue to be briefed and argued to the
following: “Can the People meet their burden of establishing a
petitioner’s ineligibility for resentencing under Penal Code
section 1170.95, subdivision (d)(3) by presenting substantial
evidence of the petitioner’s liability for murder under Penal Code
sections 188 and 189 as amended by Senate Bill No. 1437
(Stats. 2018, ch. 1015), or must the People prove every element of

9
record of conviction or offer new or additional evidence to meet
their 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.)
2. Paulino May Challenge the Special Circumstance
Finding in a Section 1170.95 Petition
a. Banks and Clark
Section 189, subdivision (e), which permits a felony-murder
conviction only when specified facts relating to the defendant’s
individual culpability have been proved, incorporates in
subdivision (e)(3) the same requirements for proving the
defendant acted with reckless indifference to human life as a
major participant in one of the identified serious felonies as
necessary for a felony-murder special-circumstance finding under
section 190.2, subdivision (d). The factors properly considered in
assessing such a felony-murder special-circumstance finding were
clarified in Banks, supra, 61 Cal.4th 788 and Clark, supra,
63 Cal.4th 522, several years after Paulino’s retrial and
conviction.
In Banks the Supreme Court 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? 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

liability for murder under the amended statutes beyond a
reasonable doubt?”

10
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, supra, 61 Cal.4th at p. 803, fn. omitted.)
In both 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.) As
further refined in Clark, “reckless indifference” “encompasses
both subjective and objective elements. The subjective element is
the defendant’s conscious disregard of risks known to him or
her. . . . [R]ecklessness is also determined by an objective
standard, namely what ‘a law-abiding person would observe in
the actor’s situation.’” (Clark, supra, 63 Cal.4th at p. 617.)
The Supreme Court in Clark identified a series of
considerations relevant to determining whether a defendant had
acted with reckless indifference to human life (with some obvious
overlap with the major-participant factors specified in Banks).
Among others, was the defendant aware that guns would be used;
did the defendant himself or herself use a gun; did the defendant
have an opportunity to reduce the overall risk of violence during
the felony or to aid the victim; did the defendant know his or her
cohorts were likely to use lethal force? (Clark, supra, 63 Cal.4th
at pp. 618-622.) Specifically with respect to the facts before it,
the Clark Court emphasized, “[W]hile the fact that a robbery
involves a gun is a factor beyond the bare statutory requirements
for first degree robbery felony murder, this mere fact, on its own
and with nothing more presented, is not sufficient to support

11
a finding of reckless indifference to human life for the felony-
murder aider and abettor special circumstance.” (Id. at p. 618.)10
b. The jury’s pre-Banks/Clark felony-murder special-
circumstance finding does not preclude relief as a
matter of law
The felony-murder special-circumstance allegation required
the jury to find that Paulino had acted with reckless indifference
to human life and as a major participant in the robbery-
kidnapping that resulted in Boykin’s death (§ 190.2,
subds. (a)(17), (d)). The Attorney General argues the jury’s
finding precludes relief under section 1170.95 as a matter of law
and insists any challenge to the evidentiary support for that

10 The Supreme Court in Banks and Clark did not expressly
require that juries be instructed on the factors it had identified.
Optional language describing those factors has been added to
CALCRIM No. 703; and the bench notes expressly direct the trial
court to determine whether the Banks and Clark factors “need be
given.” Accordingly, it is not necessarily the case that a post-
Banks/Clark jury will have received instructions that differ from
those given to a pre-Banks/Clark jury that made a major
participant/reckless indifference finding. Nonetheless, posttrial,
appellate and postconviction review of a felony-murder special-
circumstance finding after Banks and Clark must consider the
factors, issues and questions posited in those cases. (See, e.g.,
In re Scoggins (2020) 9 Cal.5th 667, 671 [habeas petitioner’s
conduct did not support a finding of reckless indifference to
human life under Banks and Clark notwithstanding affirmance
on direct appeal of a pre-Banks and Clark robbery-murder
special-circumstance finding]; In re Bennett (2018)
26 Cal.App.5th 1002 [granting habeas relief and vacating
robbery-murder special circumstance finding in light of Banks
and Clark notwithstanding prior opinion affirming the special
circumstance finding].)

12
finding based on Banks and Clark had to be made by petition for
writ of habeas corpus. Although this position has been upheld in
several court of appeal decisions, we rejected it in Harris, supra,
__ Cal.App.5th ___, as have several other courts of appeal, as
contrary to the language and intent of section 1170.95.
As we explained in Harris, supra, __ Cal.App.5th at
page ___, a section 1170.95 petition challenges the murder
conviction, not the special circumstance finding. (See People v.
York (2020) 54 Cal.App.5th 250, 260 (York), 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, York, at p. 258 [“[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, Paulino’s
petition is made possible by the changes made to section 189, not
because of the clarifications made in Banks and Clark. (See
§ 1170.95, subd. (a)(3) [allowing petition if “the petitioner could

13
not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019”].)
Similarly, although Paulino’s jury was instructed that to
find true the special-circumstance allegation under section 190.2,
subdivisions (a)(17) and (d), it had to find he aided and abetted
the robbery and kidnapping that led to the victim’s death while
acting as a major participant with reckless indifference to human
life, the same element now found in section 189,
subdivision (e)(3), that pre-Banks/Clark finding, without more,
does not preclude relief under section 1170.95. (See In re
Scoggins (2020) 9 Cal.5th 667, 673-674 [“Where a decision
clarifies the kind of conduct proscribed by a statute, a defendant
whose conviction became final before that decision ‘is entitled to
post-conviction relief upon a showing that his [or her] conduct
was not prohibited by the statute’ as construed in the decision.
[Citation.] “In such circumstances, it is settled that finality for
purposes of appeal is no bar to relief, and that habeas corpus or
other appropriate extraordinary remedy will lie to rectify the
error’”]; York, supra, 54 Cal.App.5th at p. 262, review granted [“a
pre-Banks and Clark special circumstance finding—necessarily
made on the basis of our former, and significantly different,
understanding of what the terms ‘major participant’ in the
underlying felony and ‘reckless indifference’ to human life
meant—does not preclude relief under section 1170.95 as a
matter of law”]; People v. Law (2020) 48 Cal.App.5th 811, 825,
review granted July 8, 2020, S262490 [“the trial court erred by
concluding the special circumstance finding, on its own, rendered
Law ineligible for relief—that is, the court erred by failing to
determine whether Law qualified as a major participant who
acted with reckless indifference to human life under Banks and

14
Clark”]; People v. Torres, supra, 46 Cal.App.5th at p. 1180, review
granted [because no court has affirmed the special circumstance
findings at issue post-Banks and Clark, “[t]here is therefore a
possibility that Torres was punished for conduct that is not
prohibited by section 190.2 as currently understood”]; but see
People v. Nunez (2020) 57 Cal.App.5th 78, 93, review granted
Jan. 13, 2021, S265918) [disagreeing with York, Law and
Torres].)
We disagree with the Attorney General’s additional
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 major participant in the felony, the court
shall vacate the petitioner’s conviction and resentence the
petitioner.” The Attorney General posits a negative pregnant,
contending that this provision means section 1170.95 relief is
available only if a jury’s felony-murder special-circumstance
finding has been successfully overturned by a habeas petition.
But as observed by the court in York in rejecting this argument,
“We find it significant that the Legislature made no provision for
the consequence of a prior finding by a court or a jury that a
petitioner was a major participant and did act with reckless
indifference to human life. If the Legislature had intended such
a finding automatically to preclude eligibility for relief, it could
have said so.” (York, supra, 54 Cal.App.5th at pp. 260-261
(fn. omitted), review granted; see 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

15
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 (2001) 25 Cal.4th 136, 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”].)
c. The record of conviction does not establish Paulino is
ineligible for resentencing as a matter of law
Although the jury’s pre-Banks/Clark felony-murder special-
circumstance finding, without more, does not preclude
resentencing under section 1170.95, the superior court was
authorized to review the record of conviction, including this
court’s opinion affirming Paulino’s convictions, to determine
whether he was ineligible for resentencing under section 1170.95
as a matter of law. (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
Senate Bill 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”].) However, in making that
determination—that is, in evaluating whether a petitioner has
made a prima facie showing he or she is entitled to relief—the
superior court cannot engage in factfinding, as the superior court
did in this case. As the court of appeal explained in People v.
Drayton, supra, 47 Cal.App.5th at page 980, “The trial court
should not evaluate the credibility of the petition’s assertions, but
it need not credit factual assertions that are untrue as a matter

16
of law—for example, a petitioner’s assertion that a particular
conviction is eligible for relief where the crime is not listed
in subdivision (a) of section 1170.95 as eligible for resentencing.
Just as in habeas corpus, if the record ‘contain[s] facts refuting
the allegations made in the petition . . . the court is justified in
making a credibility determination adverse to the petitioner.’
[Citation.] However, this authority to make determinations
without conducting an evidentiary hearing pursuant to
section 1170.95, subdivision (d) is limited to readily ascertainable
facts from the record (such as the crime of conviction), rather
than factfinding involving the weighing of evidence or the
exercise of discretion (such as determining whether the petitioner
showed reckless indifference to human life in the commission of
the crime).” (Accord, People v. Perez (2020) 54 Cal.App.5th 896,
903-904, review granted Dec. 9, 2020, S265254; People v. Nguyen
(2020) 53 Cal.App.5th 1154, 1165-1166.)
Even without attempting to evaluate the significance of a
post-Banks, pre-Clark order denying the petition for writ of
habeas corpus, which was briefly described by the superior court
in its ruling,11 Paulino’s status as a major participant in the

11 As discussed, neither the petition for writ of habeas corpus
nor the superior court’s order is in the appellate record. Without
providing any additional detail about that proceeding, the
Attorney General, while stating the issue “is not necessarily
based on law of the case or collateral estoppel,” nonetheless
argues, “A defendant’s prior failure to obtain Banks/Clark relief
on habeas review necessarily means the existing special
circumstance conviction remains in effect.” (But see Gomez v.
Superior Court (2012) 54 Cal.4th 293, 305, fn. 6 [“the summary
denial of a habeas corpus petition does not establish law of the
case and does not have a res judicata effect in future

17
kidnapping-robbery of Boykins seems irrefutable: At the outset
of the crime, he used his car to block Jones and Boykins in the
motel parking lot so his confederates could capture Boykins.
Once Boykins was in Paulino’s car, Paulino used duct tape to
restrain Boykins and drove around while the other two men
searched Boykins for cash. Then Paulino kept Boykins captive,
rather than releasing him, while the other two men searched
Boykins’s home. Finally, at Hemsley’s direction Paulino drove
the group to a secluded area near a freeway off-ramp, where
Hemsley shot Boykins multiple times.
The evidence of Paulino’s reckless indifference to human
life when viewed in light of Clark, supra, 63 Cal.4th 522 is not
nearly as clear. Most significantly, Paulino consistently
insisted—during police interviews and again when testifying at
trial—that he tried to persuade Hemsley and McKenzie to let
Boykins go free once they learned he had nothing worthwhile to
steal and that his continued participation in holding Boykins and
driving to the murder site was prompted by his own fear of the
other two perpetrators. In addition, although Paulino was
carrying a gun, he testified he never took it out during the course
of the robbery-kidnapping and also testified in the prior robbery
he had committed with Hemsley the victim had neither been
beaten nor shot. That testimony, not contradicted at trial, was
not inconsistent with a pre-Banks/Clark finding of reckless
indifference, but precludes a finding, as a matter of law, that
Paulino was willing to assist in killing Boykins if necessary to
successfully complete the robbery. (See Clark, at p. 617 [reckless
indifference encompasses a willingness to assist another in

proceedings”]; People v. Torres, supra, 46 Cal.App.5th at p. 1180,
fn. 6, review granted [same].)

18
killing to achieve a particular goal, even if the victim’s death was
not specifically intended].) Factfinding following an evidentiary
hearing is necessary to determine whether Paulino could be
convicted of felony murder under the current version of
section 189, subdivision (e), and, therefore, is ineligible for relief
under section 1170.95.
DISPOSITION
The order denying Paulino’s section 1170.95 petition is
reversed, and the matter remanded with directions to issue an
order to show cause and to proceed in accordance with
section 1170.95, subdivision (d).

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

19