People v. Flores CA2/2

Filed 6/25/21 P. v. Flores CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B308289

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA195400)
v.

PAUL RICHARD FLORES,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County. Michael E. Pastor, Judge. Affirmed.
Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Amanda V. Lopez and
David E. Madeo, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
 This appeal from the denial of a petition for resentencing
under Penal Code1 section 1170.95 presents the same issues we
addressed in People v. Nunez (2020) 57 Cal.App.5th 78, review
granted January 13, 2021, S265918 (Nunez): (1) May the
superior court rely solely on the jury’s felony-murder special-
circumstance finding to deny the petition for failure to make a
prima facie showing that the petitioner falls within the provisions
of section 1170.95?2 and (2) May a defendant challenge a first
degree murder conviction by attacking the validity of the jury’s
felony-murder special-circumstance finding under the California
Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) in
a petition for relief under section 1170.95?
We resolve these issues in accordance with our decision in
Nunez and hold that the superior court may deny a section
1170.95 petition after the prima facie review on the ground that a
defendant convicted of murder with a felony-murder special-
circumstance finding (§ 190.2, subd. (a)(17)) is not, as a matter of

1 Undesignated statutory references are to the Penal Code.
2 The California Supreme Court has granted review of this
issue in People v. Strong, review granted March 10, 2021,
S266606 [“Does a felony-murder special circumstance finding
(Pen. Code, § 190.2, subd. (a)(17)) made before People v. Banks
(2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522
preclude a defendant from making a prima facie showing of
eligibility for relief under Penal Code section 1170.95?”]
( [as of May 26, 2021], archived at
.)

2
law, eligible for resentencing under section 1170.95. (Nunez,
supra, 57 Cal.App.5th at pp. 83, 90–92, rev.gr.; see also People v.
Jones (2020) 56 Cal.App.5th 474, 479, review granted Jan. 27,
2021, S265854 (Jones); People v. Allison (2020) 55 Cal.App.5th
449, 457 (Allison); People v. Murillo (2020) 54 Cal.App.5th 160,
167, review granted Nov. 18, 2020, S264978 (Murillo); People v.
Galvan (2020) 52 Cal.App.5th 1134, 1140–1141, review granted
Oct. 14, 2020, S264284 (Galvan); People v. Gomez (2020) 52
Cal.App.5th 1, 16–17, review granted Oct. 14, 2020, S264033
(Gomez).) We also hold that a section 1170.95 petition is not the
proper vehicle for challenging a murder conviction by attacking,
under our Supreme Court’s decisions in Banks and Clark, the
jury’s prior factual finding that the defendant was a major
participant who acted with reckless indifference to human life,
and that such claims may only be raised in a petition for habeas
corpus. (See Jones, at p. 483, rev.gr.; Nunez, at pp. 83, 95–97,
rev.gr.; Allison, at pp. 458, 461; Gomez, at pp. 16–17, rev.gr.;
Galvan, at p. 1142, rev.gr.; Murillo, at p. 168, rev.gr.)
FACTS3 AND PROCEDURAL BACKGROUND
In 1997, appellant and another individual committed a
burglary and robbery in which one person was shot and another
killed. (Flores, supra, B146005.) According to the surviving

3 Because the underlying facts of appellant’s murder
conviction are not relevant to our analysis, we only briefly
summarize the statement of facts from our unpublished opinion
in appellant’s direct appeal: People v. Flores (June 7, 2001,
B146005) (Flores). (See People v. Lewis (2020) 43 Cal.App.5th
1128, 1134, 1138, review granted Mar. 18, 2020, S260598 [court
may review record of conviction in assessing sufficiency of a
section 1170.95 petition].)

3
victim, two men entered the apartment and shot both victims.
After ascertaining that one victim was dead, the assailants took
the wallet of the other man and left.
Approximately two years later, appellant sought leniency
on another charge for which he was in custody by offering to
share information about a murder he claimed to have witnessed.
Based upon appellant’s statements, police determined appellant
had not merely witnessed the crime but had been a participant
and charged him with first degree murder (§ 187, subd. (a)),
assault with a firearm (§ 245, subd. (a)(2)), attempted first degree
residential robbery (§§ 664/211), first degree residential robbery
(§ 211), and two counts of first degree residential burglary
(§ 459).
Appellant was convicted as charged following a jury trial in
2000. In addition, the jury found true the special circumstances
that the murder was committed while appellant was engaged in
the crimes of robbery and burglary (§ 190.2, subd. (a)(17)), and
appellant was armed with a firearm (§ 12022, subd. (a)). The
trial court found several prior conviction allegations true and
sentenced appellant to life without the possibility of parole plus
87 years in state prison.
On direct appeal, this court modified the sentence by
staying the consecutive terms for attempted robbery and robbery
and by striking a firearm enhancement on the assault count. In
all other respects the judgment was affirmed.
On April 20, 2018, appellant filed a petition for writ of
habeas corpus for relief under Banks and Clark. The superior
court denied the habeas petition. Following a thorough analysis
of the facts of the offenses in light of the Banks and Clark factors,
the court found that as a major participant in the burglary and

4
robbery who acted with reckless indifference to human life,
appellant was not entitled to relief under Banks and Clark.
On October 11, 2019, appellant filed a petition for
resentencing under section 1170.95, in which he alleged he was
charged and convicted of first degree felony murder and,
pursuant to the amendments to sections 188 and 189, he could
not now be convicted of murder because he was not the actual
killer and lacked the intent to kill. The trial court stated it had
reviewed the resentencing petition and the court file, including
the court minutes and jury instructions, and a public defender
was appointed to represent appellant.
Following briefing and argument from the parties, the
superior court denied the petition, finding as a matter of law that
appellant had failed to make a prima facie showing that he was
entitled to resentencing under section 1170.95. The court added
that appellant’s claims based on Banks and Clark should be
addressed in the context of a habeas petition.
DISCUSSION
The Superior Court May Deny a Section 1170.95
Petition in the Prima Facie Stage of Review on the
Ground that a Petitioner Convicted of Murder with a
Felony-Murder Special-Circumstance Finding Is Not,
as a Matter of Law, Eligible for Resentencing Under
Section 1170.95
In order to obtain relief from his felony murder conviction
under section 1170.95, a petitioner must make a prima facie
showing that he “could not be convicted of first or second degree
murder because of changes to Section 188 or 189” made by Senate
Bill No. 1437. (§ 1170.95, subd. (a)(3), italics added; Nunez,
supra, 57 Cal.App.5th at p. 90, rev.gr.; Allison, supra, 55

5
Cal.App.5th at p. 457.) As the superior court determined here,
appellant cannot, as a matter of law, make the requisite prima
facie showing based on the jury’s felony-murder special-
circumstance findings in his case. (See Jones, supra, 56
Cal.App.5th at p. 479, rev.gr.)
A. Given the jury’s special-circumstance findings, the
superior court correctly determined that appellant could
still be convicted under the amended statute.
By adding subdivision (e) to section 189, Senate Bill
No. 1437 made the crime of felony murder subject to the same
elements of proof required for a special-circumstance finding
under section 190.2, subdivision (d).4 (People v. Superior Court
(Ferraro) (2020) 51 Cal.App.5th 896, 907 [“ ‘the standard under
section 189, subdivision (e)(3) for holding a defendant liable for
felony murder 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.) Specifically, to be convicted of
first degree murder under section 189 as amended, a participant
in one of the felonies enumerated in subdivision (a) must have

4 Subdivision (d) of section 190.2 remains the same today
as in 2000 when appellant was convicted: “[E]very person, not
the actual killer, who, with reckless indifference to human life
and as a major participant, aids, abets, counsels, commands,
induces, solicits, requests, or assists in the commission of a felony
enumerated in paragraph (17) of subdivision (a) which results in
the death of some person or persons, and who is found guilty of
murder in the first degree therefor, shall be punished by death or
imprisonment in the state prison for life without the possibility of
parole if a special circumstance enumerated in paragraph (17) of
subdivision (a) has been found to be true under Section 190.4.”

6
been the actual killer, or a direct aider and abettor who acted
with the intent to kill, or “a major participant in the underlying
felony [who] acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (§ 189, subd. (e).)
Here, appellant’s jury was instructed that if it found
appellant was not the actual killer, it could not find the special
circumstances true unless it was satisfied beyond a reasonable
doubt that appellant, “with reckless indifference to human life
and as a major participant,” aided and abetted the commission of
the burglary and/or robbery which resulted in the victim’s death.
(Italics added.) The jury was further instructed that “[a]
defendant acts with reckless indifference to human life when that
defendant knows or is aware that his acts involve a grave risk of
death to an innocent human being.” The jury found the special
circumstances true as to both underlying felonies beyond a
reasonable doubt. Thus, if the jury determined appellant was not
the actual killer or a direct aider and abettor with intent to kill, it
necessarily made the factual finding that appellant was a major
participant in the underlying felonies who acted with reckless
indifference to the victim’s life. Given this finding by the trier of
fact, appellant remains subject to conviction for first degree
murder notwithstanding Senate Bill No. 1437’s changes to
section 189.
Because the jury’s special-circumstance finding shows as a
matter of law that appellant could still be convicted of felony
murder under section 189 as amended, the superior court
correctly concluded that he cannot make a prima facie showing of
eligibility for resentencing under section 1170.95 and properly
denied relief. (Allison, supra, 55 Cal.App.5th at pp. 461–462 [“If
the prior finding shows the petitioner meets the requirements for

7
murder liability under amended sections 188 and 189, then it is
not true that the petitioner could not be convicted of murder
because of the changes to sections 188 and 189, and the petition
must be denied”]; Nunez, supra, 57 Cal.App.5th at p. 95, rev.gr.)
B. The jury’s pre-Banks and Clark special-
circumstance findings⎯that he was a major participant in
the burglary and robbery who acted with reckless
indifference to human life⎯disqualify appellant from
relief under section 1170.95 as a matter of law.
Appellant maintains that, standing alone, the jury’s pre-
Banks and Clark special-circumstance finding is insufficient to
disqualify him from relief under section 1170.95. He reasons that
Banks and Clark redefined “major participant” and “reckless
indifference to human life.” The Legislature, which is presumed
to be aware of existing laws and judicial decisions with a direct
bearing on new legislation (Leider v. Lewis (2017) 2 Cal.5th 1121,
1135), necessarily incorporated the Banks/Clark reconstruction of
these phrases when it added subdivision (e)(3) to section 189.
Therefore, according to appellant, because these phrases carry a
significantly narrower construction under current law, a jury’s
pre-Banks and Clark special-circumstance finding may be one
fact of many to consider at the order to show cause stage of an
1170.95 petition, but it does not preclude a defendant from
making a prima facie showing of eligibility for resentencing relief.
We disagree. Banks and Clark did not create new law, but
instead, “merely clarified the ‘major participant’ and ‘reckless
indifference to human life’ principles that existed when
defendant’s conviction became final.” (In re Miller (2017) 14
Cal.App.5th 960, 978 (Miller); Allison, supra, 55 Cal.App.5th at

8
p. 458; Nunez, supra, 57 Cal.App.5th at p. 92, rev.gr.; Jones,
supra, 56 Cal.App.5th at p. 482, rev.gr.)
Following an examination of two United States Supreme
Court cases (Enmund v. Florida (1982) 458 U.S. 782 [102 S.Ct.
3368, 73 L.Ed.2d 1140]; Tison v. Arizona (1987) 481 U.S. 137 [107
S.Ct. 1676, 95 L.Ed.2d 127]), Banks set forth a non-exclusive set
of factors to aid the determination of whether an individual was a
“major participant” in a crime.5 (Banks, supra, 61 Cal.4th at
p. 803.) Our Supreme Court also explained that to determine
whether the defendant acted with reckless indifference, courts
must “look to whether a defendant has ‘ “knowingly engag[ed] in
criminal activities known to carry a grave risk of death.” ’ ”
(Banks, supra, 61 Cal.4th at p. 801.) Specifically, “[t]he
defendant must be aware of and willingly involved in the violent
manner in which the particular offense is committed,
demonstrating reckless indifference to the significant risk of
death his or her actions create.” (Ibid.) In Clark, the court put it
this way: “ ‘reckless indifference’ . . . encompasses a willingness
to kill (or to assist another in killing) to achieve a distinct aim,

5 These factors include: the defendant’s role in planning
the criminal enterprise that led to one or more deaths; his or her
role in supplying or using lethal weapons; the defendant’s
awareness of the particular dangers posed by the nature of the
crime, such as the weapons used or the past experience or
conduct of the other participants; whether the defendant was
present at the scene of the killing, in a position to facilitate or
prevent the murder; whether the defendant’s own actions or
inaction played a particular role in the death; and what he or she
did after lethal force was used. (Banks, supra, 61 Cal.4th at
p. 803.)

9
even if the defendant does not specifically desire that death as
the outcome of his actions.” (Clark, supra, 63 Cal.4th at p. 617.)
To assist appellate review of a jury’s reckless indifference
finding, Clark set out a series of considerations relevant to
determining whether a defendant had acted with reckless
indifference to human life. (Clark, supra, 63 Cal.4th at pp. 618–
622.) But “[j]ust as [the court] said of the factors concerning
major participant status in Banks, ‘[n]o one of these
considerations is necessary, nor is any one of them necessarily
sufficient’ ” to establish whether a defendant was a major
participant who acted with reckless indifference to human life.
(Clark, at p. 618, quoting Banks, supra, 61 Cal.4th at p. 803.)
Moreover, not only did the Banks and Clark decisions
herald no change in the law, they also did not fundamentally
change the meaning of the phrases “major participant” and
“reckless indifference to human life.” (Allison, supra, 55
Cal.App.5th at p. 458; Nunez, supra, 57 Cal.App.5th at p. 92,
rev.gr.; Jones, supra, 56 Cal.App.5th at p. 484, rev.gr.) Rather,
the high court in those cases “simply stated what section 190.2,
subdivision (d) has always meant.” (Miller, supra, 14
Cal.App.5th at p. 979.) Indeed, our Supreme Court has not
required any new jury instruction on the clarifications, and no
mandatory language or material changes have been made to the
CALJIC or CALCRIM special-circumstance instructions since
Banks and Clark were decided. (Compare CALJIC No. 8.80.1
(1996 rev.) (6th ed. 1996) with CALJIC No. 8.80.1 (Fall 2015 ed.);
see also Nunez, at p. 92, rev.gr.; Gomez, supra, 52 Cal.5th at
p. 14, fn. 6, rev.gr. [CALCRIM No. 703 before Banks and Clark];
CALCRIM No. 703 (2020 ed.).) Rather, while both CALJIC No.
8.80.1 and CALCRIM No. 703 now include optional language

10
drawn from Banks and Clark regarding the factors a jury may
consider, neither Banks nor Clark held that the trial court has a
sua sponte duty to instruct on those factors. (People v. Price
(2017) 8 Cal.App.5th 409, 450–451 (Price) [jury instructions that
omit the Banks and Clark factors are not defective]; Allison, at
pp. 458–459; Bench Notes to CALCRIM No. 703 (2020 ed.)
p. 452.)
In short, as we observed in Nunez, “the felony-murder
special-circumstance instructions given post-Banks and Clark do
not necessarily differ at all from pre-Banks and Clark felony-
murder special-circumstance instructions⎯the factors, issues,
and questions the post- and pre-Banks and Clark juries consider
to make the [major participant/reckless indifference] finding are
exactly the same. Accordingly, whether a jury made a post- or
pre-Banks and Clark [major participant/reckless indifference]
finding, that finding establishes as a matter of law the
defendant’s ineligibility for relief under section 1170.95 because
he was found either to have participated in the specified felony
with the intent to kill, or he was a major participant who acted
with reckless indifference to human life and could still be
convicted of murder notwithstanding the changes to section
189.”6 (Nunez, supra, 57 Cal.App.5th at p. 93, fn. omitted,
rev.gr.)

6 In fact, “[t]he only necessary difference between a pre-
Banks and Clark felony-murder special-circumstance finding and
one returned after Banks and Clark arises at the level of
appellate review: If the finding was challenged on direct appeal
before Banks and Clark, appellate review of the sufficiency of the
evidence to support the finding was not informed by Banks and

11
 In this regard, we reiterate our disagreement with the
decisions in People v. Torres (2020) 46 Cal.App.5th 1168, review
granted July 7, 2020, S262011 (Torres), People v. Smith (2020) 49
Cal.App.5th 85, review granted July 22, 2020, S262835 (Smith),
and People v. York (2020) 54 Cal.App.5th 250, review granted
November 18, 2020, S264954 (York) (see also People v. Harris
(2021) 60 Cal.App.5th 939, 958–959, review granted Apr. 28,
2021, S267802), because all of these cases misinterpret the scope
and effect of Banks and Clark. (Nunez, supra, 57 Cal.App.5th at
p. 93, rev.gr.; Jones, supra, 56 Cal.App.5th at p. 484, rev.gr.;
Allison, supra, 55 Cal.App.5th at pp. 458–459.)
According to these courts, because “the factual issues that
the jury was asked to resolve [before the Banks and Clark
decisions] are not the same factual issues our Supreme Court has
since identified as controlling” (Smith, supra, 49 Cal.App. 5th at
p. 93, rev.gr.), such findings should not be treated “as if they
resolved key disputed facts” (ibid.; Torres, supra, 46 Cal.App.5th
at p. 1180, rev.gr.). York went a step further, holding that for
purposes of section 1170.95, a pre-Banks and Clark jury finding
that the defendant acted with reckless indifference to human life
as a major participant should be treated as if that finding simply
did not exist. (York, supra, 54 Cal.App.5th at p. 258, rev.gr.)
However, contrary to these decisions’ holdings, we find “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,

Clark.” (Nunez, supra, 57 Cal.App.5th at p. 93, fn. 7, rev.gr.;
Price, supra, 8 Cal.App.5th at pp. 450–451 [Banks and Clark
decisions govern judicial review for sufficiency of the evidence
rather than the facts or elements a jury was required to find];
Jones, supra, 56 Cal.App.5th at p. 483, rev.gr.)

12
or resolved different factual issues, answered different questions,
or applied different standards. The mandatory instructions did
not change, and the pre-Banks and Clark jury necessarily
resolved the same factual issues beyond a reasonable doubt that
a post-Banks and Clark jury would necessarily resolve beyond a
reasonable doubt.” (Nunez, supra, 57 Cal.App.5th at p. 94,
rev.gr.; Jones, supra, 56 Cal.App.5th at p. 484, rev.gr.; Allison,
supra, 55 Cal.App.5th at pp. 458–459.)
We therefore reject the approach taken by the courts in
Torres, Smith, and York, and decline to proceed as though the
jury’s special-circumstance findings simply did not exist. Indeed,
as we noted in Nunez, “jury findings in a final judgment are
generally considered to be valid and binding unless and until
they are overturned by collateral attack, regardless of whether
they were subjected to appellate review. Nothing in Banks or
Clark supports the automatic invalidation or disregard of such
findings by a properly instructed jury.” (Nunez, supra, 57
Cal.App.5th at p. 94, rev.gr.)
C. The sole avenue for challenging the evidentiary
support for the jury’s finding that appellant was a major
participant in the burglary and robbery who acted with
reckless indifference to human life lies in a habeas
petition.
Appellant insists that the jury’s pre-Banks and Clark
special-circumstance findings are irrelevant to the trial court’s
determination of whether he has made a prima facie showing of
entitlement to relief under section 1170.95. We disagree and hold
that the exclusive procedure for challenging a special-
circumstance felony-murder conviction under Banks and Clark is
to separately file a petition for writ of habeas corpus in which the

13
defendant properly bears the burden of proof. (See Nunez, supra,
57 Cal.App.5th at pp. 95–96, rev.gr.; Jones, supra, 56 Cal.App.5th
at p. 485, rev.gr.; Allison, supra, 55 Cal.App.5th at p. 459, fn. 9;
Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr. [“If [appellant]
is entitled to relief based on Banks and Clark, the avenue for
such relief is not section 1170.95, but a petition for writ of habeas
corpus”]; Murillo, supra, 54 Cal.App.5th at p. 168, rev.gr.)
Senate Bill No. 1437 contains no indication in its text or
history that the Legislature intended to permit defendants to
challenge their murder convictions by attacking prior findings of
fact. Indeed, 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.
As the court in Allison observed, “subdivision (a)(3) of section
1170.95 says nothing about erroneous prior findings or the
possibility of proving contrary facts if given a second chance.
Rather, it requires that the petitioner could not be convicted of
murder because of the changes to sections 188 and 189, not
because a prior fact finder got the facts wrong.” (Allison, supra,
55 Cal.App.5th at p. 461.)
Accordingly, as we held in Nunez, the sole avenue of relief
for defendants whose pre-Banks and Clark special-circumstance
findings cannot withstand post-Banks and Clark scrutiny is by
way of a petition for habeas corpus in which the petitioner would
properly bear the burden of proof. (Nunez, supra, 57 Cal.App.5th
at pp. 95–96; Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr.
[“If [appellant] is entitled to relief based on Banks and Clark, the
avenue for such relief is not section 1170.95, but a petition for

14
writ of habeas corpus”]; Murillo, supra, 54 Cal.App.5th at p. 168,
rev.gr.)
In a habeas corpus proceeding to collaterally attack a
judgment of conviction by challenging a pre-Banks and Clark
special-circumstance finding, the petitioner bears the burden of
alleging and proving, by a preponderance of the evidence, the
facts supporting the claim for relief, and demonstrating that the
finding must be vacated for insufficient evidence. (In re Miranda
(2008) 43 Cal.4th 541, 575; People v. Duvall (1995) 9 Cal.4th 464,
474.) “[A] postconviction challenge to a special circumstance
finding under Banks and Clark presents a legal question for the
reviewing court. [Citation.] The challenge ‘does not require
resolution of disputed facts; the facts are a given’—the appellate
court simply determines if they are sufficient to support the
special circumstance finding under the multifactor guidance
articulated in Banks and Clark.” (Jones, supra, 56 Cal.App.5th
at p. 483, rev.gr.) The underlying judgment is presumed valid (In
re Bacigalupo (2012) 55 Cal.4th 312, 332), and the standard of
review “ ‘is whether, when evidence that is reasonable, credible,
and of solid value is viewed “in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the allegation beyond a reasonable doubt.”
. . . [The court presumes], in support of the judgment, the
existence of every fact the trier of fact could reasonably deduce
from the evidence, whether direct or circumstantial.’ ” (In re
Bennett (2018) 26 Cal.App.5th 1002, 1018; Jones, at p. 483.)
In Gomez, the court recognized that permitting a defendant
with a pre-Banks and Clark felony-murder conviction to
challenge the special-circumstance finding under section 1170.95
would unfairly shift the burden of proof normally applicable to

15
Banks and Clark habeas claims from the petitioner to the People.
As the court explained: “In an evidentiary hearing on a section
1170.95 petition to determine whether there is sufficient evidence
to support her murder conviction on a felony-murder or natural
and probable consequences theory, the People would bear the
burden of proof beyond a reasonable doubt. (§ 1170.95, subd.
(d)(3).) To make its true findings on the special circumstance
allegations against [the defendant], the jury was required to find
that [the defendant] either acted with the intent to kill, or that
she was a major participant who acted with reckless indifference
to human life in the robbery and kidnapping of [the victim]. The
People should not be required to prove beyond a reasonable
doubt, a second time, that [the defendant] satisfied those
requirements for the special circumstance findings. Considering
the different burdens of proof in a habeas corpus proceeding and
a proceeding under section 1170.95, we conclude that a petition
for writ of habeas corpus is the appropriate vehicle for [the
defendant] to challenge her special circumstance findings. If [the
defendant] were to succeed in challenging the special
circumstance findings in a habeas corpus proceeding, she would
then be in a position to successfully petition under section
1170.95 to vacate her murder conviction.” (Gomez, supra, 52
Cal.App.5th at p. 17, rev.gr.; Nunez, supra, 57 Cal.App.5th at
p. 96, rev.gr.; see also Galvan, supra, 52 Cal.App.5th at pp. 1142–
1143, rev.gr. [expressing concern over the disparate treatment of
defendants based solely on the dates of their convictions].)
This is precisely what happened in People v. Ramirez
(2019) 41 Cal.App.5th 923 (Ramirez). In 2003 Ramirez had been
convicted of first degree murder with a special-circumstance
finding under section 190.2, subdivision (a)(17) that he was an

16
aider and abettor and major participant in a robbery who had
acted with reckless indifference to human life. He was sentenced
to life without the possibility of parole, and in 2017, Ramirez
successfully challenged the evidentiary support for the major
participant and reckless indifference findings under Banks and
Clark in a habeas petition filed in this court. (Id. at pp. 926–
927.) We struck the special-circumstance finding, and on
remand, Ramirez was sentenced to a term of 25 years to life for
the murder conviction. (Id. at p. 927.)
Following the enactment of Senate Bill No. 1437, Ramirez
filed a petition under section 1170.95 to modify his first degree
murder sentence. The trial court denied the petition on the
ground that the affirming opinion in the direct appeal showed
Ramirez to have acted with reckless indifference to human life as
a major participant to the underlying felony. (Ramirez, supra, 41
Cal.App.5th at p. 928.) On appeal from the denial of the 1170.95
petition, we reversed on the ground that in light of our prior
habeas determination, “[i]t is beyond dispute that this court
found that the defendant was not shown to have been a major
participant in the underlying felony, or to have acted with
reckless indifference to human life. [Citation.] Under these
circumstances, the trial court was required by section 1170.95,
subdivision (d)(2) to vacate the conviction and resentence
defendant on the remaining counts.”7 (Id. at p. 933.)

7 Subdivision (d)(2) of section 1170.95 provides in relevant
part: “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.”

17
 Here, appellant pursued his habeas claim under Banks and
Clark in the trial court, but unlike the defendant in Ramirez, he
lost. Indeed, in denying the habeas petition, the court undertook
a rigorous analysis of the facts of the offenses in light of the
Banks and Clark factors and found appellant’s claim wanting. To
now permit appellant to maintain another evidentiary challenge
to the special-circumstance findings in the context of section
1170.95 after his unsuccessful habeas petition on the same
grounds would not only do violence to the legislative focus in
enacting Senate Bill No. 1437, but it would unjustifiably relieve
appellant of the burden of proving his claim under Banks and
Clark.
DISPOSITION
The postjudgment order is affirmed.
NOT TO BE PUBLISHED.

LUI, P. J.
I concur:

CHAVEZ, J.

18
People v. Flores, B308289

ASHMANN-GERST, J., Concurring in the judgment.

Pursuant to my concurring opinion in People v. Nunez
(2020) 57 Cal.App.5th 78, 97–99, review granted January 13,
2021, S265918, I only join in Parts A and B of this opinion.

__________________________, J.
ASHMANN-GERST