Filed 7/1/21 P. v. Bishop CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075148
v. (Super.Ct.No. RIF74986)
CARL DWAYNE BISHOP, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
Affirmed.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland,
Alan L. Amann and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and
Respondent.
1
Carl Bishop appeals from the denial of his Penal Code section 1170.95 petition to
vacate his murder conviction. In 2000, he was convicted of first degree murder with a
felony-murder special circumstance, which required the jury to find he was “a major
participant” in a felony murder who acted with “reckless indifference to human life.”
(Pen. Code, § 190.2, subds. (a)(17) & (d), unlabeled statutory citations refer to this code.)
The trial court summarily denied his section 1170.95 petition, concluding the special
circumstance finding rendered him ineligible for relief as a matter of law.
On appeal, Bishop argues that because his conviction predates our Supreme
Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark), which clarified the meaning of “major participant” and
“reckless indifference to human life,” he has established a prima facie case for relief
under section 1170.95. He argues the statute entitles him to challenge the validity of his
felony-murder special circumstance finding at an evidentiary hearing where he can
present new evidence and the prosecution bears the burden of proof.
This issue—whether a pre-Banks/Clark felony-murder special circumstance
finding renders a section 1170.95 petitioner ineligible for relief as a matter of law—has
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divided the Courts of Appeal and is currently before our Supreme Court on review. In
People v. Jones (2020) 56 Cal.App.5th 474, review granted January 27, 2021, S265854
(Jones), we concluded that such a finding renders a petitioner ineligible for relief as a
1
See People v. Strong (Cal.Ct.App., Dec. 18, 2020, No. C091162) 2020 WL
7417057, review granted March 10, 2021, S266606.
2
matter of law and that habeas, not section 1170.95, is the proper avenue for attacking the
finding’s validity under Banks and Clark. In so concluding, we agreed with the reasoning
in People v. Gomez (2020) 52 Cal.App.5th 1, review granted October 14, 2020, S264033,
People v. Galvan (2020) 52 Cal.App.5th 1134, review granted October 14, 2020,
S264284 (Galvan), and People v. Allison (2020) 55 Cal.App.5th 449 (Allison), and we
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disagreed with the line of cases going the other way. We continue to agree with our
holding in Jones. We therefore conclude Bishop’s special circumstance finding renders
him ineligible for relief and affirm.
I
FACTS
The underlying facts of Bishop’s murder conviction are not relevant to our
analysis, so we recount them only briefly, taking from our unpublished opinion in his
direct appeal, People v. Bishop et al. (June 27, 2001, E027001) (Bishop). (See People v.
Lewis (2020) 43 Cal.App.5th 1128, 1134, 1138, review granted Mar. 18, 2020, S260598
2 The cases holding that a pre-Banks/Clark felony-murder special circumstance
finding does not render a petitioner ineligible for resentencing under section 1170.95
include People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020,
S262011; People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020
S262835; People v. York (2020) 54 Cal.App.5th 250, review granted November 18, 2020,
S264954.
3
3
[court may review record of conviction in assessing sufficiency of a § 1170.95 petition].)
In 1996, Bishop and three other men committed a home invasion robbery during which
one or more members of the group shot one of the victim’s three times and killed the
other victim by shooting her in the head. Before trial, Bishop admitted to a polygraph
examiner that he had driven the group to the victims’ home, had supplied the guns they
used, and had known that robbery was a possibility. He also admitted he expected to
receive some of the contraband from the robbery in exchange for driving. (Bishop, at
pp. 4, 8-9.)
The jury convicted Bishop of attempted murder (§§ 664/187), first degree murder
(§ 187) with a felony-murder special circumstance (§ 190.2, subds. (a)(17)(A) & (d)), and
found true the allegation that a principal was armed during both crimes (§ 12022, subd.
(a)(1)). (Bishop, supra, at p. 2.) The trial court sentenced him to life without the
possibility of parole for the murder, plus a consecutive life term for the attempted murder,
plus a consecutive one-year term for the gun enhancement. Bishop appealed his
conviction but raised no claims regarding the sufficiency of the evidence presented
against him. We affirmed his conviction in 2001. (Bishop, at p. 1.)
After Banks and Clark were decided in 2015 and 2016, respectively, Bishop did
not file a petition for writ of habeas corpus challenging the sufficiency of the evidence to
3Our Supreme Court has granted review of People v. Lewis, supra, 43
Cal.App.5th 1128 and will resolve, among other issues, whether a superior court may
review the record of conviction when determining whether a section 1170.95 petitioner
has made a prima facie showing of eligibility for relief.
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support his felony-murder special circumstance finding. In December 2019, he filed a
section 1170.95 petition to vacate his murder conviction, which, as we’ve noted, the trial
court summarily denied. The court concluded he was ineligible for relief as a matter of
law based on the jury’s verdict and the instructions given at his trial. Specifically, the
court concluded that by finding the special circumstance true, the jury had necessarily
found he was a major participant in the robbery who acted with reckless indifference to
human life.
II
ANALYSIS
Bishop argues the court’s conclusion about the effect of his special circumstance
finding is incorrect because the finding predates Banks and Clark. We rejected the same
argument from his codefendant in Jones. (Jones, supra, 56 Cal.App.5th at p. 485.)
A. Changes to the Definition of Murder and Section 1170.95
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB
1437), and it went into effect January 1, 2019. (Stats. 2018, ch. 1015, pp. 6673-6676.) As
relevant here, SB 1437 amended section 189 to provide that a person who was not the
actual killer may not be convicted of first degree murder under a felony-murder theory
unless they aided and abetted the murder “with the intent to kill” or acted as a “major
participant in the underlying felony” and with “reckless indifference to human life, as
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described in subdivision (d) of Section 190.2.”4 (§ 189, subd. (e).) Thus, SB 1437
imported the definition of “major participant” and “reckless indifference to human life”
from section 190.2, subdivision (d), the special circumstance at issue here.
SB 1437 also enacted section 1170.95, which allows a person who has been
convicted under a first degree felony-murder theory—but who could no longer be so
convicted under SB 1437—to petition to have the conviction vacated. The statute
requires a defendant to submit a petition affirming that they: (1) were charged with
murder in a manner “that allowed the prosecution to proceed under a theory of felony
murder” (§ 1170.95, subd. (a)(1)); (2) were “convicted of” or pleaded guilty to “first
degree or second degree murder” (§ 1170.95, subd. (a)(2)); and (3) “could not be
convicted of first or second degree murder because of changes to Sections 188 or 189
made” by SB 1437 (§ 1170.95, subd. (a)(3)).
If the petitioner “makes a prima facie showing that he or she is entitled to relief,”
the court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder conviction. (§ 1170.95, subds. (c) & (d)(1).) At that hearing, the parties
“may . . . offer new or additional evidence” and the People bear the burden of proving
“beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95,
subd. (d)(3).)
4 SB 1437 also amended section 188 to provide that malice can no longer be
imputed, thereby eliminating the natural and probable consequences theory of murder
liability. But because this case does not involve that theory, we limit our discussion of SB
1437 and section 1170.95 to felony murder.
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B. A Petitioner with a Felony-murder Special Circumstance Finding Is
Ineligible for Resentencing Under Section 1170.95
As we explained in Jones, a petitioner with a special circumstance finding under
section 190.2, subdivision (d) is ineligible for resentencing under section 1170.95. (Jones,
supra, 56 Cal.App.5th at pp. 482-485.) Briefly, this is because, to be eligible for
resentencing a petition must sufficiently allege they “could not be convicted of first or
second degree murder because of changes to Section 188 or 189 made [by SB 1437].”
(§ 1170.95, subd. (a)(3), italics added.) As discussed, the change SB 1437 made to
section 189 was to require that a defendant must have been at least a major participant in
the underlying felony who acted with reckless indifference to human life in order to be
convicted under a felony-murder theory. (§ 189, subd. (e)(3).) This new requirement is
the same as what the felony-murder special circumstance requires, both currently and in
2000, when Bishop’s jury rendered their verdict. (See § 190.2, subds. (b)-(d); Prop. 196,
as approved by voters, Gen. Elec. (Mar. 26, 1996) [amending § 190.2].)
Thus, Bishop’s felony-murder special circumstance finding establishes as a matter
of law that he could still be convicted of first degree felony murder today (that is, despite
the change to section 189 made by SB 1437). And, as we held in Jones, a petitioner
cannot avoid this conclusion by attacking the validity of their special circumstance
finding in a resentencing petition. This is because section 1170.95 is not a mechanism for
relitigating factual questions that were settled by a prior jury. (Jones, supra, 56
Cal.App.5th at p. 485; Allison, supra, 55 Cal.App.5th at p. 461.) The proper mechanism
for challenging a pre-Banks/Clark finding is the same as it was before SB 1437 and
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section 1170.95—to file a habeas petition and demonstrate the record contains
insufficient evidence to support the finding under the guidance articulated in those
decisions. (Jones, at pp. 482-483.)
Bishop argues we should reconsider our holding in Jones for two reasons. First, he
claims the jury instructions at his trial were insufficient because they did not include “the
necessary factors” articulated in Banks and Clark. But as we explained in Jones, those
decisions did not change the law regarding the felony-murder special circumstance, and
they did not result in the addition of mandatory language to the pattern jury instruction
for the special circumstance. (Jones, supra, 56 Cal.App.5th at p. 484; see also In re
Scoggins (2020) 9 Cal.5th 667, 671, 673 [explaining that Banks and Clark “clarified” the
meaning of “major participant” and “reckless indifference to human life” for purposes of
the felony-murder special circumstance].)
“The phrases ‘major participant’ and ‘reckless indifference to human life’ do not
have specialized definitions, but are interpreted as they are used in common parlance”
and “[j]ury instructions regarding the mental state required for a felony-murder special
circumstance are not defective if they do not include the Banks and Clark factors.”
(Allison, supra, 55 Cal.App.5th at p. 458.) The pattern jury instruction for major
participation and reckless indifference “remains the same as it was before Banks and
Clark.” (Ibid.) And, though CALCRIM No. 703 contains optional language describing
the Banks and Clark factors, “[t]he bench notes 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
8
that the court has a sua sponte duty to instruct on those factors.’” (Jones, supra, 56
Cal.App.5th at p. 486 (conc. opn. of Menetrez, J.), quoting Judicial Council of Cal. Crim.
Jury Instns. (2019 ed.) Bench Notes to CALCRIM No. 703.) Thus, contrary to his
characterization of the impact of Banks and Clark, Bishop “had the same incentive” at his
original trial to attempt to minimize his involvement in the robbery and culpability for the
killings as he would have had if his trial “had taken place after Banks and Clark.”
(Allison, at p. 459.)
Second, Bishop argues that requiring a petitioner to invalidate their felony-murder
special circumstance in a habeas proceeding before petitioning for resentencing under
section 1170.95 “creates an unnecessary two-step process” that is “inconsistent with the
Legislative intent to expeditiously determine if an individual’s murder conviction should
be vacated.” As evidence that efficiency is one of the main goals of the petitioning
procedure, he cites the provisions of section 1170.95 that set out the time limits for
briefing and holding an evidentiary hearing. (§ 1170.95, subds. (c) & (d)(1).) We do not
disagree that section 1170.95 is intended to be an expeditious resentencing procedure in
response to the recent change in the definition of murder. The problem with Bishop’s
argument is that the statute clearly defines the class of defendants who may take
advantage of that procedure, and he is not among them. Viewed in light of the clear
statutory language, our approach does not create an unnecessary two-step approach, it
simply applies section 1170.95’s express requirement that a petition for resentencing
must be based on changes to section 189 made by SB 1437. (§ 1170.95, subd. (a)(3).)
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And we see nothing unfair about our conclusion that section 1170.95 is not a
mechanism for relitigating a factual issue previously decided by a jury—even if that
factual issue is the validity of a pre-Banks/Cark special circumstance finding. As the
Galvan court explained, it would be unfair to conclude otherwise, as we would
effectively be giving petitioners with pre-Banks/Clark findings “an enormous advantage
over . . . similarly situated defendants” with post-Banks/Clark findings, “based solely on
the date of [their] conviction.” (Galvan, supra, 52 Cal.App.5th at p. 1142.) “Defendants
convicted after . . . Banks and Clark would be required to challenge the sufficiency of the
evidence of the special circumstance finding on direct appeal, where the People would
need only to show that substantial evidence supported that finding.” (Id. at pp. 1142-
1143.) Defendants convicted before Banks and Clark, on the other hand, could challenge
the finding under section 1170.95, which would require the prosecution “to prove the
special circumstance beyond a reasonable doubt.” (Galvan, at p. 1143.) “[N]othing in the
language of Senate Bill No. 1437 suggests that the Legislature intended unequal
treatment of such similarly situated defendants.” (Ibid.)
We note that in People v. Secrease (2021) 63 Cal.App.5th 231, our colleagues in
Division Four of the First District recently “adopt[ed] something of a middle ground
between the[] two lines of cases” by allowing a petitioner with a pre-Banks/Clark felony-
murder special circumstance finding to challenge the sufficiency of the evidence
supporting the finding with a section 1170.95 petition. (Secrease, at p. 247.) Secrease
“agree[d] with a central premise of the reasoning in Jones and Allison . . . that section
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1170.95, subdivision (c) cannot reasonably be read to permit a ‘do-over’ of factual issues
that were necessarily resolved against a section 1170.95 petitioner by a jury,” but
disagreed that habeas is the only mechanism for challenging the finding. (Id. at pp. 254-
255.) Thus, our colleagues concluded that where “no court has ever determined whether
the felony-murder special-circumstance finding rendered against [a petitioner] meets the
minimum standards of personal culpability enunciated in [Banks and Clark],” the
petitioner is entitled to such review in a section 1170.95 resentencing proceeding.
(Secrease, at p. 236.) This court took a similar approach in People v. Law (2020) 48
Cal.App.5th 811, review granted July 8, 2020, S262490, where we upheld the trial
court’s summary denial of the petition based on our conclusion that substantial evidence
from the trial record supported the pre-Banks/Clark felony-murder special circumstance
finding. (See Law, at p. 822, [noting that the court’s inquiry, whether performed on
appeal from the denial of a § 1170.95 petition or in a habeas proceeding, is a legal one
that asks whether the evidence presented at trial is sufficient to support the finding under
the guidance in Banks and Clark].)
But unlike the appellant in Law, Bishop has not briefed the issue of whether
substantial evidence supports his special circumstance finding. In fact, he argues against
the approach advocated in Secrease and taken in Law, asserting he is entitled to challenge
the finding with new evidence at a resentencing hearing. For all the reasons discussed
above and articulated in Jones, we disagree that section 1170.95 allows Bishop to
relitigate his special circumstance finding and require the People to prove it beyond a
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reasonable doubt a second time. However, rather than decide the issue without input from
Bishop, we leave the sufficiency of the evidence supporting his special circumstance
finding to a future habeas proceeding should Bishop decide to challenge the finding
under Banks and Clark.
III
DISPOSITION
We affirm the denial of the petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
RAMIREZ
P. J.
MENETREZ
J.
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