Filed 9/27/21 P. v. Martin CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091375
Plaintiff and Respondent, (Super. Ct. No. 05F11358)
v.
RAYMOND DAVID MARTIN,
Defendant and Appellant.
Defendant Raymond David Martin appeals from the trial court’s order denying his
petition for resentencing brought pursuant to Penal Code section 1170.95.1 Defendant
argues the trial court erred when it determined that his conviction for first degree murder
with robbery and burglary special circumstances precluded his eligibility for relief. We
affirm.
1 Undesignated statutory references are to the Penal Code.
1
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, a jury found defendant guilty of first degree murder (§ 187), assault with
a firearm (§ 245, subd. (b)), first degree burglary (§ 459), and robbery (§ 211), and found
true special circumstance allegations of robbery murder (§ 190.2, subd. (a)(17)) and
burglary murder (§ 190.2, subd. (a)(17)), and that a principal was armed with a firearm
during the commission of the crimes. (§ 12022, subd. (a)).
The convictions resulted from an attempted home invasion robbery of a drug
dealer by defendant and his two codefendants, Vincent Gregory and Stanley Mason.
During the robbery, Gregory shot and killed a man and shot the man’s girlfriend in the
leg. This court affirmed defendant’s conviction on appeal.
In 2019, defendant filed a section 1170.95 petition for resentencing, seeking to
vacate his murder conviction on the ground that he could no longer be convicted of first
degree murder because of changes made to sections 188 and 189, effective January 1,
2019. The trial court appointed counsel and ordered a briefing schedule for the People’s
response to the petition and defendant’s reply.
After the parties submitted their briefs, the court denied the petition, finding
defendant failed to show he fell within the provisions of section 1170.95 and therefore
failed to make a prima facie showing of eligibility for relief. Specifically, the court found
relevant that a jury unanimously found defendant guilty of first degree murder and also
found true the burglary-murder and a robbery-murder special circumstances. The jury’s
findings, including special circumstances, were then upheld on appeal. Thus, the court
concluded defendant was ineligible for relief under section 1170.95 because “Penal Code
§§ 187 [sic] and 189 still provide for first degree murder based on burglary-murder and
robbery-murder, when the trier of fact has found beyond a reasonable doubt that the
defendant either was the actual killer, intended to kill, or was a major participant who
acted in the burglary and robbery with reckless indifference to human life, as a
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unanimous jury in [defendant’s case] necessarily found,” and the jury’s special
circumstances findings have not been vacated.
DISCUSSION
I
Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January 1,
2019, was enacted “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).) The legislation accomplished this by
amending sections 188 and 189 and adding section 1170.95 to the Penal Code.
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.” (§ 188, subd. (a)(3).) Section 189, subdivision (e)
now limits the circumstances under which a person may be convicted of felony murder:
“A participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) [defining first degree murder] 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 indifference to human life, as described in
subdivision (d) of Section 190.2.”
Senate Bill No. 1437 also added section 1170.95, which allows those “convicted
of felony murder or murder under a natural and probable consequences theory [to] file a
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petition with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of first degree or second degree murder following a trial . . . .
[¶] (3) The petitioner could not be convicted of first or second degree murder because of
changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
As relevant here, once a complete petition is filed, “[t]he 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 response is served. . . . 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.” (§ 1170.95, subd. (c).)
II
Special Circumstances
Defendant argues the trial court erred when it determined the special circumstance
finding conclusively established his ineligibility for resentencing because the jury
necessarily concluded that he was either the actual killer, a major participant, or acted
with reckless indifference. He contends that the special circumstances findings in this
case do not necessarily bar his section 1170.95 relief because, after the jury made its
findings in this case, our Supreme Court issued two opinions that clarified and narrowed
the definitions of “major participant” and “reckless indifference to human life.” (People
v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63 Cal.4th 522 (Clark).)
Relying on People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020,
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S262011 (Torres), defendant asserts Banks and Clark require further litigation of his case
to determine his eligibility for relief, and specifically, that the matter should be remanded
for the trial court to issue an order to show cause for an evidentiary hearing under section
1170.95.
The Attorney General responds that Torres was wrongly decided, and although
Banks and Clark enabled defendants to file new habeas corpus petitions attacking their
special circumstance convictions, “section 1170.95 does not provide defendants with a
generalized collateral attack on their convictions.” Rather, the Attorney General argues,
a defendant must first seek habeas relief on a special circumstance conviction and, if
successful, can then proceed through the section 1170.95 process.
While briefing in this case was ongoing, the Fourth Appellate District, Division
One in People v. Gomez (2020) 52 Cal.App.5th 1, review granted October 14, 2020,
S264033, and the Second Appellate District, Division One in People v. Galvan (2020)
52 Cal.App.5th 1134, review granted October 14, 2020, S264284 (Galvan), issued
opinions supportive of the Attorney General’s position. (See People v. Murillo (2020)
54 Cal.App.5th 160, review granted Nov. 18, 2020, S264978.) More recently, Division
Five of the Second Appellate District, in People v. York (2020) 54 Cal.App.5th 250,
review granted November 18, 2020, S264954 (York), followed Torres and criticized
Galvan. (See People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020,
S262835.) The Second Appellate District, Division One then issued People v. Allison
(2020) 55 Cal.App.5th 449 (Allison) in direct response to York. (Allison, at p. 449.)
Most recently, the Fourth Appellate District, Division Two followed Allison in People v.
Jones (2020) 56 Cal.App.5th 474, review granted January 27, 2021, S265854, as did the
Second Appellate District, Division Two in People v. Nunez (2020) 57 Cal.App.5th 78,
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review granted January 13, 2021, S265918.2 As we will explain, we find Galvan and
Allison more persuasive on this issue than the cases to the contrary.
In 1990, our electorate enacted section 190.2, which defines felony-murder special
circumstances under subdivision (d) consistently with the holding in Tison v. Arizona
(1987) 481 U.S. 137 [95 L.Ed.2d 127]. (In re Scoggins (2020) 9 Cal.5th 667, 674-675.)
Later, our Supreme Court’s decisions in Banks and Clark clarified “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,’ [and] 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, review granted; see Galvan,
supra, 52 Cal.App.5th at p. 1141, review granted.) In Galvan, the appellate court
acknowledged these changes to section 190.2, subdivision (d) and considered whether a
defendant could relitigate his special circumstance conviction using section 1170.95.
(Galvan, at p. 1141.) There, as here, the defendant was convicted of first degree murder
with a special circumstance finding under section 190.2, subdivision (a)(17) made before
Banks and Clark were decided. (Galvan, at pp. 1138-1139.) On appeal, the defendant,
like defendant here, argued that Banks and Clark had altered the meaning of “major
participant” and “reckless indifference to human life” such that he was entitled to
reconsideration of the conviction under section 1170.95. (Galvan, at p. 1137.)
The Galvan court first considered the relevant statutory language: “In order to be
eligible for resentencing, a defendant must show that he or she ‘could not be convicted of
first or second degree murder because of changes to Section[s] 188 or 189 made
effective’ as part of Senate Bill No. 1437.” (Galvan, supra, 52 Cal.App.5th at p. 1142,
2 Although certain of those cases also concern the appropriate stage in the
section 1170.95 proceedings for appointment of counsel, this case does not, as the trial
court appointed counsel for defendant and received briefing prior to denying the petition.
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review granted, italics added; § 1170.95, subd. (a)(3), italics added.) The court
concluded that as to Galvan the requirement was not met, because “[a]lthough [the
defendant] is asserting that he could not now be convicted of murder, the alleged inability
to obtain such a conviction is not ‘because of changes’ made by Senate Bill No. 1437, but
because of the clarification of the requirements for the special circumstance finding in
Banks and Clark. Nothing about those requirements changed as a result of Senate Bill
No. 1437. Just as was the case before that law went into effect, the special circumstance
applies to defendants who were major participants in an underlying felony and acted with
reckless indifference to human life. If [the defendant] 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.” (Galvan, at p. 1142.)
The Galvan court also observed that permitting defendants to relitigate a special
circumstance finding by way of a section 1170.95 petition would “give [them] an
enormous advantage over other similarly situated defendants based solely on the date of
[their] conviction.” (Galvan, supra, 52 Cal.App.5th at p. 1142, review granted.)
“Defendants convicted after the Supreme Court issued its decisions in 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 special
circumstance findings 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.)
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Defendant urges us to follow Torres, supra, 46 Cal.App.5th 1168, review granted,
which also addressed the denial of a section 1170.95 petition based on the changes made
by Banks and Clark. The Torres court concluded the summary denial of the defendant’s
petition based on the pre-Banks/Clark special circumstance finding raised the “possibility
that [the defendant] was punished for conduct that is not prohibited by section 190.2 as
currently understood, in violation of [the defendant’s] constitutional right to due process”
and, as relevant here, reversed and remanded. (Torres, at p. 1180.)
Torres had already sought habeas relief, claiming the special circumstance finding
was no longer valid; his petition for relief had been denied. (Torres, supra,
46 Cal.App.5th at p. 1180, fn. 4, review granted.) The appellate court considered
whether that habeas corpus petition precluded the section 1170.95 petition but did not
opine on whether habeas relief was more appropriate in light of section 1170.95’s
statutory language.
In York, supra, 54 Cal.App.5th 250, review granted, the appellate court did
consider whether a habeas corpus petition was a preferable route to relief. (Id. at pp. 258-
259.) The York court reviewed the language of section 1170.95, subdivision (d)(2),
which provides a streamlined path to relief under section 1170.95 if a defendant has “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.” Because the statute does not
include a counterpart to this subdivision accounting for a situation where there is a prior
finding that a petitioner did act with reckless indifference to human life and was a major
participant in the underlying felony, the court reasoned such a finding should not
preclude a petitioner from relief. (York, at pp. 260-261.) The court concluded Galvan
was incorrect when it concluded the defendant there could only avail himself of relief
“because of” Banks and Clark, rather than Senate Bill No. 1437. Absent Senate Bill
No. 1437, a successful Banks and Clark challenge would invalidate only the special
8
circumstance finding, whereas a successful section 1170.95 petition would invalidate a
murder conviction. (York, at p. 261.)
The Allison court addressed York after ordering briefing on the precise issue here:
“Whether the trial court properly relied on [the defendant’s] admission of felony-murder
special circumstances (§ 190.2, subd. (a)(17)) as the sole basis for finding that he had not
made a prima facie showing that he was entitled to relief.” (Allison, supra,
55 Cal.App.5th at p. 456.) The Allison court first emphasized that section 1170.95
requires a prima facie showing by petitioner that he “ ‘could not be convicted of . . .
murder because of changes to Section 188 or 189 made’ in Senate Bill No. 1437.”
(Allison, at p. 457.) It noted that the requirements for a finding of felony murder under
the newly amended version of section 189 were identical to the requirements of the
felony-murder special circumstance that had been in effect at the time of the challenged
murder conviction (in the Allison case, 1997; in the instant case, 2008). (Allison, at
p. 457.) Thus, the special circumstance finding showed “as a matter of law that Allison
could still be convicted of felony murder even under the newly amended version of
section 189” and precluded a prima facie showing of eligibility. (Ibid.)
The Allison court disagreed with the argument to the contrary embraced by York,
that because no court had examined whether there was a factual basis for the special
circumstance finding since Banks and Clark were decided, the finding was insufficient to
show ineligibility as a matter of law. (Allison, supra, 55 Cal.App.5th at pp. 457-458.)
We agree with the Allison court that Banks and Clark did not change the law, but merely
clarified the same principles that existed earlier. (See Allison, at p. 458; see also In re
Miller (2017) 14 Cal.App.5th 960, 978.) As the Allison court noted, the pattern jury
instructions remain the same; Banks and Clark merely resulted in the addition of optional
language thereto. (Allison, at p. 458.)
We further observe that the language in section 1170.95, subdivision (d)(2)
anticipates, rather than precludes, the possibility of habeas relief before a section 1170.95
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petition because one way to obtain a “prior finding” that meets the subdivision’s
requirements is via habeas corpus. (In re Ramirez (2019) 32 Cal.App.5th 384, 406.) If a
defendant has successfully obtained such relief, the trial court must provide the petitioner
access to section 1170.95 relief. Nothing precludes relief under section 1170.95—the
language simply presumes a petitioner will pursue alternative relief first.
Finally, we disagree that reliance on a special circumstance finding to determine
that a defendant cannot make a prima facie case for resentencing as a matter of law
requires the trial court to make “a separate determination concerning the validity of the
special circumstance.” (York, supra, 54 Cal.App.5th at p. 262, review granted.) Such
reliance on the jury finding requires only a simple review of the record to determine
whether the factfinder found the special circumstance to be true and what that finding
entailed. Such a review of prior proceedings is fully contemplated by section 1170.95,
subdivision (c) and has been recently upheld by our Supreme Court in People v. Lewis
(2021) 11 Cal.5th 952, 970-972, which explained: “The record of conviction will
necessarily inform the trial court’s prima facie inquiry under section 1170.95, allowing
the court to distinguish petitions with potential merit from those that are clearly meritless.
This is consistent with the statute's overall purpose: to ensure that murder culpability is
commensurate with a person's actions, while also ensuring that clearly meritless petitions
can be efficiently addressed as part of a single-step prima facie review process.
(See Stats. 2018, ch. 1015, § 1, subd. (f).).” (Id. at p. 971.)
We find the Allison court’s responses to York persuasive, and the analyses of
Allison and Galvan, considered together, convince us that the appropriate avenue for
defendant’s challenge to the special circumstance allegations is through a petition for writ
of habeas corpus, rather than the section 1170.95 petition filed in this case. (See In re
Miller, supra, 14 Cal.App.5th at pp. 979-980 [permitting habeas corpus challenge to
special circumstance conviction].) The trial court did not err when it denied defendant’s
petition.
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DISPOSITION
The trial court’s order is affirmed.
/s/
BLEASE, Acting P. J.
We concur:
/s/
HULL, J.
/s/
RENNER, J.
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