People v. Berry CA2/2

Filed 10/6/21 P. v. Berry 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B303420

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA057902)
v.

TRAVIS WAYNE BERRY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Larry Fidler, Judge. Affirmed.
Laura Schaefer, 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, Idan Ivri and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
 Defendant and appellant Travis Wayne Berry (defendant)
appeals from the denial of his petition for resentencing under
Penal Code section 1170.95.1 Defendant contends that he made a
prima facie showing of entitlement to relief under the statute,
such that the trial court was required to issue an order to show
cause (OSC) and hold an evidentiary hearing on the issue.
Defendant also contends that the trial court erred in relying on
the record of conviction and special circumstance findings to find
that he was ineligible for relief under the statute as a matter of
law. Finding no merit to defendant’s contentions, we affirm the
order.

BACKGROUND
In 1993, a jury convicted defendant and codefendant
Anthony Fitzpatrick of two counts of first degree murder (§ 187),
one count each of second degree robbery (§ 211), and kidnapping
(§ 207, subd. (a)). As to each murder, the jury found true the
kidnapping and robbery special circumstances alleged under
section 190.2, former subdivision (a)(17)(i) and (ii), as well as the
multiple-murder special circumstance alleged under section
190.2, subdivision (a)(3). Defendant was sentenced to two terms
of life imprisonment without the possibility of parole for the
murders, and terms imposed for the robbery and the kidnapping
were stayed pursuant to section 654.
The judgment was affirmed on appeal in People v.
Fitzpatrick (Sept. 19, 1995, B079323) (nonpub. opn.), and the
California Supreme Court denied review. We summarize the

1 All further statutory references are to the Penal Code,
unless otherwise indicated.

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evidence as set forth in the opinion in that appeal. In January
1992, defendant, Fitzpatrick and two others robbed two victims of
marijuana and money at gunpoint at Fitzpatrick’s home. The
victims were then forced into a car and driven to an avocado
grove where Fitzpatrick shot and killed one of the victims, and a
codefendant shot and killed the other victim.
In March 2019, defendant filed a petition for resentencing
pursuant to section 1170.95. Defendant checked nearly every box
on the preprinted form, resulting in the following allegations:
that defendant had been convicted of first or second degree
murder pursuant to the felony-murder rule or the natural and
probable consequences doctrine; that he could not now be
convicted of murder because of changes to sections 188 and 189;
that he was not the actual killer, did not with the intent to kill or
aid, abet, counsel, command, induce, solicit, request, or assist the
actual killer in the commission of murder in the first degree; that
he was not a major participant in the felony or act with reckless
indifference to human life during the course of the crime or
felony; and that the victim was not a peace officer in the
performance of his or her duties.2 Defendant requested
appointment of counsel. Attached to defendant’s section 1170.95

2 Defendant also checked the box for the following allegation:
“There has been a prior determination by a court or jury that I
was not a major participant and/or did not act with reckless
indifference to human life under Penal Code § 190.2(d).
Therefore, I am entitled to be re-sentenced pursuant to
§ 1170.95(d)(2).” There is no evidence or other indication in the
record of any such prior determination.

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petition is a petition for writ of habeas corpus dated March 11,
2019, a memorandum of points and authorities, and exhibits.3
Both petitions were served on the district attorney, who
obtained an extension of time to file an informal response.
Counsel was appointed for defendant. After both sides filed
briefs the trial court scheduled a hearing, heard the argument of
counsel, and took the matter under submission. On
December 13, 2019, the trial court issued an order denying the
section 1170.95 petition.4 In its written order, the trial court
ruled that the jury’s true findings as to the three special
circumstance allegations rendered defendant ineligible for section
1170.95 relief. The court found that the jury was instructed that
in order to find a murder special circumstance to be true as to a
nonkiller, it had to find the nonkiller acted with intent to kill.
The trial court also found, based upon the statement of facts in
the appellate opinion, that defendant “was indeed a major
participant who acted with reckless indifference to human life.”

3 The disposition of the habeas petition does not appear in
the appellate record. In a footnote of his opening brief, defendant
states: “Although the court presided over a hearing on
[defendant’s] writ of habeas corpus . . . , the court did not indicate
it denied the instant petition based on any findings made in that
separate proceeding.” Defendant cites page 4 of the reporter’s
transcript of the hearing on defendant’s section 1170.95 petition,
which reflects the trial court’s statement that it had read and
considered all the moving papers in this matter, and was “also
extremely familiar with this case, having conducted a lengthy
evidentiary hearing on the original habeas corpus.”
4 The order states that an OSC issued; defendant represents
that it was not.

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 Defendant filed a timely notice of appeal from the court’s
order.

DISCUSSION
I. Section 1170.95 procedure
Defendant contends that he made a prima facie showing of
entitlement to relief under section 1170.95, such that the trial
court was required to issue an OSC and hold an evidentiary
hearing on the issue.
Section 1170.95 provides a procedure to obtain vacatur and
resentencing if (1) “[a] complaint, information, or indictment was
filed against [him] that allowed the prosecution to proceed under
a theory of felony murder or murder under the natural and
probable consequences doctrine,” (2) he “was convicted of first
degree or second degree murder following a trial,” and (3) he
“could not be convicted of first or second degree murder because
of changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a).)
The statutory procedure requires that upon the filing of a
facially sufficient petition, the trial court must appoint counsel,
entertain briefing, and then determine whether a petitioner has
made a prima facie case for relief under section 1170.95,
subdivision (c). (People v. Lewis (2021) 11 Cal.5th 952, 957
(Lewis).) If so, the trial court must issue an OSC and schedule a
hearing at which the prosecution bears the burden of proving
beyond a reasonable doubt that the petitioner is ineligible for
section 1170.95 relief. (§ 1170.95, subd. (d)(1) & (3).)
II. Record of conviction
Defendant argues that the court should not have looked to
the record of conviction to determine whether he had made a

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prima facie showing, but should instead have determined the
issue solely from the allegations of his section 1170.95 petition,
and as they were facially sufficient, the court should have issued
an OSC. We disagree.
In Lewis, supra, 11 Cal.5th 952, our Supreme Court held
that if a defendant files a facially compliant petition and requests
the appointment of counsel, the trial court must appoint counsel
and entertain briefing regardless of whether the record of
conviction unequivocally demonstrates that the defendant is not
entitled to relief. (See id. at pp. 957, 962-963, 971-972.)
However, after counsel has been appointed and both sides have
filed briefs, the trial court and “the parties can, and should, use
the record of conviction to aid the trial court in reliably assessing
whether a petitioner has made a prima facie case for relief under
[section 1170.95,] subdivision (c).” (Id. at pp. 957, 972.) Here,
counsel was appointed and defendant was given the opportunity
for briefing. The trial court thus did not err in reviewing the
record of conviction.
III. Effect of special circumstances on eligibility
In finding the special circumstances true the jury
necessarily found either that defendant was the actual killer or
an aider and abettor who harbored an intent to kill, findings that
would make defendant guilty of murder under the amended law.
(See §§ 189, subd. (e)(3), 1170.95, subd. (a.).) Either finding
makes defendant ineligible as a matter of law, and as we have
previously held, the jury’s factual findings may not be relitigated
in a section 1170.95 proceeding, but must first be challenged by
way of habeas corpus or other available collateral attack. (People
v. Nunez (2020) 57 Cal.App.5th 78, 84-87 (Nunez), review granted

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Jan. 13, 2021, S265918.) Thus the trial court did not err in
denying the petition on this ground.
Defendant disagrees with Nunez and renews the argument
made below that ineligibility under the statute was not
established as a matter of law by true findings on the kidnapping
and robbery special circumstance allegations because he was not
a major participant who acted with reckless indifference to
human life, the jury instructions were confusing, and the
prosecution argument was misleading. The prosecutor argued at
trial that the kidnapping and robbery special circumstances could
be found true as to nonshooters without a finding of intent to kill
if it was proven that the nonshooter was a major participant in
the underlying felony and acted with a reckless disregard for
human life. The robbery and kidnapping murder special
circumstances require that a nonkiller defendant either have the
intent to kill or be a major participant and act with reckless
indifference to human life. (§ 190.2, subds. (c) & (d).) Defendant
represents that the jury was not instructed with regard to
reckless disregard, citing the prosecutor’s statement to that effect
in the section 1170.95 hearing.
Defendant relies on People v. York (2020) 54 Cal.App.5th
250, review granted November 18, 2020, S264954, as authority
for his contention that the special circumstances findings may be
challenged in a section 1170.95 proceeding. We disagreed with
York in Nunez, supra, 57 Cal.App.5th at page 93, review granted,
but even if we agreed with it, York would be of no help to
defendant. York held that a section 1170.95 petitioner could
challenge a finding that he was a major participant who acted
with reckless disregard for human life, if that finding was made
before the California Supreme Court clarified the law on this

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point in People v. Banks (2015) 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522. (York, supra, at pp. 258-263.) Here,
in addition to the kidnapping and robbery special circumstances,
the jury found true the multiple-murder special circumstance
alleged under section 190.2, subdivision (a)(3). As applied to a
defendant who was not the actual killer, the multiple-murder
special circumstance requires that a defendant have the intent to
kill. (§ 190.2, subd. (c).) The intent to kill was also required for
nonkillers at the time of defendant’s crimes. (See People v.
Wader (1993) 5 Cal.4th 610, 638-639.) Defendant has not
identified in York or other authority a holding that would permit
challenging that finding in a section 1170.95 proceeding. Nor has
defendant identified any change or clarification of that special
circumstance since his conviction that might justify a challenge
similar to the challenge permitted in York.
Defendant argues that the instructions and the prosecutor’s
argument on the special circumstances were erroneous, confusing
and contradictory such that they could not establish as a matter
of law that he was ineligible for section 1170.95 relief. He asserts
that there is no need to relitigate the facts underlying the jury’s
special circumstances findings because this issue presents a pure
question of law on undisputed facts in the record. We disagree.
The instruction defendant finds confusing and erroneous was
CALJIC No. 8.80.1. Defendant quotes the reporter’s transcript
that to find the special circumstances true as to a nonkiller, the
jury must find that the defendant, with the intent to kill, aided
and abetted “any act or in the commission of the murder of the
first degree.” (Italics added.) As written, CALJIC No. 8.80.1
instructs that to find the special circumstances true as to a
nonkiller, the jury must find that the defendant, with the intent

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to kill, aided and abetted “any actor in the commission of the
murder in the first degree.” (Italics added.) The written
instruction was in the record of conviction.
Defendant’s claim is not that CALJIC No. 8.80.1 is an
erroneous statement of law but that it was read in such a way the
jury could have misconstrued it, particularly in light of the
prosecution argument. Defendant does not suggest how it can be
determined as a matter of law that the court misspoke, and this
was not a transcription error. Respondent observes that “[i]t is
generally presumed that the jury was guided by the written
instructions.” (People v. Davis (1995) 10 Cal.4th 463, 542.)
Moreover, the prosecutor’s argument regarding the
multiple-murder special circumstance (§ 190.2, subd. (a)(3)) was
correct and not misleading. She told the jury: “The non-shooter.
We have to find that they have an intent to kill. That’s on the
multiple murder.” Thus, even if we agreed that due to the
prosecutor’s argument regarding the kidnapping and robbery
special circumstances those true findings cannot render
defendant ineligible as a matter of law, the multiple-murder
finding would remain a valid basis. Section 1170.95 provides for
the dismissal of special allegations and resentencing only after
the petition is granted and the murder conviction has been
vacated. (See § 1170.95, subds. (c) & (d).) There is no provision
in the statute for vacating one or more special circumstance
allegations when the petitioner does not otherwise qualify for
vacatur of the murder conviction.
We conclude that defendant’s section 1170.95 was not the
appropriate vehicle to challenge the special circumstance findings
and that since the findings have not been vacated by means of
habeas corpus or other collateral attack, they remain a bar to

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defendant’s entitlement to relief under section 1170.95. Thus the
trial court did not err in denying the petition.

DISPOSITION
The order denying the section 1170.95 petition is affirmed.

________________________
CHAVEZ, J.

I concur:

________________________
LUI, P. J.

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People v. Berry, B303420

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

I agree with the majority that the trial court properly
denied defendant Travis Wayne Berry’s petition for resentencing
under Penal Code section 1170.95.1 In finding the special
circumstances true, the jury necessarily found either that
defendant was an aider and abettor who harbored an intent to
kill or a major participant who acted with reckless indifference to
human life, findings that would make him guilty of murder under
the amended law. (See §§ 189, subd. (e)(3), 1170.95, subd. (a).)
Either finding makes defendant ineligible as a matter of law.
(People v. Jones (2020) 56 Cal.App.5th 474, 482, review granted
Jan. 27, 2021, S265854; People v. Allison (2020) 55 Cal.App.5th
449, 457; People v. Gomez (2020) 52 Cal.App.5th 1, 14–17, review
granted Oct. 14, 2020, S264033; People v. Galvan (2020) 52
Cal.App.5th 1134, 1141–1143, review granted Oct. 14, 2020,
S264284; but see People v. Torres (2020) 46 Cal.App.5th 1168,
1179–1180, review granted June 24, 2020, S262011; People v.
Smith (2020) 49 Cal.App.5th 85, 93–94, review granted July 22,
2020, S262835; People v. York (2020) 54 Cal.App.5th 250, 258–
263 (York), review granted Nov. 18, 2020, S264954; People v.
Harris (2021) 60 Cal.App.5th 939, 956–958, review granted
Apr. 28, 2021, S267802; People v. Secrease (2021) 63 Cal.App.5th
231, 236, 247, review granted June 30, 2021, S268862.)
And, the jury’s special circumstance findings are supported
by substantial evidence through the prism of People v. Banks

1 All further statutory references are to the Penal Code
unless otherwise indicated.
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63
Cal.4th 522 (Clark). (People v. Secrease, supra, 63 Cal.App.5th at
p. 255.) In assessing whether substantial evidence supports a
finding, we view the record in the light most favorable to that
finding. (People v. Albillar (2010) 51 Cal.4th 47, 60.) That
evaluation leads to the conclusion that the jury’s findings must
stand—defendant was either a major participant who acted with
reckless indifference to human life or an aider and abettor who
harbored intent to kill.
As summarized in our prior opinion, defendant was an
active participant in the crimes. He was present at codefendant
Anthony Fitzpatrick’s (Fitzpatrick) house where the two victims
were tied up, and codefendants had guns pointed at them. He
and Fitzpatrick later left the house only to return with handcuffs
with which they secured the victims’ hands behind their backs.
Thereafter, defendant drove the victims’ car into the backyard,
and defendant and his codefendants loaded the victims into the
car. A codefendant drove the victims to the avocado field, and
defendant and others followed in a Volkswagen. After the
shootings, defendant and the others ran to the Volkswagen and
drove away. (People v. Fitzpatrick (Sept. 19, 1995, B079323
[nonpub. opn.], at pp. 2–4.) This evidence overwhelmingly
demonstrates, even under the heightened standard set forth in
Banks and Clark, that defendant was either an aider and abettor
who acted with intent to kill or a major participant in the crimes
who acted with reckless indifference to human life. Thus, relief
under section 1170.95 is unavailable as a matter of law.
Pursuant to my concurring opinion in People v.
Nunez (2020) 57 Cal.App.5th 78, 97–99, review granted
January 13, 2021, S265918, I do not join in the majority’s

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conclusion that the jury’s findings “must first be challenged by
way of habeas corpus or other available collateral attack.” (Maj.
Opn., at p. 6.)
I also disagree with the majority’s discussion of York,
supra, 54 Cal.App.5th at page 250. Citing pages 258 through
263, the majority writes: “York held that a section 1170.95
petitioner could challenge a finding that he was a major
participant who acted with reckless disregard for human life, if
that finding was made before” Banks and Clark. (Maj. Opn., at
p. 7.) I read York differently. I read York as holding that “section
1170.95 does not create a mechanism to challenge a special
circumstance allegation.” (York, supra, at p. 260.) Rather, a
defendant who files a section 1170.95 petition is challenging his
murder conviction, and “[t]he fact that the special circumstance
finding will be vacated as a result of a successful challenge to the
murder conviction does not mean the special circumstance itself
was challenged in the section 1170.95 proceeding.” (York, at
p. 260.)

__________________________, J.
ASHMANN-GERST

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