People v. Mitchell CA5

Filed 10/20/21 P. v. Mitchell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F081153
Plaintiff and Respondent,
(Super. Ct. No. SC052002A)
v.

RICKY MARSDEN MITCHELL, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Eric L.
Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Hill, P. J., Poochigian, J. and Detjen, J.
 INTRODUCTION
In 1993, petitioner Ricky Marsden Mitchell entered a plea of no contest to the
murder of Verlin Mitchell1 (Pen. Code,2 § 187, subd. (a)), and admitted the special
circumstance of murder during the commission or attempted commission of a burglary
(§ 190.2, former subd. (a)(17)(VII)).3 For this offense, he was sentenced to a term of life
without the possibility of parole.
In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95.
The court summarily denied the petition without stating its reasons.
On appeal, petitioner asserts he established a prima facie claim for resentencing
relief, and the court therefore erred in denying the petition without issuing an order to
show cause and holding an evidentiary hearing. We conclude the court did not err in
summarily denying the petition without issuing an order to show cause or holding an
evidentiary hearing because the record establishes petitioner is ineligible for resentencing
as a matter of law. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
The facts underlying the offenses are not relevant to our determination, and we
therefore summarize them only briefly.4

1 Although petitioner and the decedent share the same last name, they do not appear
to be related. To avoid confusion, we refer to Verlin by his first name. No disrespect is
intended.
2 Undesignated statutory references are to the Penal Code.
3 Petitioner was originally charged with additional offenses, as described below.
4 We deny petitioner’s November 18, 2020 request for judicial notice of the record
in his prior appeal, People v. Mitchell, F020913. (See People v. Sanders (2003) 31
Cal.4th 318, 323, fn. 1 [declining to take judicial notice of documents that were not
before the trial court]; see also People v. Young (2005) 34 Cal.4th 1149, 1171, fn. 3
[judicial notice cannot be taken of any matter that is irrelevant].)
Our factual summary is derived from records contained in the record on appeal in
the instant case, specifically a summary of police reports contained in the probation

2.
 On October 5, 1992, Verlin was found lying face down, bound, and dead on his
bed from multiple gunshot wounds to the head and a broken neck caused by either a blow
to the head with an object or by being “stomped on.” The residence appeared to have
been ransacked and both his vehicles were missing. Petitioner, Mike G., Charles O., and
Larry F.5 were stopped that afternoon in New Mexico in one of Verlin’s vehicles and
arrested. Two firearms were found in the vehicle. Each of the individuals made
incriminating statements. Relevant here, petitioner told police that Mike planned the
burglary and murder, hit Verlin on the head and neck with an ax, and then shot Verlin.
Charles told police that petitioner and Mike were both armed, and Mike shot Verlin twice
after being urged to do so by petitioner. Mike told police that petitioner was armed,
directed the others to restrain Verlin, and told Mike he had to shoot Verlin or petitioner
would kill Mike’s parents. Larry’s statements were generally consistent with the others,
although he was unsure who killed the victim.
On November 13, 1992, the Kern County District Attorney charged petitioner with
premeditated murder (§ 187, subd. (a); count 1), with the special circumstance that the
murder was committed during the commission or attempted commission of a burglary
(§ 190.2, former subd. (a)(17)(VII)); two counts of residential burglary (former § 460.1;
counts 2 & 5); and two counts of vehicle theft (Veh. Code, § 10851, subd. (a); counts 3
& 4). As to count 1, the People also alleged petitioner personally used a firearm
(§ 12022.5, subd. (a)), and a principal was armed with a firearm (§ 12022, subd. (a)(1)).
On September 29, 1993, petitioner entered a plea of no contest to count 1, and
admitted the burglary special circumstance. The parties stipulated that petitioner was not
the shooter in the murder. The remaining counts and allegations were dismissed.

officer’s report. The parties previously stipulated that the police reports provided part of
the factual basis for the plea.
5 Mike, Charles, and Larry were minors at the time of the offense. Charles and
Larry are brothers.

3.
 On November 29, 1993, the court sentenced petitioner on count 1 to a term of life
without the possibility of parole.
On February 7, 2019, petitioner, in propria persona, filed a petition for
resentencing pursuant to section 1170.95. In the form petition, petitioner stated that a
complaint, information, or indictment was filed against him that allowed him to be
prosecuted under a theory of felony murder or murder under the natural and probable
consequences doctrine; he pled guilty or no contest to first or second degree murder; and
he could not now be convicted of first or second degree murder because of changes made
to sections 188 and 189, effective January 1, 2019. He further averred that he was not the
actual killer, did not act with an intent to kill, and was not a major participant in the
underlying felony or did not act with reckless indifference to human life in the course of
the crime.
The court appointed counsel to represent petitioner.
On March 5, 2019, the People filed an opposition to the petition and a motion to
dismiss the petition, both arguing section 1170.95 is unconstitutional.6 On March 29,
2019, the People filed an opposition on the merits to petitioner’s petition, arguing that the
facts, as testified to at the preliminary hearing, demonstrated petitioner was a major
participant in the crime and acted with reckless indifference to human life.
On May 15, 2019, petitioner’s counsel was relieved due to a conflict of interest
and new counsel was appointed.
On September 19, 2019, the People filed a motion to dismiss the petition arguing
that the facts, as testified to at the preliminary hearing, demonstrated petitioner was a
major participant in the crime and acted with reckless indifference to human life, and
additionally aided and abetted in the murder with the intent to kill. The People also

6 The motion was fully briefed and eventually denied by the court.

4.
argued petitioner’s admission of the burglary-murder special circumstance constituted an
admission that his conviction did not fall within the provisions of section 1170.95.
On April 14, 2020, petitioner filed a reply, arguing that the record did not rebut his
assertion that he is entitled to relief and the court could not resolve whether petitioner
was a major participant who acted with reckless indifference to human life without
resolving factual questions at an evidentiary hearing.
On April 17, 2020, the People filed a reply to petitioner’s reply, arguing once
again that the special circumstance admission rendered petitioner ineligible for relief.
On May 11, 2020, the court denied the petition in a minute order without
providing a statement of reasons.
This timely appeal followed.
DISCUSSION
I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.) “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 bill accomplished this task by adding three
separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842
(Gentile).) First, to amend the natural and probable consequences doctrine, the bill added
section 188, subdivision (a)(3), which requires a principal to act with malice aforethought
before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at
pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189,
subdivision (e):

“A participant in the perpetration or attempted perpetration of [qualifying
felonies] in which a death occurs is liable for murder only if one of the

5.
 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.”7 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill “added section 1170.95 to provide a procedure for those convicted of
felony murder or murder under the natural and probable consequences doctrine to seek
relief under the two ameliorative provisions above.”8 (Gentile, at p. 843.)
“Section 1170.95 lays out a process for a person convicted of felony murder or
murder under a natural and probable consequences theory to seek vacatur of his or her
conviction and resentencing.” (Gentile, supra, 10 Cal.5th at p. 853.) First, “an offender
must file a petition in the sentencing court averring that: ‘(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 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) The petitioner 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)(1)-(3); see also § 1170.95,
subd. (b)(1)(A).) Additionally, the petition shall state ‘[w]hether the petitioner requests
the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply
with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of

7 Additionally, section 189 was amended to allow for felony-murder liability where
the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672, review granted Feb. 24, 2021, S266336.)
8 The Legislature recently passed, and the Governor signed, a bill amending section
1170.95. (Sen. Bill No. 775 (2021-2022 Reg. Sess.).) The amendments are not yet
effective (Cal. Const., art. IV, § 8, subd. (c)(1)) and, in any event, would not alter our
analysis. We quote from the version of section 1170.95 presently in effect.

6.
another petition.’ (§ 1170.95, subd. (b)(2).)” (People v. Lewis (2021) 11 Cal.5th 952,
959-960 (Lewis).)
Where the petition complies with the requirements of section 1170.95, subdivision
(b)(1), counsel must be appointed, if requested. The prosecutor must file a response and
the petitioner may file a reply. The trial court must then review the petition to determine
if the petitioner has made a prima facie showing that he or she is entitled to relief.
(§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this
determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.)
However, the prima facie inquiry is limited and, at this stage of the proceedings, the court
“should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Id. at pp. 971-972.)
If the court determines the petitioner has met his or her prima facie burden, “the
trial court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder conviction and to resentence the petitioner on any remaining counts.
(§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95,
subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.’ (Ibid.)” (Gentile,
supra, 10 Cal.5th at p. 853.)
To demonstrate prejudice from the denial of a section 1170.95 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson
(1956) 46 Cal.2d 818, 836.)
II. The Petition was Properly Denied
Petitioner contends he set forth a prima facie claim for relief and the trial court
erred in denying his petition without issuing an order to show cause. We conclude the

7.
petition was properly denied at the prima facie stage because petitioner’s admission of
the special circumstance establishes petitioner is ineligible for resentencing as a matter of
law.
To be eligible for relief pursuant to section 1170.95, petitioner must not have been
the actual killer, must not have acted with the intent to kill, and must not have been a
major participant in the underlying felony who acted with reckless indifference to human
life. (§§ 189, subd. (e), 1170.95, subd. (a)(3); see Gentile, supra, 10 Cal.5th at p. 842.)
Here, petitioner admitted a burglary-murder special circumstance pursuant to section
190.2, subdivision (a)(17). In so doing, petitioner admitted he acted “with reckless
indifference to human life and as a major participant” in aiding or abetting the
commission of the underlying felony. (§ 190.2, subd. (d); People v. Gutierrez-Salazar
(2019) 38 Cal.App.5th 411, 419.) In other words, “[t]he language of the special
circumstance tracks the language of Senate Bill [No.] 1437 and the new felony-murder
statutes.” (Gutierrez-Salazar, at p. 419.) By admitting this special circumstance,
petitioner admitted the facts necessary to sustain a felony-murder conviction under the
amended law. Petitioner’s admission on the burglary-murder special circumstance
establishes that he is ineligible for resentencing as a matter of law.
Nonetheless, petitioner argues the special circumstance admission, standing alone,
is insufficient to render him ineligible for resentencing as a matter of law. In support, he
relies on People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63
Cal.4th 522 (Clark), both decided after his conviction was final. “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 (2020) 52 Cal.App.5th
1, 13, fn. 5, review granted Oct. 14, 2020, S264033 (Gomez).) Courts of Appeal are split

8.
on the question of whether a special circumstance finding entered prior to Banks and
Clark renders a petitioner ineligible for section 1170.95 resentencing relief as a matter of
law (see People v. Jones (2020) 56 Cal.App.5th 474, 478-479 [collecting cases], review
granted Jan. 27, 2021, S265854 (Jones)), and our Supreme Court has granted review to
decide the issue (People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review
granted Mar. 10, 2021, S266606).
Courts which have held that a pre-Banks and Clark felony-murder special-
circumstance finding bars section 1170.95 resentencing relief have reasoned that Banks
and Clark merely clarified the law as it always was. (Jones, supra, 56 Cal.App.5th at
pp. 482, 484, review granted; accord, People v. Nunez (2020) 57 Cal.App.5th 78, 92,
review granted Jan. 13, 2021, S265918; People v. Allison (2020) 55 Cal.App.5th 449,
458.) These courts further note that our Supreme Court does not require juries to be
instructed on the Banks and Clark clarifications. “Rather, while CALCRIM No. 703 now
includes optional language drawn from Banks and Clark regarding the factors a jury may
consider, ‘[t]he bench notes to the instruction state that Banks “stopped short of holding
that the court has a sua sponte duty to instruct on those factors,” and Clark “did not hold
that the court has a sua sponte duty to instruct on those factors.” ’ ” (Nunez, at pp. 92-93;
accord, Jones, at p. 484; Allison, at pp. 458-459.) Thus, these courts found “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.)
These courts have also held that an attack on a special circumstance finding in a
section 1170.95 proceeding effectively constitutes a collateral attack on the judgment.
(People v. Galvan (2020) 52 Cal.App.5th 1134, 1142, review granted Oct. 14, 2020,
S264284; Gomez, supra, 52 Cal.App.5th at p. 16, review granted.) According to these
courts, a petitioner who wishes to argue the special circumstance finding is invalid under
current law must first seek to invalidate that finding through a petition for writ of habeas

9.
corpus before seeking resentencing pursuant to section 1170.95. (Galvan, at p. 1142;
Gomez, at p. 17; Jones, supra, 56 Cal.App.5th at p. 485, review granted.) These courts
reason that a contrary interpretation “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 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.)
On the other hand, courts that have found a special circumstance finding
insufficient to render a petitioner ineligible for relief have 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.” (People v. Torres (2020) 46
Cal.App.5th 1168, 1179, review granted June 24, 2020, S262011, abrogated on another
ground by Lewis, supra, 11 Cal.5th at pp. 962-963; accord, People v. Harris (2021) 60
Cal.App.5th 939, 958, review granted Apr. 28, 2021, S267802.) Thus, these courts
surmised that a petitioner with a pre-Banks and Clark special circumstance finding may
have been convicted based on “conduct that is not prohibited by section 190.2 as
currently understood.” (Torres, at p. 1180; accord, Harris, at p. 958; People v. York
(2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954; People v.
Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835.) To the
extent the jury’s finding on a felony-murder special circumstance is legally insufficient
under Banks and Clark, it cannot refute a prima facie showing of entitlement to
resentencing relief. (People v. Secrease (2021) 63 Cal.App.5th 231, 256.) Accordingly,
in considering whether a petitioner is entitled to relief pursuant to section 1170.95, the
trial court must first determine whether “the evidence presented at trial was sufficient to
support the felony-murder special-circumstance finding under Banks and Clark.”
(Secrease, at p. 264.)

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 A panel of this court has recently resolved to follow the line of authority holding
that a special circumstance finding precludes relief as a matter of law. (People v.
Simmons (2021) 65 Cal.App.5th 739, 748-749, review granted Sept. 1, 2021, S270048.)
We agree. 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. (See In re Miller (2017) 14 Cal.App.5th 960, 978;
accord, People v. Allison, supra, 55 Cal.App.5th at p. 458; Gomez, supra, 52 Cal.App.5th
at p. 13, fn. 5, review granted.) Enmund prohibited felony-murder liability for a
defendant that “did not commit the homicide, was not present when the killing took
place, and did not participate in a plot or scheme to murder,” and explained that, to be
liable for felony murder, the aider and abettor must himself “kill, attempt to kill, or intend
that a killing take place or that lethal force will be employed.” (Enmund, at pp. 795,
797.) Tison held that, “major participation in the felony committed, combined with
reckless indifference to human life, is sufficient to satisfy the Enmund culpability
requirement.” (Tison, at pp. 151, 158.) As Banks noted, this language from Tison was
later codified by the California electorate in section 190.2, subdivision (d). (Banks,
supra, 61 Cal.4th at p. 800.) 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 Edmund and
Tison. (See Banks, at pp. 801, 803; see also Clark, supra, 63 Cal.4th at pp. 615, 618-
623.) These principles existed when petitioner was convicted. There is no basis to
conclude petitioner’s admission involved different standards than those described in
Banks and Clark.
Petitioner is ineligible for resentencing as a matter of law, and the court was not
required to issue an order to show cause or hold an evidentiary hearing. The petition was
properly denied. (Lewis, supra, 11 Cal.5th at pp. 970-971.)

11.
 DISPOSITION
The order is affirmed.

12.