People v. Yuriar CA2/3

Filed 10/19/21 P. v. Yuriar CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B305575

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA038224)
v.

JOSE YURIAR,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Raul A. Sahagun, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General,
Idan Ivri and Allison H. Chung, Deputy Attorneys General, for
Plaintiff and Respondent.
________________________
 In 1993, a jury convicted Jose Yuriar of the first degree
murder of an undercover police officer, and found true the special
circumstance allegation that the murder was committed while
Yuriar was engaged in the commission of attempted robbery. In
2019, Yuriar petitioned for vacation of his murder conviction and
resentencing pursuant to Penal Code section 1170.95.1 The trial
court denied the petition, and Yuriar appeals. We conclude that
although the trial court erred by failing to appoint counsel for
Yuriar, the error was harmless. We therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND2
1. The murder, Yuriar’s conviction, and original appeal
In May and June of 1990, Fullerton police officers were
conducting a “reverse sting” operation involving a large quantity
of cocaine.3 A confidential informant facilitated discussions
between undercover officer Tommy DeLaRosa and potential
purchasers. After numerous meetings and phone calls involving
multiple people, Jose Rodriguez agreed to buy 200 kilos of
cocaine. The exchange was set to take place at a residence on
Arrington in Downey. On the afternoon of June 21, 1990,
DeLaRosa drove with Rodriguez, in a van containing the cocaine,
to the Arrington residence. Several police officers followed them,

1
All further undesignated statutory references are to the
Penal Code.

2
We derive the factual and procedural background in part
from our unpublished opinion in this case, of which we have
taken judicial notice at respondent’s request. (Evid. Code, §§ 451,
459.)
3
A “reverse sting” occurs when police officers pose as sellers
of previously seized narcotics.

2
keeping their distance to avoid detection; 25 additional officers
and a police helicopter conducted surveillance of the men as they
approached the house. The Arrington property was comprised of
two houses, separated by a patio. When DeLaRosa walked down
the driveway and into the house, he disappeared from the view of
the surveilling officers. He was immediately ambushed by
Rodriguez and persons inside the residence, including Yuriar and
codefendants Jesus Araclio and Raul Meza. Shot five times,
DeLaRosa succumbed to his injuries. Before he died, he was able
to return fire, killing Rodriguez and wounding Yuriar and
Araclio.
Immediately after the shooting, Araclio and Yuriar ran
across the street to a neighbor’s home and entered without
knocking. Despite the neighbor’s command to get out, they hid in
a bathroom after stowing a Colt Super .38-automatic handgun
and a sawed-off Browning pump action shotgun in the neighbor’s
bedroom. Police discovered the men and the guns in the house.
The evidence showed Rodriguez fired nine shots from a
nine-millimeter gun, hitting DeLaRosa at least twice. Araclio
fired the Colt Super .38-automatic four times. Yuriar fired the
shotgun once. Meza also fired shots, using a gun that police later
found in a nearby dumpster.
Yuriar’s jury was instructed on felony murder, aiding and
abetting, and a robbery-murder special circumstance allegation.
It was not instructed on the natural and probable consequences
doctrine.
The jury convicted Yuriar of first degree murder (§ 187,
subd. (a)) and attempted robbery (§§ 664, 211), and found true
the special circumstance allegation that the murder was
committed during commission of an attempted robbery (§ 190.2,

3
subd. (a)(17)(A)). It also found Yuriar personally used a firearm
in commission of the offenses (§ 12022.5, subd. (a)) and that a
principal was armed with a firearm (§ 12022, subd. (a)(1)). The
trial court sentenced Yuriar to life in prison without the
possibility of parole (LWOP), plus four years.
A different panel of this Division affirmed Yuriar’s
convictions in 1996. (People v. Meza et al. (Feb. 27, 1996,
B090632) [nonpub. opn.].) Among other things, the court rejected
the contention that the trial court committed instructional error
by failing to define “reckless indifference” in the jury instruction
on the special circumstance allegation. The court held that there
was no sua sponte duty to define “reckless indifference,” a phrase
commonly understood to mean conscious disregard for the
possibly fatal consequences of one’s actions.
The court further reasoned: “From the evidence in the
present case, it appears appellants actively participated in the
killing of DeLaRosa by ambushing him in a cross-fire, and
clearly, they intended to kill him. They were not minor
participants without the criminal intent to kill.” “[A]lthough
appellants were charged with a special circumstance which made
them eligible for the death penalty, the jury chose not to impose
such a sentence, and any error, if there was one, was harmless
beyond a reasonable doubt, since, under the circumstance[s], the
verdict could not have been affected. [Citation.] Meza was an
actual killer and Yuriar and Araclio were, if anything, aiders and
abettors, not only to the robbery, but to the murder of DeLaRosa.
DeLaRosa was killed within minutes of his arrival on the
premises. The people shooting, including Yuriar and Araclio,
intended to kill him immediately so they could take the cocaine
they thought was in his van. Both Yuriar and Araclio fired at

4
DeLaRosa as he ran from the house after the shooting began.
Appellants did not act merely with reckless indifference to
human life, and from the evidence, no reasonable jury could have
found this to be true. Clearly, appellants subjectively
appreciated and knew their acts were likely to result in
DeLaRosa’s death.” (Italics added.)
People v. Meza further concluded that the evidence was
sufficient to support the true finding on the special circumstance
allegation, reiterating: “When DeLaRosa finally arrived at the
house where the cocaine was to be transferred, appellants were
armed and clearly [a]waiting his arrival. DeLaRosa was killed
within minutes of his arrival in a cross-fire of bullets. Contrary
to appellants’ argument, there was sufficient evidence, together
with the reasonable inferences therefrom, for the jury properly to
conclude appellants knew DeLaRosa possessed a substantial
amount of cocaine and that they intended to kill him in order to
take it from him by force against his will and were, therefore,
guilty of attempted robbery and murder in the course of the
attempted robbery.” The court relied on the same reasoning in
holding that the trial court did not err by denying codefendants’
section 1118.1 motion.
2. The section 1170.95 petition
In October 2019, after passage of Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437), Yuriar filed a petition
for vacation of his murder conviction and resentencing. Using a
preprinted form, he checked boxes stating that he had been
convicted of murder pursuant to the felony-murder rule or the
natural and probable consequences doctrine; he was not the
actual killer; he did not, with the intent to kill, aid and abet the
actual killer; he was not aware the victim was a peace officer

5
acting in the performance of his duties; and he could not now be
convicted of first degree felony murder in light of changes to
section 189 effectuated by Senate Bill 1437. He also checked a
box requesting that counsel be appointed for him.
The People filed an opposition to the petition, arguing that
Senate Bill 1437 was unconstitutional and in any event, Yuriar
was ineligible because, as stated in this court’s prior opinion, the
jury’s true finding on the special circumstance allegation
indicated he was either a direct aider and abettor who acted with
the intent to kill or was a major participant who acted with
reckless indifference.
On February 28, 2020, the trial court summarily denied the
petition. Yuriar was not present, and was not represented by
counsel. The court found Yuriar ineligible for relief because the
“facts as set forth in the Court of Appeal decision in this matter
show that the Defendant was either a direct aider and abettor to
the robbery or to the murder itself.” After briefly summarizing
the facts of the case as described in the prior opinion, it
continued: “The Court of Appeal found that Petitioner was an
aider and abettor to both the killing and the robbery. The Court
of Appeal found that Petitioner acted with reckless indifference to
life. [¶] Based on the above facts as set forth in the decision by
the Court of Appeal, the Petitioner has failed to show a prima
facie case for relief.”
Yuriar timely appealed the trial court’s order.
DISCUSSION
Yuriar contends that the trial court erred by summarily
denying his petition without appointing counsel for him, and by
improperly concluding the jury’s special circumstance finding
precluded section 1170.95 relief.

6
 1. Applicable legal principles
a. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Gentile (2020) 10 Cal.5th 830, 842–843; People v. Lewis
(2021) 11 Cal.5th 952, 957, 971 (Lewis)).
Prior to Senate Bill 1437’s enactment, under the felony-
murder rule “a defendant who intended to commit a specified
felony could be convicted of murder for a killing during the felony,
or attempted felony, without further examination of his or her
mental state.” (People v. Lamoureux (2019) 42 Cal.App.5th 241,
247–248; People v. Powell (2018) 5 Cal.5th 921, 942.) Similarly,
under the natural and probable consequences doctrine, a
defendant was “liable for murder if he or she aided and abetted
the commission of a criminal act (a target offense), and a
principal in the target offense committed murder (a nontarget
offense) that, even if unintended, was a natural and probable
consequence of the target offense.” (Lamoureux, at p. 248.)
Senate Bill 1437 amended the felony-murder rule by
adding section 189, subdivision (e), which provides that a
participant in the perpetration of qualifying felonies is liable for
felony murder only if the person: (1) was the actual killer;
(2) was not the actual killer but, with the intent to kill, acted as a
direct aider and abettor; or (3) was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in section 190.2, subdivision (d). (People v.
Gentile, supra, 10 Cal.5th at p. 842.) Subdivision (e) does not

7
apply when the defendant knew or should have known the victim
was a peace officer engaged in the performance of his or her
duties.4 (§ 189, subd. (f).) Senate Bill 1437 also amended the
natural and probable consequences doctrine by adding
subdivision (a)(3) to section 188, which states that “[m]alice shall
not be imputed to a person based solely on his or her
participation in a crime.”
b. Section 1170.95’s petitioning procedure
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a now-
invalid felony-murder or natural and probable consequences
theory may petition for vacation of their convictions and
resentencing. A defendant is eligible for relief under section
1170.95 if he or she meets three conditions: he or she (1) must
have been charged with murder by means of a charging document
that allowed the prosecution to proceed under a felony murder or
natural and probable consequences theory; (2) must have been
“convicted of first or second degree murder following a trial or
accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder”; and
(3) could no longer be convicted of first or second degree murder
due to changes to sections 188 and 189 effectuated by Senate Bill
1437. (§ 1170.95, subd. (a).)
To obtain section 1170.95 relief, the defendant must file a
petition with the court that sentenced him or her, averring the
foregoing, and must serve it upon the district attorney or the

4
Yuriar averred in his petition that he did not know the
victim was a police officer. The People did not contend otherwise,
presumably because DeLaRosa was operating in an undercover
capacity.

8
prosecuting agency and the public defender or the attorney who
represented petitioner at trial. The petition must contain (1) a
“declaration by the petitioner that he or she is eligible for relief
under [section 1170.95], based on all the requirements of
subdivision (a)”; (2) the superior court case number and year of
conviction; and (3) an indication of whether the petitioner
requests counsel. If any of this information is missing and cannot
be readily ascertained by the court, it may deny the petition
without prejudice. (§ 1170.95, subd. (b).)
Recently—and after the trial court’s ruling in the instant
matter—our Supreme Court resolved a split of authority in the
appellate courts and clarified the proper procedure for the
evaluation of a section 1170.95 petition. The defendant is
entitled to the appointment of counsel, if requested, upon the
filing of a facially sufficient petition, that is, one that makes the
necessary averments, without regard to his or her eligibility for
relief. (Lewis, supra, 11 Cal.5th at p. 957.) Section 1170.95
contemplates one, rather than two, prima facie reviews, and does
not allow for summary denial based on a petitioner’s ineligibility
prior to the appointment of counsel. (Lewis, at pp. 957, 961–963.)
The logical sequence, Lewis reasoned, is as follows: “a complying
petition is filed; the court appoints counsel, if requested; the issue
is briefed; and then the court makes one (not two) prima facie
determination.” (Id. at p. 966.)
After the appointment of counsel and the opportunity for
briefing, when determining whether the defendant has made a
prima facie showing of entitlement to relief, the court may
consider the record of conviction. (Lewis, supra, 11 Cal.5th at
pp. 957, 960, 970–971.) “Appellate opinions . . . are generally
considered to be part of the record of conviction.” (Id. at p. 972.)

9
“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.” (Id. at p. 971.)
“While the trial court may look at the record of conviction
after the appointment of counsel to determine whether a
petitioner has made a prima facie case for section 1170.95 relief,
the prima facie inquiry under subdivision (c) is limited. Like the
analogous prima facie inquiry in habeas corpus proceedings,
‘ “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.” ’ [Citations.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘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.” ’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 971.) In
reviewing any part of the record “at this preliminary juncture,” a
trial court may not engage in “ ‘factfinding involving the weighing
of evidence or the exercise of discretion.’ ” (Id. at p. 972.)
If the trial court determines that the petitioner has made
such a prima facie showing, it must issue an order to show cause
and “then must hold a hearing ‘to determine whether to vacate

10
the murder conviction and to recall the sentence and resentence
the petitioner on any remaining counts in the same manner as if
the petitioner had not . . . previously been sentenced, provided
that the new sentence, if any, is not greater than the initial
sentence.’ (§ 1170.95, subd. (d)(1).)” (Lewis, supra, 11 Cal.5th at
p. 960.) In making that determination, the prosecutor and the
petitioner may rely on the record of conviction or offer new or
additional evidence. (§ 1170.95, subd. (d)(3); Lewis, at p. 960.) At
the subdivision (d) hearing, the prosecution has the burden to
prove the petitioner’s ineligibility beyond a reasonable doubt.
(§ 1170.95, subd. (d)(3).)
2. Contentions
Yuriar contends his petition satisfied the statutory criteria
to make a prima facie showing of eligibility for relief under
section 1170.95. Therefore, he asserts, the superior court erred
by ruling he was ineligible as a matter of law “apparently based
on the court’s assumption that the robbery-murder special
circumstance true finding showed as a matter of law that
appellant is ineligible for relief.” Because the special
circumstance finding predated 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), he asserts that it
does not show his ineligibility as a matter of law. Instead, he
urges that the court should have appointed counsel, permitted
briefing, and conducted an evidentiary hearing at which the
parties could offer new evidence.
In a supplemental brief,5 the People acknowledge that
under Lewis, the trial court erred by summarily denying the

5
We invited the parties to submit supplemental briefs after
issuance of Lewis, and they have done so.

11
petition without appointing counsel, but contend that the error
was harmless. They point out that the trial court did not deny
the petition based on the existence of the jury’s special
circumstance finding, but instead based its decision on this
court’s prior opinion. They contend that the trial court’s ruling
was correct for two reasons. First, the trial court’s stated basis
for denying the petition was correct because this court’s prior
opinion found, beyond a reasonable doubt, that Yuriar was a
direct aider and abettor who acted with the intent to kill, and this
holding is the law of the case. Second, the jury’s special
circumstance finding rendered Yuriar ineligible for section
1170.95 relief as a matter of law.
The People are correct that the superior court did not
expressly rely on the special circumstance as the basis for its
denial. However, we “ ‘review the ruling, not the court’s
reasoning, and, if the ruling was correct on any ground, we
affirm.’ ” (People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.)
As explained post, we conclude the true finding on the special
circumstance allegation precludes relief. Therefore we do not
reach the question of whether the court properly relied on the
conclusions cited in this court’s prior opinion.6

6 We also do not reach Yuriar’s contention that a trial court
cannot, at either the prima facie or the evidentiary hearing stage,
rely on the fact substantial evidence in the record supports the
murder conviction on a theory that remains valid after Senate
Bill 1437. That issue, insofar as it pertains to the standard
applicable at a section 1170.95, subdivision (d)(3) hearing, is
currently before our Supreme Court. (People v. Duke (2020) 55
Cal.App.5th 113, 123, review granted Jan. 13, 2021, S265309.)

12
 3. The failure to appoint counsel is subject to harmless
error analysis under the Watson standard
Lewis compels the conclusion that the trial court erred by
summarily denying the petition without appointing counsel for
Yuriar and considering briefing by both parties. Contrary to
Yuriar’s arguments in his opening brief—filed before Lewis
issued—this misstep was not structural error requiring per se
reversal. Lewis considered and rejected the argument that
evaluation of a section 1170.95 petition constitutes a “critical
stage” of a criminal prosecution. (Lewis, supra, 11 Cal.5th at
pp. 972–973.) “There is no unconditional state or federal
constitutional right to counsel to pursue collateral relief from a
judgment of conviction.” (Id. at p. 972.) Instead, at the section
1170.95, subdivision (c) stage, the right to counsel is purely
statutory. (Lewis, at p. 973.) Therefore, “deprivation of [the]
right to counsel under subdivision (c) of section 1170.95 [is] state
law error only, tested for prejudice under People v. Watson (1956)
46 Cal.2d 818.” (Id. at pp. 957–958.) To establish reversible error
under the Watson standard, a defendant must “ ‘demonstrate
there is a reasonable probability that in the absence of the error
he . . . would have obtained a more favorable result.’ ” (Id. at
p. 974.)
We turn to that question.
4. Because Yuriar is ineligible for relief as a matter of law,
he cannot establish prejudicial error
To be eligible for resentencing, Yuriar was required to show
that he “could not be convicted of first or second degree murder
because of changes to Section 188 or 189” made by Senate Bill
1437. (§ 1170.95, subd. (a)(3).) Under section 189, as amended, a
defendant can be convicted of felony murder if he was the actual

13
killer; acted as a direct aider and abettor with the intent to kill;
or was a major participant in the underlying felony and acted
with reckless indifference to human life. (§ 189, subd. (e).)
As noted, the jury found true the special circumstance
allegation that the murder was committed during an attempted
robbery. (§ 190.2, subd. (a)(17)(A)). The jury was instructed as
follows: “ ‘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 or abettor, you cannot
find the special circumstance to be true, as to that defendant
unless you are satisfied beyond a reasonable doubt that such
defendant with the intent to kill aided, abetted, requested, 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, requested, or assisted in the
attempted commission of the crime of robbery which resulted in
the death of a human being, namely Tommy DeLaRosa.’ ”
The jury’s true finding on the special circumstance
therefore demonstrates Yuriar is ineligible for section 1170.95
relief as a matter of law. As recently explained by People v.
Simmons: “Section 189, as amended by Senate Bill No. 1437, . . .
now permits a felony-murder conviction only when specified facts
relating to the defendant’s individual culpability have been
proved. Among such circumstances, a felony-murder conviction is
permissible if the defendant 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. (§ 189,
subd. (e).) [In Simmons], the jury found true a felony-murder
special circumstance pursuant to section 190.2, subdivision
(a)(17)(A), which imposes a sentence of death or life without the

14
possibility of parole for a murder committed during the
commission, or attempted commission, of a robbery. [Citation.]
To make such a finding, the jury was required to find that
petitioner acted ‘with reckless indifference to human life and as a
major participant’ in aiding or abetting the commission of the
underlying felony. [Citations.] In other words, ‘[t]he language of
the special circumstance tracks the language of Senate Bill [No.]
1437 and the new felony-murder statutes.’ [Citation.] Thus, by
finding the special circumstance true, the jury made the requisite
findings necessary to sustain a felony-murder conviction under
the amended law. Petitioner is therefore ineligible for
resentencing under section 1170.95 as a matter of law.” (People
v. Simmons (2021) 65 Cal.App.5th 739, 746–747, review granted
Sept. 1, 2021, S270048; see People v. Galvan (2020) 52
Cal.App.5th 1134, 1141, review granted Oct. 14, 2020, S264284
[“By finding a special circumstance allegation true, the jury
makes precisely the same finding it must make in order to
convict a defendant of felony murder under the new law. Because
a defendant with a felony-murder special circumstance could still
be convicted of murder, he is ineligible as a matter of law to have
his murder conviction vacated.”]; People v. Jones (2020) 56
Cal.App.5th 474, 482, review granted Jan. 27, 2021, S265854;
People v. Gomez (2020) 52 Cal.App.5th 1, 15, review granted Oct.
14, 2020, S264033; People v. Murillo (2020) 54 Cal.App.5th 160,
167–168, review granted Nov. 18, 2020, S264978; People v.
Allison (2020) 55 Cal.App.5th 449, 457 (Allison); People v. Nunez
(2020) 57 Cal.App.5th 78, 91, review granted Jan. 13, 2021,
S265918.)
Yuriar argues that the jury’s special circumstance finding
is not preclusive in his case, because it predated our Supreme

15
Court’s decisions in Banks and Clark. “Banks and Clark ‘clarified
“what it means for an aiding and abetting defendant to be a
‘major participant’ in a crime who acted with a ‘reckless
indifference to human life.’ ” ’ [Citation.] Banks identified
certain factors to consider in determining whether a defendant
was a major participant; Clark identified factors to guide the
determination of whether the defendant acted with reckless
indifference to human life.” (People v. Gomez, supra, 52
Cal.App.5th at p. 13, fn. 5, rev.gr.)
The appellate courts are split on the question of whether a
pre-Banks and Clark special circumstance finding makes a
petitioner ineligible for section 1170.95 relief as a matter of law,
and the issue is on review before our Supreme Court. (See People
v. Strong (S266606, review granted March 10, 2021; People v.
Jones, supra, 56 Cal.App.5th at pp. 478–479, rev.gr. [collecting
cases].)
Some courts have concluded that such a special
circumstance does not, by itself, render a petitioner ineligible for
relief. (See People v. Torres (2020) 46 Cal.App.5th 1168, 1178,
review granted June 24, 2020, S262011.) Torres reasoned that
Banks and Clark “construed section 190.2, subdivision (d) in a
significantly different, and narrower manner than courts had
previously construed the statute.” (Id. at p. 1179.) “Accordingly,
in determining if [petitioner] could be convicted today of first
degree murder, we cannot simply defer to the jury’s pre-Banks
and Clark factual findings that [petitioner] was a major
participant who acted with reckless indifference to human life as
those terms were interpreted at the time.” (Ibid.) “No court has
affirmed the special circumstances findings at issue post-Banks
and Clark. There is therefore a possibility that [the petitioner]

16
was punished for conduct that is not prohibited by section 190.2
as currently understood, in violation of [petitioner’s]
constitutional right to due process.” (Id. at p. 1180, fn. omitted;
see People v. Gonzalez (2021) 65 Cal.App.5th 420, 429–431,
review granted Aug. 18 2021, S269792; People v. Harris (2021) 60
Cal.App.5th 939, 957, review granted April 28, 2021, S267802
[pre-Banks/Clark special circumstance finding, without more,
does not preclude relief under section 1170.95]; People v. Smith
(2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020,
S262835; People v. York (2020) 54 Cal.App.5th 250, 258, review
granted Nov. 18, 2020, S264954 [pre-Banks/Clark special
circumstance finding “cannot preclude eligibility for relief
under . . . section 1170.95 as a matter of law, because the factual
issues that the jury was asked to resolve” in such a case “are not
the same factual issues our Supreme Court has since identified
as controlling.”]; cf. People v. Secrease (2021) 63 Cal.App.5th 231,
247, 254–256, 259–261, review granted June 30, 2021, S268862
[adopting a “middle ground” in which pre-Banks/Clark special
circumstance does not bar section 1170.95 relief as a matter of
law absent a judicial determination that evidence was sufficient
under those cases, but requiring courts hearing the petition and
any ensuing appeal to determine sufficiency of the evidence
under Banks and Clark]; People v. Pineda (2021) 66 Cal.App.5th
792, 795, 801, review granted Sept. 29, 2021, S270513 [following
Secrease]; People v. Arias (2021) 66 Cal.App.5th 987, 991, 1003–
1004, review granted Sept. 29, 2021, S270555 [same].)
As noted, other courts hold that a pre-Banks and Clark
special circumstance finding bars section 1170.95 relief as a
matter of law. They reason that section 1170.95 was not meant
to be an avenue for an attack on the sufficiency of the evidence to

17
support a special circumstance finding (see, e.g., Allison, supra,
55 Cal.App.5th at pp. 453, 461), and a defendant seeking to
challenge the sufficiency of the evidence to prove a pre-Banks and
Clark major participant or reckless indifference finding must do
so via a petition for writ of habeas corpus. (People v. Gomez,
supra, 52 Cal.App.5th at pp. 16–17, rev.gr.; People v. Galvan,
supra, 52 Cal.App.5th at p. 1142, rev.gr.; People v. Jones, supra,
56 Cal.App.5th at p. 483, rev.gr.; People v. Nunez, supra, 57
Cal.App.5th at p. 96, rev.gr.)
In support of this view, some cases point out that Banks
and Clark did not state a new rule of law, but merely clarified the
already-existing meaning of “major participant” and “reckless
indifference,” terms that do not have specialized definitions and
are interpreted as used in common parlance. (Allison, supra, 55
Cal.App.5th at pp. 458–459; People v. Jones, supra, 56
Cal.App.5th at pp. 482, 484, rev.gr.; People v. Nunez, supra, 57
Cal.App.5th at p. 92, rev.gr.) While optional language was added
to the pattern jury instructions after Banks and Clark, “no
mandatory language or material changes were made to the
CALCRIM special circumstances instructions,” and there is no
requirement that juries be instructed on the Banks/Clark
clarifications. (Nunez, at pp. 92–93; Jones, at p. 484; Allison, at
pp. 458–459.) Thus, the argument that a pre-Banks/Clark
special circumstance finding must be presumed invalid
exaggerates the impact of Banks and Clark. (See Allison, at
p. 458; Jones, at p. 484.) There is “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, or resolved
different factual issues, answered different questions, or applied
different standards.” (Nunez, at p. 94).

18
 As People v. Simmons recently observed, “Banks and Clark
did not state a new rule of law. Rather, they relied on the United
States Supreme Court’s decisions in Enmund v. Florida (1982)
458 U.S. 782 and Tison v. Arizona (1987) 481 U.S. 137 to clarify
principles that had long been in existence at the time petitioner
was convicted.” (People v. Simmons, supra, 65 Cal.App.5th at
p. 749.) “To the extent Banks and Clark illuminated factors a
fact finder might consider in determining whether a defendant
was a major contributor who acted with reckless indifference to
human life, they drew those factors from Enmund and Tison.
[Citations.] These principles existed when petitioner was
convicted and, absent a determination on direct appeal or in
habeas that the evidence was insufficient to support the jury’s
finding, there is no basis to conclude petitioner’s jury applied
different standards than those described in Banks and Clark.”
(Ibid.)
Additionally, this line of authority reasons that the
opposite approach is inconsistent with the plain language of
section 1170.95, because a defendant claiming ineligibility based
on Banks and Clark does not meet the statutory requirement
that he or she cannot be convicted because of changes to sections
188 or 189 made by Senate Bill 1437. (People v. Jones, supra, 56
Cal.App.5th at p. 484, rev.gr.) “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. (§ 1170.95, subd. (a)(3).) [¶] . . . Although [petitioner]
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

19
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.”
(People v. Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr.;
People v. Murillo, supra, 54 Cal.App.5th at p. 168, rev.gr.;
Allison, supra, 55 Cal.App.5th at p. 460; People v. Nunez, supra,
57 Cal.App.5th at pp. 94–95, rev.gr.)
Further, in concluding that the proper vehicle to challenge
a pre-Banks and Clark special circumstance finding is a petition
for writ of habeas corpus, courts point to the different burdens
involved in a habeas petition and a section 1170.95 petition. A
defendant challenging a pre-Banks/Clark special circumstance
finding on direct appeal or by means of a writ of habeas corpus
must show that the record contains insufficient evidence to prove
he or she acted as a major participant or with reckless
indifference. (People v. Jones, supra, 56 Cal.App.5th at pp. 482–
483, 485, rev.gr.; People v. Galvan, supra, 52 Cal.App.5th at
pp. 1142–1143, rev.gr.) “By contrast, a petitioner who
demonstrates a prima facie case for relief under section 1170.95
has shifted the burden to the People to prove beyond a reasonable
doubt that they are ineligible for resentencing (that is, they still
could be convicted of murder despite the change to the felony-
murder rule in § 189). [Citation.] . . . . [T]he Torres/Smith/York
line of cases would read into section 1170.95 a new procedure
allowing petitioners to ignore a special circumstance finding—no
matter how well supported in the record—as well as the
recognized method of challenging it. Such petitioners would be

20
allowed to relitigate a prior jury finding at an evidentiary hearing
where the prosecution bears the burden of proving the truth of
the finding, beyond a reasonable doubt, a second time.” (Jones, at
p. 485.) Allowing petitioners to challenge a special circumstance
finding via a section 1170.95 petition would give them an
advantage over similarly situated defendants, based on the date
of their convictions. (Galvan, at pp. 1142–1143; see People v.
Nunez, supra, 57 Cal.App.5th at pp. 96–97, rev.gr.)
Such a procedure is inconsistent with the Legislature’s
intent. “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.
But there is no indication in the statute’s text or history of any
legislative intent to permit defendants to challenge their murder
convictions by attacking prior findings of fact.” (People v. Nunez,
supra, 57 Cal.App.5th at p. 95, rev.gr.; Allison, supra,
55 Cal.App.5th at p. 461.)
While we acknowledge that both of the foregoing lines of
authority are not without force, we find more persuasive those
cases holding that a jury’s section 190.2, subdivision (a)(17)
special circumstance finding precludes relief as a matter of law.
Accordingly, we conclude that the record of conviction reflects
Yuriar’s ineligibility as a matter of law, without the need for
factfinding or credibility determinations, and the petition was
properly denied. (See Lewis, supra, 11 Cal.5th at p. 971.)7

7
The People assert that, even if a jury’s pre-Banks and Clark
true finding on a special circumstance allegation is not
automatically preclusive, we may conduct our own evaluation of
the evidence to determine whether it supports such a finding in

21
Because counsel’s assistance could not have changed this fact, the
failure to appoint counsel was harmless.
Yuriar makes several arguments in support of his
contention that the jury’s special circumstance finding does not
preclude section 1170.95 relief. He urges that the line of cases
finding a special circumstance precludes relief are “based on the
doctrine of collateral estoppel.” Under collateral estoppel
principles, he contends, a pre-Banks and Clark special
circumstance finding cannot preclude relief because the issues at
trial and in the section 1170.95 proceeding are not identical,
given that Banks and Clark clarified the major
participant/reckless indifference standard. (See Lucido v.
Superior Court (1990) 51 Cal.3d 335, 341 [collateral estoppel
applies only if the issue sought to be precluded is identical to that
decided in a former proceeding]; Bridgeford v. Pacific Health
Corp. (2012) 202 Cal.App.4th 1034, 1042.) And, he argues that if

light of Banks and Clark. And, they argue, the evidence here
satisfied the Banks/Clark standard. The appellate courts have
adopted divergent positions on this question. (Compare People v.
Murillo, supra, 54 Cal.App.5th at p. 163, rev.gr. [denial proper
where record of conviction showed as a matter of law that the
special circumstance finding was valid even under Banks and
Clark]; People v. Arias, supra, 66 Cal.App.5th at pp. 1004–1005,
rev.gr. [appellate court must conduct an individualized review of
record to determine whether special circumstance finding
satisfies Banks and Clark], with People v. Smith, supra, 49
Cal.App.5th at pp. 95–96, rev.gr. [appellate court may not
conduct its own assessment of the trial evidence to determine
whether defendant was a major participant who acted with
reckless indifference to human life].) Given our conclusion that
the special circumstance finding renders Yuriar ineligible as a
matter of law, we do not address this issue.

22
collateral estoppel barred relitigation of a pre-Banks/Clark
finding, then habeas petitions challenging the sufficiency of the
evidence to prove a special circumstance finding would be barred
as well; yet such is not the case. (See In re Scoggins (2020) 9
Cal.5th 667, 673 [habeas petition not procedurally barred;
“[w]here a decision clarifies the kind of conduct proscribed by a
statute, a defendant whose conviction became final before that
decision ‘is entitled to post-conviction relief upon a showing that
his [or her] conduct was not prohibited by the statute’ as
construed in the decision”].)
But, contrary to Yuriar’s assertion, the decisions holding a
special circumstance finding bars section 1170.95 relief do not
turn on application of the collateral estoppel doctrine. Instead, as
we have explained, such decisions variously hold that section
1170.95 was not meant to be an avenue for a collateral attack on
the sufficiency of the evidence to support the special circumstance
finding (Allison, supra, 55 Cal.App.5th at p. 461); that a showing
of ineligibility must be based on changes to sections 188 and 189,
a requirement that is unmet based only on a Banks/Clark
challenge (People v. Murillo, supra, 54 Cal.App.5th at p. 168,
rev.gr.); and allowing a Banks/Clark challenge to be considered
on a section 1170.95 petition would give petitioners an advantage
over similarly situated defendants based only on the date of their
convictions (People v. Galvan, supra, 52 Cal.App.5th at pp. 1142–
1143, rev.gr.). This reasoning that Banks and Clark did not state
a new rule of law is aimed, not at showing a collateral estoppel
bar to section 1170.95 relief, but at demonstrating a pre-
Banks/Clark special circumstance should not be presumed
invalid.

23
 We are also unpersuaded by Yuriar’s contention that, at
trial—conducted pre-Banks and Clark—he did not have the same
incentive to minimize his involvement and it was less likely that
clarifying instructions would have been requested or given. Since
the jury was considering his intent and involvement in the
crimes, we are hard pressed to imagine a scenario in which, as a
practical matter, he would have declined to present evidence or
failed to request modifications to the instructions if such would
have actually assisted him. (See Allison, supra, 55 Cal.App.5th
at p. 459 [petitioner would have had “same incentive at his
original trial to attempt to minimize his involvement in the
robbery and his culpability for the killings as he would have had
if his trial had taken place after Banks and Clark.”].)
Yuriar also argues that under section 1170.95, neither
party is limited to the existing record, but may present new or
different evidence. But the opportunity to present such
additional evidence only comes into play at the section 1170.95,
subdivision (d)(3) hearing—which only occurs after the prima
facie determination. Indeed, were it otherwise, challenges to the
jury’s verdicts would appear limitless and no jury finding would
ever be preclusive. Under Yuriar’s interpretation, it would
appear that a defendant could present “new evidence” suggesting
that he was not the actual killer, he was misidentified, witnesses
were not credible, or the like. (See Allison, supra, 55 Cal.App.5th
at p. 461.) It is not “reasonable to interpret section 1170.95 as
allowing for such challenges, namely, challenges based on attacks
on prior factual findings. Nothing in the language of section
1170.95 suggests it was intended to provide redress for allegedly
erroneous prior factfinding. In particular, subdivision (a)(3) of
section 1170.95 says nothing about erroneous prior findings or

24
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. The purpose of
section 1170.95 is to give defendants the benefit of amended
sections 188 and 189 with respect to issues not previously
determined, not to provide a do-over on factual disputes that
have already been resolved.” (Allison, at p. 461.)
In sum, the jury’s true finding on the special circumstance
allegation demonstrates, as a matter of law, that Yuriar’s murder
conviction remains valid after the amendments to the law
effectuated by Senate Bill 1437. Because his petition was
meritless as a matter of law, appointed counsel could have done
nothing to obtain a more favorable result for him. Accordingly,
the trial court’s failure to appoint counsel was harmless error,
and its denial of the petition was proper.

25
 DISPOSITION
The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

I concur:

EGERTON, J.

26
LAVIN, J., Dissenting:

I agree with Jose Yuriar that the jury’s finding on the
attempted robbery special-circumstance allegation does not
necessarily preclude relief under Penal Code1 section 1170.95
considering the Supreme Court’s subsequent clarification in
People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016)
63 Cal.4th 522 of the requirements for finding a felony-murder
special-circumstance allegation true. “The Courts of Appeal have
subjected the issue at hand to vigorous debate and devoted
countless pages of discussion to the subject. The issue is currently
under review by the Supreme Court as well, so we will soon have
clarity one way or the other. (People v. Strong (Dec. 18, 2020,
C091162) [nonpub. opn.], review granted Mar. 10, 2021,
S266606.)” (People v. Arias (2021) 66 Cal.App.5th 987, 1003–
1004, review granted Sept. 29, 2021, S270555.) Accordingly, I
need not add to the conversation with further argument or
analysis. Suffice it to say I am persuaded by the logic of the
courts that have concluded pre-Banks and Clark felony-murder
special-circumstance findings do not categorically preclude
defendants from obtaining resentencing relief under section
1170.95.
Further, I do not agree with the Attorney General that the
trial court’s error in summarily denying the petition was
harmless under the principles set forth in People v. Watson (1956)
46 Cal.2d 818. The Supreme Court recently clarified in People v.
Lewis (2021) 11 Cal.5th 952 that a trial court’s authority at this
stage of review is limited, in that it may not engage in factfinding

1
Undesignated statutory references are to the Penal Code.

1
involving the weighing of evidence. (Id. at p. 972.) I decline the
Attorney General’s invitation to engage in that very exercise.
In sum, I would reverse the order and remand for further
proceedings consistent with section 1170.95, subdivisions (c) and
(d). I therefore respectfully dissent.

LAVIN, J.

2