People v. Mency CA2/4

Filed 9/16/21 P. v. Mency CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B301966
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. GA030918)

v.

JASON MENCY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles
County, Stan Blumenfeld, Judge. Reversed and remanded.
Deborah L. Hawkins, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Amanda V. Lopez and David W. Williams, Deputy Attorneys General,
for Plaintiff and Respondent.
 This is an appeal from the denial of appellant Jason Mency’s
petition for resentencing under Penal Code section 1170.95.1 Appellant
and his codefendant La Min Johnson were charged and tried together,
with separate juries, for 88 separate offenses.2 In 1999, appellant’s jury
convicted him of 60 substantive crimes, including one count of special
circumstance murder of Marsha Lee Birch (§ 187, subd. (a), count 1),
the only offense at issue in this appeal. As to that count, the jury found
true that the murder was committed while appellant was aiding and
abetting the commission of robbery and burglary (§ 190.2, subds.
(a)(17), (d)), and that a principal was armed with a firearm (§ 12022,
subd. (a)(1)). Appellant was sentenced on count 1 to life imprisonment
without the possibility of parole plus one year.3
This court affirmed appellant’s judgment of conviction in 2002.
(See People v. Mency (Nov. 14, 2002, B135267) [nonpub. opn.] (Mency
I)). In 2016, appellant filed a petition for writ of habeas corpus in the
trial court seeking reversal of his conviction on count 1. Appellant
argued the evidence was insufficient to support a finding he was a
major participant who acted with reckless indifference to human life as

1 Undesignated statutory references are to the Penal Code.

2 Johnson is not a party to this appeal.

3 Appellant was also sentenced to two consecutive terms of life
imprisonment with the possibility of parole for two counts of kidnapping to
commit robbery (§ 209, subd. (b); counts 14, 15). Sentences imposed on the
remaining counts were either stayed or imposed concurrently with counts 1,
14, or 15.

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clarified by People v. Banks (2015) 61 Cal.4th 788 (Banks), and People v.
Clark (2016) 63 Cal.4th 522 (Clark). The trial court summarily denied
the petition in August 2017.
In January 2019, appellant filed a petition for resentencing under
section 1170.95, which provides that persons who were convicted under
theories of felony murder or murder under the natural and probable
consequences doctrine, and who could no longer be convicted of murder
following the enactment of Senate Bill No. 1437 (S.B. 1437), may
petition the sentencing court to vacate the conviction and resentence on
any remaining counts. (Stats. 2018, ch. 1015, § 1, subd. (f).)
Following the appointment of counsel, briefing by the parties, and
two hearings to address the jury’s robbery- and burglary-murder special
circumstance findings (§ 190.2, subd. (a)(17)), the trial court summarily
denied appellant’s petition. The court reasoned that appellant was
ineligible for relief as a matter of law because the jury’s true findings on
both special circumstance allegations required a finding that if
appellant was not the actual killer, he aided and abetted the murder
with the intent to kill the victim, or was a major participant who aided
and abetted the robbery and/or burglary with reckless indifference to
human life.
Appellant appeals from the trial court’s order, and contends that
the summary denial of his petition should be reversed because the trial
court’s reliance on the robbery- and burglary-murder special
circumstance findings is in violation of People v. Torres (2020) 46
Cal.App.5th 1168 (Torres), review granted June 24, 2020, S262011,
overruled on another ground in People v. Lewis (2021) 11 Cal.5th 952

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(Lewis). In Torres, our colleagues in Division Five held that a trial
court commits reversible error by summarily denying a section 1170.95
petition based on a robbery-murder special circumstance finding
predating Banks and Clark. (Torres, supra, at p. 1173; accord, People v.
Secrease (2021) 63 Cal.App.5th 231, 255 (Secrease), rev. granted, June
30, 2021, S268862; People v. Harris (2021) 60 Cal.App.5th 939, 958
(Harris), rev. granted, Apr. 28, 2021, S267802; People v. York (2020) 54
Cal.App.5th 250 (York), rev. granted, Nov. 18, 2020, S264954; People v.
Smith (2020) 49 Cal.App.5th 85 (Smith), rev. granted, July 22, 2020,
S262835.)
The Attorney General asserts that Torres was incorrectly decided,
and requests that we follow the line of cases following People v. Galvan
(2020) 52 Cal.App.5th 1134 (Galvan), review granted, October 14, 2020,
S264284. (E.g. People v. Nunez (2020) 57 Cal.App.5th 78 (Nunez), rev.
granted, Jan. 13, 2021, S265918; People v. Jones (2020) 56 Cal.App.5th
474 (Jones), rev. granted, Jan. 27, 2021, S265854; People v. Allison
(2020) 55 Cal.App.5th 449; People v. Murillo (2020) 54 Cal.App.5th 160,
rev. granted, Nov. 18, 2020, S264978; People v. Gomez (2020) 52
Cal.App.5th 1 (Gomez), rev. granted, Oct. 14, 2020, S264033.)
Consistent with our prior decisions on the issue, we reverse the
trial court’s order in light of Torres. We also conclude that appellant’s
record of conviction does not establish as a matter of law that he acted
as a major participant with reckless indifference under the standards
established by Banks and Clark. We reverse the order summarily

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denying defendant’s petition, and direct the court to issue an order to
show cause and proceed consistent with section 1170.95, subdivision (d).

FACTUAL AND PROCEDURAL BACKGROUND
We recite the factual background from Mency I, as well as from
People v. La Min Johnson (June 18, 2002, B137441) [nonpub. opn.]
(Johnson), and the trial court’s order summarily denying appellant’s
habeas petition in 2017. The order and opinions comprise part of the
record on appeal, and have been used in the parties’ briefs.
From 1995 to 1997, appellant and Johnson engaged in a crime
spree ranging from vehicle burglary and joyriding to attempted murder
and first degree murder. As relevant here, appellant was prosecuted for
the murder of Marsha Lee Birch on a theory of felony murder
predicated on the Birch robbery and the burglary of a parked car close
to her home.
Appellant gave the police a lengthy statement in which he
admitted involvement in several crimes, including the murder of Birch.
According to his statement, appellant and Johnson, searching for car
stereos to steal, had driven to Altadena on January 3, 1997, in a car
they had already stolen. Around 5:00 a.m., they stopped in front of
Alfred Robinson’s house, and Johnson broke the side window to
Robinson’s car, which was parked in the street. Johnson and appellant
took items from inside the car, including a gun and ammunition they
found in the trunk. As the men walked back to their stolen car, they
saw Birch inside her home “getting ready to come outside.”

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 As Birch walked to her car, Johnson brandished a gun and
grabbed Birch and the purse she had been carrying. Birch resisted and
attempted to get at Johnson’s gun.4 Johnson fired two shots, after
which appellant said, “come on man, let’s go, we got to get out of here.”
Appellant and Johnson got into the stolen car, and appellant drove
away. Birch died from multiple gunshot wounds.
Officers surveilling appellant’s home the morning of the shooting
observed appellant and another man returning to the home around 5:14
a.m. (around 15 minutes after the shooting). A few minutes later, two
men were seen leaving appellant’s home and walking one block south
toward a trash container. One man was then seen leaning into the
container as the other stood by and waited. When the men returned to
appellant’s house moments later, an officer approached the trash
container. After sifting through the trash, the officer discovered Birch’s
driver’s license inside a discarded coin purse. Appellant and Johnson
were arrested shortly thereafter.
The gun used to shoot Birch was found inside a swamp cooler
located inside appellant’s home. The cooler contained two additional
guns, ski masks, and ammunition. The three guns were linked
forensically to the Birch murder and two separate crimes.5

4 Appellant admitted he had brought a gun with him, but it was inside
his backpack during the robbery and murder of Birch.

5 One of the separate crimes was the shooting of William Antypas in
December 1996, less than one month before the Birch murder. The Antypas
shooting occurred after appellant, Johnson, and another accomplice (Brett
Moten), all wearing dark clothes, masks, and gloves and armed with

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 The jury was instructed under, inter alia, CALJIC Nos. 3.01
(aiding and abetting), 8.21 and 8.27 (aiding and abetting first-degree
felony murder based on the commission of robbery or burglary), and
8.80.1 (robbery- and burglary-murder special circumstance). CALJIC
No. 8.80.1 provided in part: “If you find that a defendant was not the
actual killer of a human being, or if you are unable to decide whether
the defendant was the actual killer or an aider and abettor, you cannot
find a felony murder special circumstance to be true unless you are
satisfied beyond a reasonable doubt that such defendant with the intent
to kill aided, abetted, . . . or assisted any actor in the commission of the
murder in the first degree, or with reckless indifference to human life
and as a major participant, aided, abetted, . . . or assisted in the
commission of the crime of robbery and/or burglary which resulted in
the death of a human being.” On count 1, the jury found appellant
guilty of murder. In finding both felony-murder special circumstances
true, the verdict states that appellant “aided and abetted” the murder
while engaged in the commission of robbery and burglary.
We affirmed appellant’s judgment of conviction in Mency I.
(Mency I, supra, at p. 1.) Among the contentions raised by appellant in
that appeal was that the felony murder conviction and the burglary-

handguns, confronted Elizabeth Cloran and Marc Hartman as they were
leaving their friend’s home. After forcing both to reenter the home, the men
ordered the victims to locate occupants of the house. Antypas, a resident in
the home, heard the commotion and armed himself with a gun. He
confronted the robbers, after which one of the robbers fired, striking Antypas
in the abdomen, chest, arm, hip, and hand.

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murder special circumstance finding (§ 190.2, subd. (a)(17)(G)) could not
be predicated on the burglary of Robinson’s vehicle. (Mency I, supra, at
pp. 1, 3.) We rejected the contention, finding nothing in the statutory
language excluding burglary of a vehicle from either the felony-murder
or the special circumstance statutes. (Id. at pp. 1–3.) We also clarified
that the relevant jury instruction, CALJIC No. 8.80.1, applied to the
Birch murder (appellant had argued the instruction specifically
referenced another murder not relevant to this appeal). (Id. at pp. 5–6.)
Appellant filed a petition for writ of habeas corpus in the superior
court in October 2016, in which he alleged that the jury’s true finding
on the robbery- and burglary-murder special circumstance allegations
were invalid under the Supreme Court’s then-recent decisions in Banks
and Clark. Following the appointment of counsel and receipt of
informal responses on the issue, the court summarily denied the habeas
petition, finding the evidence sufficiently established appellant’s role
under Banks and Clark as a major participant who acted with reckless
indifference to human life.
On January 4, 2019, appellant filed a petition for resentencing
pursuant to section 1170.95, claiming entitlement to relief because he
was convicted of first degree murder under a felony-murder theory or
the natural and probable consequences doctrine. Appellant requested
that counsel be appointed on his behalf. The court appointed counsel,
the People filed an opposition, and appellant filed a reply.
At a July 9, 2019 hearing, the court recognized that the jury had
never been instructed on the factors set forth in Banks and Clark. The

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court requested supplemental briefing on the jury’s special
circumstance findings in light of Banks and Clark. The People filed a
supplemental brief; appellant’s counsel did not.
At the second hearing on August 28, 2019, both parties submitted
on the court’s tentative decision to summarily deny the section 1170.95
petition. In a written ruling, the court found that appellant could not
establish a prima facie showing under section 1170.95, based on the
pre-Banks and Clark special circumstance findings. Defendant timely
filed a notice of appeal.6

DISCUSSION
1. Governing Law
The legislature enacted S.B. 1437 “to amend the felony murder
rule and the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a person who
is not the actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); accord,
§ 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
Section 1170.95, as enacted by S.B. 1437, permits individuals who
were convicted of felony-murder or murder under the natural and

6 Following appellant’s filing of the notice of appeal, he submitted to the
trial court 13 different filings relating to his section 1170.95 petition. The
court rejected or denied the filings, noting (among other issues) that
appellant had already filed his notice of appeal in this case. The court’s
rulings on these separate filings are not at issue here.

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probable consequences doctrine, but who could not be convicted of
murder following S.B. 1437’s changes to sections 188 and 189, to
petition the sentencing court to vacate the conviction and resentence on
any remaining counts. (§ 1170.95, subd. (a).) A petition for relief under
section 1170.95 must include a declaration by the petitioner that he is
eligible for relief under section 1170.95 based on all the requirements of
subdivision (a), the superior court case number and year of the
petitioner’s conviction, and a request for appointment of counsel, should
the petitioner seek appointment. (§ 1170.95, subd. (b)(2).)
Subdivision (c) of section 1170.95 provides: “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. . . . 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.” (See also Lewis, supra, 11 Cal.5th at p. 966
[subdivision (c) provides only for “a single prima facie” stage of review].)
To determine whether the petitioner has made a prima facie case
for section 1170.95 relief, the court “‘“takes petitioner’s factual
allegations as true and makes a preliminary assessment regarding
whether the petitioner would be entitled to relief if his or her factual
allegations were proved. If so, the court must issue an order to show
cause.”’ ([People v.] Drayton [(2020)] 47 Cal.App.5th [965,] 978, quoting
Cal. Rules of Court, rule 4.551(c)(1).) ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without first
conducting an evidentiary hearing.’ (Drayton, at p. 978, fn. omitted,

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citing In re Serrano (1995) 10 Cal.4th 447, 456.) ‘However, if the record,
including the court’s own documents, “contain[s] facts refuting the
allegations made in the petition,” then “the court is justified in making
a credibility determination adverse to the petitioner.”’ (Drayton, at
p. 979, quoting Serrano, at p. 456.)” (Lewis, supra, 11 Cal.5th at
p. 971.) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion.’
(Drayton, . . . at p. 980.)” (Id. at p. 972.)
If the trial court determines that a prima facie showing for relief
has been made, it must issue an order to show cause and 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).) During the evidentiary hearing, the prosecutor
and the petitioner may offer new or additional evidence to meet their
respective burdens. (§ 1170.95, subd. (d)(3).)

2. Analysis
The parties dispute whether the jury’s robbery- and burglary-
murder special circumstance findings made prior to Banks and Clark
preclude appellant from making a prima facie showing under section
1170.95, subdivision (c). Appellant asserts that these findings do not
preclude relief as a matter of law; the Attorney General asserts that
they do. Consistent with our prior decisions on this issue, we agree
with appellant.

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 As amended by S.B. 1437, subdivision (e) of section 189 provides
that participation in the perpetration or attempted perpetration of an
enumerated felony (here, robbery and burglary) in which a death occurs
renders a person liable for murder only if the person was the actual
killer, acted with the intent to kill as an aider and abettor, or 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. Section 190.2, subdivision (d), in turn, provides for a term of
punishment by death or life imprisonment without the possibility of
parole for persons “not the actual killer, [but] who, with reckless
indifference to human life” and as major participants, aid, abet or assist
in the commission of any 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. Section 190.2
lists robbery and burglary as qualifying felonies. (§ 190.2, subds.
(a)(17)(A), (a)(17)(G).)
The special circumstance findings in this case indicate that the
jury found that appellant, as an aider and abettor, either intended to
kill or acted with reckless indifference to human life as a major
participant in the robbery and burglary. However, because the jury
rendered its findings 15 years prior to the Banks and Clark decisions in
which it did not specify whether appellant acted with intent to kill, he is
not precluded from showing that he could not be convicted of first
degree murder as redefined by S.B. 1437. (Torres, supra, 46
Cal.App.5th at p. 1179.)

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 Our colleagues in Division Five of this district explained that the
“our Supreme Court’s decisions, clarifying what it means for an aiding
and abetting defendant to be a ‘major participant’ in an underlying
felony and to act with ‘reckless indifference to human life,’ construed
section 190.2, subdivision (d) in a significantly different, and narrower
manner than courts had previously construed the statute.” (Torres,
supra, 46 Cal.App.5th at p. 1179.) As such, the Court of Appeal ruled
that the trial court’s reliance on the robbery-murder special
circumstance that predated both Banks and Clark constituted
reversible error. (Ibid.)
Similar to Torres, the jury in this case made true findings under
section 190.2, subdivision (a)(17) before the decisions in Banks and
Clark. As such, when determining if appellant “could be convicted
today of first degree murder, we cannot simply defer to the jury’s pre-
Banks and Clark factual findings that [he] was a major participant who
acted with reckless indifference to human life as those terms were
interpreted at the time.” (Torres, supra, 46 Cal.App.4th at p. 1179;
accord, In re Miller (2017) 14 Cal.App.5th 960, 979–980.)
The Attorney General asserts that Torres was wrongly decided
and urges us instead to follow the reasoning of cases such as Galvan. In
that case, our colleagues in Division One reasoned that the defendant
and others like him are not entitled to relief under the plain language of
section 1170.95, because the present inability to convict them of murder
was not “‘because of changes’” made by S.B. 1437 (see § 1170.95, subd.
(a)(3) [petitioner entitled to relief because he “‘could not be convicted

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of . . . murder because of changes to Section[s] 188 or 189 made
effective’” Jan. 1, 2019]), but because of the “clarification of the
requirements for the special circumstance finding in Banks and Clark.”
(Galvan, supra, 52 Cal.App.5th at p. 1142.) The Galvan court also
reasoned that petitions under section 1170.95 are not “proper vehicle[s]”
for challenging a special circumstance finding, which must be
challenged through a habeas corpus proceeding. (Id. at p. 1141.)
This issue, which has divided the courts, is presently pending in
the Supreme Court.7 Mindful of the conflicts in the law, and pending
resolution by the Supreme Court, we continue to follow Torres.
Appellant’s section 1170.95 petition seeks to have his “murder
conviction vacated and to be resentenced” on any remaining counts.
(§ 1170.95, subd. (a); see York, supra, 54 Cal.App.5th at p. 260 [“[o]ur
analyses in Torres and Smith recognized that section 1170.95 permits a
petitioner to challenge a murder conviction”].) Because a petitioner’s
entitlement to section 1170.95 relief may require consideration of the
verdict (including any special circumstance findings), the Banks and
Clark decisions remain relevant for making such determination.

7 Compare York, supra, 54 Cal.App.5th at page 258, Harris, supra, 60
Cal.App.5th at page 957, Secrease, supra, 63 Cal.App.5th at page 259, with
Gomez, supra, 52 Cal.App.5th at page 17, Jones, supra, 56 Cal.App.5th at
page 483, and Nunez, supra, 57 Cal.App.5th at page 93.
The Supreme Court has granted review in People v. Strong (Dec. 18,
2020, C091162) [nonpub. opn.], review granted March 10, 2021, S266606, to
resolve the following issue: “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?”

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 The verdict in this case reveals true findings under section 190.2,
subdivision (a)(17). Because the jury was not instructed on the
standards as set forth in Banks and Clark, and because the jury did not
find that appellant was the actual killer, we cannot conclude that
appellant is precluded from relief as a matter of law at this stage of the
proceedings.
Notwithstanding its reliance on the special circumstance findings,
the trial court also referenced our opinion in Mency I and its prior order
summarily denying appellant’s habeas petition to find that appellant
was a major participant in the robbery and burglary who acted with
reckless indifference to human life. In a related argument, the Attorney
General asserts that we may review the record under Banks and Clark
as a matter of law, and affirm the trial court’s ruling under a harmless
error analysis.
We disagree with the trial court’s ruling and the Attorney
General’s argument. Nothing in appellant’s record of conviction
establishes as a matter of law that he acted with reckless indifference
as a major participant during the robbery and/or burglary in accordance
with standards established by Banks and Clark. (See Banks, supra, 61
Cal.4th at p. 803, fn. 5; Clark, supra, 63 Cal.4th at pp. 618–623; People
v. Clements (2021) 60 Cal.App.5th 597, 613 [whether and to what extent
a prior opinion is probative in a specific case depends on the
circumstances, as “the issues on appeal [may] implicate different facts
than a later resentencing petition”], rev. granted, Apr. 28, 2021,
S267624.) Nor can the trial court’s summary denial of appellant’s

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habeas petition serve as res judicata in future proceedings. (See Torres,
supra, 46 Cal.App.5th at p. 1180, fn. 4; Gomez v. Superior Court (2012)
54 Cal.4th 293, 305, fn. 6.) Thus, while appellant is not entitled to
resentencing at this stage of the proceedings, he is entitled to an
evidentiary hearing pursuant to section 1170.95, subdivision (d), to
determine whether he could now be convicted of felony murder.
In light of our conclusion, we do not agree with the Attorney
General that any of the errors discussed above were harmless under the
principles set forth in People v. Watson (1956) 46 Cal.2d 818. The
Supreme Court recently clarified in Lewis that a trial court’s authority
at this stage of review is “limited,” in that it may not “engage in
‘factfinding involving the weighing of evidence.’” (Lewis, supra, at
p. 972, quoting Drayton, supra, 47 Cal.App.5th at p. 980.) We decline
the Attorney General’s request to engage in that very exercise.
//
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 DISPOSITION
The order summarily denying appellant’s section 1170.95 petition
is reversed, and the matter is remanded with directions to issue an
order to show cause and to proceed consistent with section 1170.95,
subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.
We concur:

COLLINS, J.

CURREY, J.

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