In re Contreras CA5

Filed 6/16/21 In re Contreras CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

In re F078975

RUBEN CONTRERAS (Super. Ct. No. VHC376176)

On Habeas Corpus.

THE COURT*
APPEAL from the judgment of the Superior Court of Tulare County. Nathan D.
Ide, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Petitioner.
Xavier Becerra and Rob Bonta, Attorneys General, Michael P. Farrell, Assistant
Attorney General, Eric L. Christoffersen, Louis M. Vasquez, Lewis A. Martinez, and
Amanda D. Cary, Deputy Attorneys General, for Respondent.
-ooOoo-

* Before Hill, P.J., Detjen, J. and Peña, J.
 INTRODUCTION
In 2004, a jury convicted petitioner Ruben Contreras of first degree murder (Pen.
Code,1 § 187), with the special circumstance that the murder was committed during the
commission of a robbery (§§ 190.2, subd. (a)(17), 211).2 (People v. Contreras (Apr. 21,
2006, F047366) [nonpub. opn.] (Contreras).)3 For this offense, he was sentenced to a
term of life without the possibility of parole. (Contreras, F047366.)
In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95.4
The court summarily denied the petition on the ground that petitioner was a major

1 Undesignated statutory references are to the Penal Code.
2 Petitioner was convicted of additional offenses, as described below.
3 We take judicial notice of our prior opinion in petitioner’s direct appeal, which
was relied on by the trial court and is discussed at length by the parties. (Evid. Code,
§§ 452, subd. (a), 459, subd. (a).)
4 Petitioner filed his resentencing petition on a form petition for writ of habeas
corpus, but made clear he was seeking relief pursuant to the procedure outlined in section
1170.95. The court addressed the resentencing petition pursuant to section 1170.95, but
continued to caption the petition as one for a writ of habeas corpus and denied it as such.
In his notice of appeal, petitioner stated he was appealing from “Denial of Petition to
Vacate Conviction & Sentence (Cal.PC § 1170.95).”
In a noncapital case, a habeas petitioner cannot appeal from an order denying
relief, but rather must file a new petition in a higher court. (§ 1506; In re Reed (1983) 33
Cal.3d 914, 918, fn. 2, overruled on another ground in In re Alva (2004) 33 Cal.4th 254,
264; In re Hochberg (1970) 2 Cal.3d 870, 875, disapproved on another ground in In re
Fields (1990) 51 Cal.3d 1063, 1070, fn. 3; cf. § 1509.1; Briggs v. Brown (2017) 3 Cal.5th
808, 825.) However, an order granting or denying relief pursuant to section 1170.95 is
appealable, pursuant to section 1237, subdivision (b), as an order after judgment affecting
a party’s substantial rights. (See People v. Larios (2019) 42 Cal.App.5th 956, 961,
review granted Feb. 26, 2020, S259983 [an “order denying a petition for recall of
sentence and resentencing pursuant to . . . section 1170.95 . . . is appealable pursuant to
section 1237, subdivision (b), as an order after judgment affecting the substantial rights
of the defendant”].)
Regardless of how the matter is titled, petitioner’s claims are reviewable by us on
the merits. The People do not contend otherwise and have elected to brief the matter as
though it were an appeal from the denial of a petition brought under section 1170.95.
However, because the instant appeal is from an order styled as an order denying a petition

2.
participant in the underlying felony who acted with reckless indifference to human life, a
disqualifying factor pursuant to section 1170.95, subdivision (a)(3). The court also found
petitioner ineligible for resentencing on the ground that this court had determined the trial
evidence supported a finding that petitioner intended to kill the victim.
Petitioner appeals from the court’s denial of his petition. He asserts that his
petition was facially sufficient to establish that he fell within the provisions of section
1170.95, and the court therefore erred by failing to appoint counsel and in not affording
petitioner the opportunity to present additional argument and evidence at an evidentiary
hearing. He further argues the jury’s special circumstance finding did not render him
ineligible for resentencing, and this court’s determination that he had the intent to kill the
victim is not dispositive of his petition.
We conclude that any error by the court in failing to appoint counsel was harmless
because the jury’s special circumstance finding establishes petitioner is ineligible for
resentencing as a matter of law. For the same reason, we conclude petitioner was not
entitled to an evidentiary hearing. Because this conclusion is dispositive, we do not
consider whether the trial court properly concluded that our prior opinion established
petitioner had the intent to kill. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY

“After a jury trial, [petitioner] was convicted of first degree murder
(Pen.Code, []§ 187, subd. (a)), residential robbery (§ 211), and residential
burglary (§ 459). The jury found true the special circumstance allegations
that the murder was committed during the commission of a burglary and
robbery (§ 190.2, subd. (a)(17)), but found not true the personal arming
allegation (§ 12022, subd. (b)(1)). The trial court sentenced [petitioner] to
a six-year term on the residential robbery conviction and a consecutive
indeterminate term of life without the possibility of parole on the murder
conviction. A four-year term on the residential burglary conviction was

for writ of habeas corpus, we maintain the single title format applicable to habeas corpus
proceedings. (Cal. Style Manual (4th ed. 2000) § 6:32.)

3.
 imposed and stayed, as was a $2,000 restitution fine imposed pursuant to
section 1202.45.” (Contreras, supra, F047366, fn. omitted.)
A. Factual Background
In petitioner’s direct appeal, we summarized the evidence leading to these
convictions as follows:

“On June 17, 2001, [petitioner], Carlos E., Jesse L., and Elena
Rodriguez went to visit Kelly Hiser and April Crone at the Lindsay Motor
Lodge, where they lived. Rodriguez testified that, while the group drank
beer behind Hiser’s carport, Michael Loveland, a mentally challenged man
who also lived at the motel, was collecting cans and bottles nearby from the
motel trash bins. Rodriguez bought cigarettes from Loveland, who
mentioned that he had marijuana.

“Rodriguez testified that, when Loveland left the carport, [petitioner]
said to the group, ‘Well, let’s fuck him up. Let’s fuck him up.’ Rodriguez
described the statement as having been made in a joking manner. Crone
left soon after. About one half hour later, [petitioner] and Carlos left to use
the restroom, leaving Rodriguez and Jesse in the carport. Jesse remained
for several minutes and left. Rodriguez walked to the front of the motel
and talked with Hiser.

“Rodriguez then decided to leave the motel because Carlos, her
boyfriend, had left her in the carport. As she walked away, she came across
[petitioner], Carlos, and Jesse near some train tracks behind the motel.
[Petitioner] was carrying his shirt, and, at trial, Rodriguez described him as
‘kind of quiet’ and ‘[k]ind of nervous.’ [Petitioner] told the group,
‘Whatever happens, whoever goes down goes down alone.’ Rodriguez and
Carlos then parted company with [petitioner] and Jesse.

“The following day, June 18, [petitioner] went again to the motel to
visit Hiser and Crone. Crone testified that she overheard [petitioner] tell
Hiser there was ‘something wrong’ with Loveland and that Loveland would
not be coming out of his room. [Petitioner] told Hiser that he had ‘cleaned
up the whole mess and not to say anything’ to the police about his presence
at the motel. Hiser testified that [petitioner] told her he thought there was
something wrong with ‘the man in room 14,’ and offered her $50 to keep
quiet about his presence at the motel. [Petitioner] then pointed his finger at
her as if he were ‘firing a gun’ at her.

“On June 19, [petitioner] returned to the motel to visit another
friend, Phillip Hernandez. [Petitioner] asked Hernandez if he had seen

4.
Loveland around the motel. When Hernandez asked [petitioner] why he
was asking, [petitioner] stated, ‘Oh, no reason.’ [Petitioner] then told
Hernandez that Loveland had been stabbed and that [petitioner] believed
Loveland was dead, adding, ‘I’m in a whole lot of trouble.’

“On June 20, Loveland’s mother found his body in his motel room.
His VCR, telephone, and jewelry were missing from the room.

“Officers responding to the scene found a large amount of apparent
blood spatter around the room. A hammer head was found on the corner of
the bed; the hammer handle was located between the dresser and the bed.
Shoe tracks were discovered on the stove top under the kitchen window,
which led to the back of the motel. Carlos’s fingerprints were found on a
beer bottle in the room.

“Loveland’s body was severely beaten. He suffered three blows to
the back of his head and was stabbed four times in the torso. An autopsy
determined that he died from severe blunt force trauma to his head.

“Sergeant Kevin Cotton interviewed [petitioner] about Loveland’s
homicide on the same day the body was discovered. [Petitioner] gave
Sergeant Cotton two separate statements. In the first, [petitioner] alleged
he met up with ‘Jose’ and ‘Tony’ at the motel on June 17, but knew nothing
about the murder.

“In his second statement, [petitioner] changed his story and stated he
had been at the motel with Carlos, Jesse, and Rodriguez on the night of the
murder, drinking beer. [Petitioner] admitted getting some cigarettes from
Loveland, who had told the group he had marijuana in his room.
[Petitioner] told Sergeant Cotton that, when Loveland left, he and Carlos
discussed robbing Loveland for his money and drugs by going into his
room to ‘knock him out and take his stuff.’ According to [petitioner], once
in Loveland’s room, Loveland offered him marijuana and, as he reached for
the pipe, Carlos hit Loveland on the top of the head with a hammer. The
hammer broke on impact, at which point Carlos got a baseball bat and
proceeded to hit Loveland another five or six times. [Petitioner] watched as
Carlos beat Loveland. After Carlos beat Loveland, Jesse walked into the
room. Jesse then hit Loveland several times in the torso area where
Loveland’s stab wounds were found.

“[Petitioner], Carlos, and Jesse then ransacked Loveland’s motel
room and took the bat, VCR, and marijuana bong. They secured the front
door with the security chain and climbed out the kitchen window to the

5.
back of the motel. [Petitioner] told Sergeant Cotton he felt Loveland’s
neck for a pulse, but was unable to locate one.

“[Petitioner] admitted to Sergeant Cotton that he had offered Hiser
$50 to ‘[k]eep her mouth shut,’ stating he was motivated by ‘greed’
because he wanted Loveland’s marijuana. [Petitioner] also admitted
speaking to Hernandez and telling him of the assault.

“Defense

“At trial, [petitioner’s] defense was that he did not actually agree to
rob Loveland, and was thus not guilty of the felonies underlying the felony
murder charge. Instead, [petitioner] testified that he believed Carlos was
joking when he asked him if he wanted to rob Loveland for his marijuana,
and he jokingly agreed. One half hour later, the two went to Loveland’s
motel room to use the restroom. Before entering, Carlos again asked him if
he wanted to rob Loveland. When [petitioner] declined, Carlos grabbed
him by the shirt collar and told him, ‘ “You’re going to help me take his
shit or I’m going to fuck you up.” ’ Carlos ‘more or less’ pushed
[petitioner] through the front door of Loveland’s room.

“[Petitioner] testified that, once in the room, he used the restroom.
When he came out, [petitioner] smoked the pipe offered him by Loveland.
While [petitioner] was smoking, Carlos got up from his chair and hit
Loveland on the top of the head with a hammer. The hammer broke, so
Carlos got a baseball bat and continued to hit Loveland about five times on
the head. [Petitioner] was ‘shocked’ and ‘stunned,’ but did not do anything
during the attack. Afterwards, Carlos ransacked Loveland’s room and took
some of his belongings.

“Jesse then walked into the motel room and punched Loveland
several times in the torso. [Petitioner] did not say anything while Jesse
punched Loveland. [Petitioner] tried to find a pulse on Loveland’s neck,
but couldn’t. The three climbed out the kitchen window. Carlos was
carrying a bat and either Jesse or Carlos had Loveland’s VCR.

“[Petitioner] testified that he did not call the police because he did
not want to be labeled a ‘rat.’ [Petitioner] denied taking any of Loveland’s
property. He acknowledged lying to Sergeant Cotton when he was first
questioned because he did not ‘want to be a rat at first.’ [Petitioner]
testified that he did not know Carlos was going to beat Loveland with the
hammer and bat, and he hoped Carlos was not actually going to rob
Loveland.

6.
 “On cross-examination, [petitioner] acknowledged that he told
investigating officers a number of times that he went into Loveland’s motel
room with the intent to rob him, but claimed to have said this ‘so they
wouldn’t think [he] was lying.’ [Petitioner] did not tell Sergeant Cotton
that Carlos had threatened him before they went into Loveland’s room,
claiming he did not want to get into ‘more trouble.’ He acknowledged
telling Sergeant Cotton that he had ransacked Loveland’s room but, at trial,
testified that he did not actually do so. He also agreed with Sergeant
Cotton’s suggestion that he had been looking for ‘weed or money’ in
Loveland’s room. At trial, [petitioner] responded that he had agreed
because ‘[t]hat’s what you look for in a robbery.’

“Dr. Madeline Daniels, a forensic psychologist, interviewed
[petitioner] in jail and conducted numerous tests on him. She determined
that [petitioner] was learning impaired, he had attention deficit
hyperactivity disorder, and he had a dependent personality disorder. He
also suffered from an anxiety disorder, methamphetamine abuse, and
possible posttraumatic stress disorder. Dr. Daniels testified that
[petitioner’s] involvement in the crimes was consistent with his personality
disorder, but she could not discern whether his involvement was because he
was afraid of Carlos or because he did not want to appear weak to his
friends.

“On cross-examination, Dr. Daniels acknowledged that [petitioner]
had no indications of obsession, compulsion, phobias, delusions or
hallucinations, and his IQ was in the average range.” (Contreras, supra,
F047366.)
B. Direct Appeal
In his direct appeal, petitioner argued the court erred in failing to give a duress
instruction (CALJIC No. 4.40), failing to give an introductory instruction regarding the
special circumstance (CALJIC No. 8.80.1), declining to stay the sentence on his robbery
conviction (§ 654), and imposing a parole revocation fine (§ 1202.45). (Contreras,
supra, F047366.) This court agreed the parole revocation fine was inapplicable and
ordered the abstract of judgment amended to remove the fine, but otherwise affirmed.
(Ibid.)
Relevant here, this court concluded petitioner was not prejudiced by the court’s
failure to give CALJIC No. 8.80.1, “which defines (1) the mental state required for a

7.
felony-murder special circumstance when the defendant is not the actual killer; (2) the
prosecution’s burden of proof as to the special circumstance; and (3) the requirement that
the jury agree unanimously as to whether the special circumstance is true or untrue.”
(Contreras, supra, F047366.) We stated as follows: “Because it can be inferred from the
jury’s finding on the personal use allegation that the jury believed [petitioner] was not the
actual killer, we next look to see if the evidence demonstrates that [petitioner] had either
(1) an ‘intent to kill’ or (2) aided and abetted the robbery as a ‘major participant’ and
acted with ‘reckless indifference to human life,’ as required under the special
circumstance finding. (§ 190.2, subds. (c), (d).)” (Ibid.) We then stated, “[W]e find that
no reasonable jury, properly instructed, would have failed to find [petitioner] acted with
reckless indifference to human life and was a major participant in the robbery.” (Ibid.)
After summarizing the evidence relevant to that conclusion, we explained, “[Petitioner’s]
statements to Sergeant Cotton and his own testimony at trial show that, even if he was not
the actual killer, and even if his intent to kill was not resolved under other properly given
instructions, he was a major participant in the robbery and burglary and his actions
demonstrated a reckless indifference to human life.” (Ibid.)
With regard to petitioner’s claim that his sentence for robbery should have been
stayed pursuant to section 654, this court stated, “[W]e disagree with [petitioner] that no
substantial evidence sustains the court’s implicit determination that he held more than
one objective when he committed the crimes against Loveland. Rather, the evidence
supports a finding of separate intents to both kill and rob Loveland.” (Contreras, supra,
F047366.) We further noted, “While the jury did not find appellant personally used the
bat, hammer or knife, the court was free to determine that appellant, as an aider and
abettor, had the same intent to kill Loveland.” (Ibid.)
C. Petition for Resentencing
On February 7, 2019, petitioner filed a petition for writ of habeas corpus, seeking
resentencing pursuant to section 1170.95. In the form petition, petitioner stated that a

8.
complaint, information, or indictment was filed against him that allowed him to be
prosecuted under a theory of felony murder; he was convicted of first degree murder at
trial; and he could not be convicted of first or second degree murder because of changes
to section 188 or 189.
On February 20, 2019, the court summarily denied the petition as follows:

“In order to be eligible for relief under [section] 1170.95, Petitioner
must satisfy all three preliminary conditions under [section] 1170.95(a).
The third condition, [section] 1170.95(a)(3), requires that the petitioner
could not be convicted of first or second degree murder because of changes
to Section 188, or 189. Petitioner does not satisfy this third requirement,
because he could have been convicted under revised [section] 189(e)(3).
That section states, for the felonies listed in [section] 189(a) (first degree
eligible crimes), Petitioner would be liable for murder if the person was a
major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section 190.2.
In the present case, not only could Petitioner have been convicted under
[section] 189(e)(3) based upon the facts of this case, the Fifth District Court
of Appeal has already affirmatively found Petitioner was a major
participant in the underlying crime, and acted with reckless indifference to
human life. As stated by the Court of Appeal, ‘Because it can be inferred
from the jury’s finding on the personal use allegation that the jury believed
[petitioner] was not the actual killer, we next look to see if the evidence
demonstrates that [petitioner] had either (1) an “intent to kill” or (2) aided
and abetted the robbery as a “major participant” and acted with “reckless
indifference to human life,” as required under the special circumstances
finding.’ [Citation.]

“In addressing these two issue[s], the Fifth District Court of Appeal
stated, ‘Similarly here, we find that no reasonable jury, proper[l]y
instructed, would have failed to find [petitioner] acted with reckless
indifference to human life and was a major participant in the robbery.’
[Citation.] ‘Appellant’s statements to Sergeant Cotton and his own
testimony at trial show that, . . . he was a major participant in the robbery
and burglary and his actions demonstrated a reckless indifference to human
life. In sum, we find the instructional error harmless in this case.’
[Citation.]

“As to the intent to kill factor, the Fifth District has already found
that Petition[er] had the requisite intent to kill under the murder statutes.

9.
 ‘Rather, the evidence supports a finding of separate intents to both kill and
rob Loveland.’ [Citation.]

“Because the Fifth District Court of Appeal has already made
findings in Petitioner’s case, Petitioner is not eligible for relief because
Petitioner harbored the intent to kill by aiding and abetting the actual killer
in the commission of the murder, and was a major participant in the
underlying felony who acted with reckless indifference to human life.
Petitioner has failed to make a prima facie showing that he is entitled to
relief.

“Petitioner’s Writ of Habeas Corpus is therefore denied as a matter
of law.”
This timely appeal followed.
DISCUSSION
I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95
“ ‘Effective January 1, 2019, Senate Bill [No.] 1437 amended murder liability
under the felony-murder and natural and probable consequences theories.’ ” (People v.
Daniel (2020) 57 Cal.App.5th 666, 672, review granted Feb. 24, 2021, S266336
(Daniel).) The bill accomplished this task by adding three separate provisions to the
Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend
the natural and probable consequences doctrine, “ ‘[t]he bill redefined malice under
section 188 to require that the principal acted with malice aforethought. Now, “[m]alice
shall not be imputed to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)’ ” (Daniel, at p. 672; accord, Gentile, at pp. 842-843.) Second, to
amend the felony-murder rule, the bill added section 189, subdivision (e):

“A participant in the perpetration or attempted perpetration of [qualifying
felonies] in which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The person
was a major participant in the underlying felony and acted with reckless

10.
 indifference to human life, as described in subdivision (d) of Section
190.2.”5 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill “added section 1170.95 to provide a procedure for those convicted of
felony murder or murder under the natural and probable consequences doctrine to seek
relief under the two ameliorative provisions above.” (Gentile, at p. 843.)
“Section 1170.95 lays out a process for a person convicted of felony murder or
murder under a natural and probable consequences theory to seek vacatur of his or her
conviction and resentencing. First, the person must file a petition with the trial court that
sentenced the petitioner declaring, among other things, that the petitioner ‘could not be
convicted of first or second degree murder because of changes to Section 188 or 189.’
(§ 1170.95, subd. (a)(3); see § 1170.95, subd. (b)(1)(A).) Then, the trial court must
‘review the petition and determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of th[e] section.’ (§ 1170.95, subd. (c).) If so,
the trial court must issue an order to show cause and hold a hearing to determine whether
to vacate the murder conviction and to resentence the petitioner on any remaining counts.
(§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95,
subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.’ (Ibid.)” (Gentile,
supra, 10 Cal.5th at p. 853.)
“Since Senate Bill [No.] 1437 was adopted and its mechanism for retroactive
application has come into play through the filing of section 1170.95 petitions, many
questions have arisen about that process and percolated up through appeals from
resentencing decisions.” (People v. Duchine (2021) 60 Cal.App.5th 798, 811, fn.

5 Additionally, section 189 was amended to allow for felony-murder liability where
the victim is a peace officer. (§ 189, subd. (f); accord, Daniel, supra, 57 Cal.App.5th at
p. 672, review granted.)

11.
omitted.) Those questions pertain primarily to section 1170.95, subdivision (c)
(hereinafter sometimes referred to as “subdivision (c)”), which “addresses the procedure
by which a trial court determines whether the petitioner is entitled to an evidentiary
hearing.” (People v. Cooper (2020) 54 Cal.App.5th 106, 114, review granted Nov. 10,
2020, S264684 (Cooper).) Section 1170.95, subdivision (c) provides in full:

“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 within 60 days of service of the petition and the petitioner may
file and serve a reply within 30 days after the prosecutor[’s] response is
served. These deadlines shall be extended for good cause. 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.”
Courts of Appeal are divided on several questions arising under subdivision (c).
Relevant here, the Courts of Appeal are split regarding when the right to counsel arises
under subdivision (c). Our Supreme Court has granted review to decide this question.
(See People v. Lewis (2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020,
S260598 (Lewis).) In the meantime, a court has held that the right to counsel attaches
immediately upon the filing of a facially sufficient petition that includes all the
information required under section 1170.95, subdivision (b). (Daniel, supra, 57
Cal.App.5th at p. 673, review granted; Cooper, supra, 54 Cal.App.5th at pp. 109, 114,
review granted.) That court construed the first sentence of subdivision (c) to state a
general rule, with the rest of the subdivision establishing a process for complying with
that rule: “ ‘Appoint counsel, if requested. Wait for the prosecutor’s required response
and the petitioner’s optional reply. If the petitioner makes a prima facie showing, issue
an order to show cause.’ ” (Cooper, at p. 115.)
Other courts have read the two references to a “prima facie showing” in the first
and fifth sentences of subdivision (c) as requiring two different prima facie reviews – one

12.
to determine whether the petitioner “falls within the provisions” of the statute and one to
determine whether the petitioner is “entitled to relief” – with each review to occur at a
different chronological point in time. (Lewis, supra, 43 Cal.App.5th at p. 1140, review
granted; see People v. Verdugo (2020) 44 Cal.App.5th 320, 328-333, review granted
Mar. 18, 2020, S260493 (Verdugo).) Under this reading of the statute, courts have
concluded that a petitioner is entitled to counsel (as well as the other procedures provided
for under subd. (c)) only after the trial court determines the petitioner has made the
threshold showing required to satisfy the first prima facie review. (Lewis, at p. 1140;
Verdugo, at p. 332.)
Courts of Appeal also are divided on the question of whether a trial court may
look beyond a facially sufficient petition to determine whether a defendant has made a
prima facie showing that he or she falls within the provisions of the statute and is entitled
to relief. Our Supreme Court also granted review to decide this question in Lewis, supra,
43 Cal.App.5th 1128. In the meantime, some courts have held that a trial court may
examine the petition, as well as the court’s own files, the record of conviction, or an
appellate court opinion from the petitioner’s direct appeal. (Lewis, at p. 1138, review
granted; see Verdugo, supra, 44 Cal.App.5th at p. 333, review granted.) Another court
has held that a trial court may not rely on the record of conviction to deny a facially
sufficient petition, and instead may only rely on the record of conviction to deny a
petition “after deeming it facially sufficient, appointing counsel, and receiving briefing
from the parties.” (Daniel, supra, 57 Cal.App.5th at p. 677, review granted; see Cooper,
supra, 54 Cal.App.5th at pp. 125-126, review granted.)
II. Petitioner is Ineligible for Resentencing
Petitioner contends the trial court erred by summarily denying his facially
sufficient petition without appointing counsel or requiring the parties to brief the issue of
his eligibility for relief under the procedures set out in section 1170.95, subdivision (c).
We conclude we need not resolve whether the facially sufficient petition gave rise to

13.
petitioner’s right to appointed counsel and other procedural rights under subdivision (c)
because the error here, if any, was harmless. This is because the jury’s special
circumstance finding establishes that petitioner is ineligible for resentencing as a matter
of law.
Section 189, as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.), now
permits a felony-murder conviction only when specified facts relating to the defendant’s
individual culpability have been proved. Among such circumstances, a felony-murder
conviction is permissible if the defendant was a major participant in the underlying
felony and acted with reckless indifference to human life, as described in subdivision (d)
of section 190.2. (§ 189, subd. (e).) Here, the jury found true a felony-murder special
circumstance pursuant to section 190.2, subdivision (a)(17), which imposes a sentence of
death or life without the possibility of parole for a murder committed during the
commission, or attempted commission, of a robbery. (§ 190.2, subd. (a)(17).)
(Contreras, supra, F047366.) To make such a finding, the jury was required to find that
petitioner acted “with reckless indifference to human life and as a major participant” in
aiding or abetting the commission of the underlying felony. (§ 190.2, subd. (d); People v.
Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419.) The jury therefore made the
findings necessary to sustain a felony-murder conviction under section 189, as amended
by Senate Bill No. 1437 (2017-2018 Reg. Sess.). Petitioner is ineligible for resentencing
under section 1170.95 as a matter of law, and he was not prejudiced by the trial court’s
failure to appoint counsel or afford petitioner the other procedures outlined in
subdivision (c).6 (See Daniel, supra, 57 Cal.App.5th at p. 676, review granted [the

6 Petitioner does not argue it was impermissible for the trial court to rely on the
appellate court opinion in determining whether he made a prima facie case for relief,
only that the court could not do so without first appointing counsel and requesting further
briefing. As indicated above, the issue of whether the trial court may consider the
record of conviction in determining whether a petitioner has made a prima facie showing
of eligibility for relief under section 1170.95 is currently pending before our Supreme

14.
petitioner bears the burden of showing it is reasonably probable that, absent error, his or
her petition would not have been summarily denied without an evidentiary hearing]; see
also People v. Watson (1956) 46 Cal.2d 818, 836.)
Nonetheless, petitioner additionally argues that the special circumstance finding,
standing alone, is insufficient to render him ineligible for resentencing as a matter of law.
In support, he relies on People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark), both decided more than 10 years after his
conviction. “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.”
(People v. Gomez (2020) 52 Cal.App.5th 1, 13, fn. 5, review granted Oct. 14, 2020,
S264033 (Gomez).) Courts of Appeal are split on the question of whether a special
circumstance finding entered prior to Banks and Clark renders a petitioner ineligible for
section 1170.95 resentencing relief as a matter of law (see People v. Jones (2020) 56
Cal.App.5th 474, 478-479 [collecting cases], review granted Jan. 27, 2021, S265854
(Jones)), and our Supreme Court has granted review to decide the issue (People v. Strong
(Dec. 18, 2020, C091162) [nonpub. opn.], review granted Mar. 10, 2021, S266606).

Court. (Lewis, supra, 43 Cal.App.5th 1128, review granted.) In the meantime, however,
the Courts of Appeal appear to be in an agreement that, at the very least, the trial court
may rely on the record of conviction to “deny a petition after deeming it facially
sufficient, appointing counsel, and receiving briefing from the parties” (Daniel, supra, 57
Cal.App.5th at p. 677, review granted), particularly where the court’s review of that
record 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 . . . .” (People v. Drayton (2020) 47 Cal.App.5th 965, 980.) We therefore
consider the appellate opinion in petitioner’s prior appeal, to the extent it states the
convictions on which he was convicted, in determining whether petitioner was prejudiced
by the court’s summary denial of his petition.

15.
 Courts which have held that a pre-Banks and Clark felony-murder special-
circumstance finding bars section 1170.95 resentencing relief have reasoned that Banks
and Clark merely clarified the law as it always was. (Jones, supra, 56 Cal.App.5th at
pp. 482, 484, review granted; accord, People v. Nunez (2020) 57 Cal.App.5th 78, 92,
review granted Jan. 13, 2021, S265918; People v. Allison (2020) 55 Cal.App.5th 449,
458.) These courts further note that our Supreme Court does not require juries to be
instructed on the Banks and Clark clarifications. “Rather, while CALCRIM No. 703 now
includes optional language drawn from Banks and Clark regarding the factors a jury may
consider, ‘[t]he bench notes to the instruction state that Banks “stopped short of holding
that the court has a sua sponte duty to instruct on those factors,” and Clark “did not hold
that the court has a sua sponte duty to instruct on those factors.” ’ ” (Nunez, at pp. 92-93;
accord, Jones, at p. 484; Allison, at pp. 458-459.) Thus, these courts found “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.)
These courts have also held that an attack on a special circumstance finding in a
section 1170.95 proceeding effectively constitutes a collateral attack on the judgment.
(People v. Galvan (2020) 52 Cal.App.5th 1134, 1142, review granted Oct. 14, 2020,
S264284; Gomez, supra, 52 Cal.App.5th at p. 16, review granted.) According to these
courts, a petitioner who wishes to argue the special circumstance finding is invalid under
current law must first seek to invalidate that finding through a petition for writ of habeas
corpus before seeking resentencing pursuant to section 1170.95. (Galvan, at p. 1142;
Gomez, at p. 17; Jones, supra, 56 Cal.App.5th at p. 485, review granted.) These courts
reason that a contrary interpretation “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

16.
where the prosecution bears the burden of proving the truth of the finding, beyond a
reasonable doubt, a second time.” (Jones, at p. 485.)
On the other hand, courts that have found a special circumstance finding
insufficient to render a petitioner ineligible for relief have reasoned that Banks and Clark
“construed section 190.2, subdivision (d) in a significantly different, and narrower
manner than courts had previously construed the statute.” (People v. Torres (2020) 46
Cal.App.5th 1168, 1179, review granted June 24, 2020, S262011; accord, People v.
Harris (2021) 60 Cal.App.5th 939, 958, review granted Apr. 28, 2021, S267802.) Thus,
these courts surmised that a petitioner with a pre-Banks and Clark special circumstance
finding may have been convicted based on “conduct that is not prohibited by section
190.2 as currently understood.” (Torres, at p. 1180; accord, Harris, at p. 958; People v.
York (2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954; People v.
Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835.) To the
extent the jury’s finding on a felony-murder special circumstance is legally insufficient
under Banks and Clark, it cannot refute a prima facie showing of entitlement to
resentencing relief. (People v. Secrease (2021) 63 Cal.App.5th 231, 256.) Accordingly,
in considering whether a petitioner is entitled to relief pursuant to section 1170.95, the
trial court must first determine whether “the evidence presented at trial was sufficient to
support the felony-murder special-circumstance finding under Banks and Clark.”
(Secrease, at p. 264.)
We find more persuasive those cases holding that a special circumstance finding
precludes relief as a matter of law. Banks and Clark did not state a new rule of law.
Rather, they relied on the United States Supreme Court’s decisions in Enmund v. Florida
(1982) 458 U.S. 782 and Tison v. Arizona (1987) 481 U.S. 137 to clarify principles that
had long been in existence at the time petitioner was convicted. (See In re Miller (2017)
14 Cal.App.5th 960, 978; accord, People v. Allison, supra, 55 Cal.App.5th at p. 458;
Gomez, supra, 52 Cal.App.5th at p. 13, fn. 5, review granted.) Enmund prohibited

17.
felony-murder liability for a defendant that “did not commit the homicide, was not
present when the killing took place, and did not participate in a plot or scheme to
murder,” and explained that, to be liable for felony murder, the aider and abettor must
himself “kill, attempt to kill, or intend that a killing take place or that lethal force will be
employed.” (Enmund, at pp. 795, 797.) Tison held that, “major participation in the
felony committed, combined with reckless indifference to human life, is sufficient to
satisfy the Enmund culpability requirement.” (Tison, at pp. 151, 158.) As Banks noted,
this language from Tison was later codified by the California electorate in section 190.2,
subdivision (d). (Banks, supra, 61 Cal.4th at p. 800.) To the extent Banks and Clark
illuminated factors a fact finder might consider in determining whether a defendant was a
major contributor who acted with reckless indifference to human life, they drew those
factors from Edmund and Tison. (See Banks, at pp. 801, 803; see also Clark, supra, 63
Cal.4th at pp. 615, 618-623.) These principles existed when petitioner was convicted
and, absent a determination on direct appeal or in habeas that the evidence was
insufficient to support the jury’s finding, there is no basis to conclude petitioner’s jury
applied different standards than those described in Banks and Clark.
Finally, we reject petitioner’s assertion that the summary denial of his petition
violated his constitutional rights to due process and to counsel. To the extent a petitioner
has a right to counsel prior to the issuance of an order to show cause, that right is
statutory, not constitutional, and is susceptible to review for prejudice. (Daniel, supra, 57
Cal.App.5th at pp. 674-676, review granted; accord, People v. Lopez (2019) 38
Cal.App.5th 1087, 1114-1115, review granted Nov. 13, 2019, S258175 [the retroactive
relief afforded by Senate Bill No. 1437 (2017-2018 Reg. Sess.) “ ‘is not subject to Sixth
Amendment analysis’ ”]; see People v. Perez (2018) 4 Cal.5th 1055, 1063-1064.) As we
have already explained, petitioner was not prejudiced by the court’s denial of his petition.
Moreover, due process is implicated when the state attempts to deprive a defendant of
some liberty interest. (Hewitt v. Helms (1983) 459 U.S. 460, 466, abrogated on another

18.
point by Sandin v. Conner (1995) 515 U.S. 472, 483, fn. 5.) But petitioner is
“categorically ineligible for relief under section 1170.95.” (People v. Tarkington (2020)
49 Cal.App.5th 892, 908, review granted Aug. 12, 2020, S263219.) He thus had no
liberty interest in any of the procedures afforded by section 1170.95, subdivision (c).
(See Tarkington, at p. 908.)
In sum, we conclude that petitioner is ineligible for relief as a matter of law, and
any error in failing to appoint counsel or follow the procedures outlined in section
1170.95, subdivision (c) was harmless. (Daniel, supra, 57 Cal.App.5th at p. 677, review
granted; accord, People v. Law (2020) 48 Cal.App.5th 811, 826, review granted July 8,
2020, S262490 [any error in failing to appoint counsel was harmless because counsel
would not have been able to demonstrate petitioner was eligible for resentencing]; People
v. Edwards (2020) 48 Cal.App.5th 666, 675, review granted July 8, 2020, S262481 [any
error in failing to appoint counsel was harmless because petitioner did not fall within the
provisions of § 1170.95 as a matter of law].) In light of this conclusion, we do not
address petitioner’s contention that the court erred in relying on the statement, contained
in our prior opinion, suggesting that substantial evidence supported a finding that
petitioner intended to kill the victim. (See Contreras, supra, F047366.)
DISPOSITION
The order is affirmed.

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