People v. Berry CA2/6

Filed 11/22/21 P. v. Berry CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B307146
(Super. Ct. No. KA064692)
Plaintiff and Respondent, (Los Angeles County)

v.

SHAWN EARL BERRY,

Defendant and Appellant.

Appellant Shawn Earl Berry was convicted of first degree
murder in 2005. (Pen. Code, §§ 187, subd. (a), 189.)1 The jury
found true a special circumstance allegation that the murder had
been committed while appellant was engaged in the commission
of robbery. (§ 190.2, subds. (a)(17)(A), (d).) In 2019 appellant
filed a petition to vacate his murder conviction and obtain
resentencing pursuant to section 1170.95, which was added to the
Penal Code by Senate Bill No. 1437 (S.B. 1437). (Stats. 2018, ch.
1015, § 4.) The trial court summarily denied the petition because

1 All statutory references are to the Penal Code.
he had failed to make a prima facie showing that he could not be
convicted of murder under current law. Appellant appeals the
order denying the petition. We conclude that, as a matter of law,
the true finding on the special circumstance allegation rendered
him ineligible for relief under section 1170.95. Accordingly, we
affirm.
Procedural Background
In addition to being convicted of first degree murder,
appellant was convicted of conspiracy to commit robbery, (§§ 182,
subd. (a)(1), 211), two counts of second degree robbery (§§ 211,
212.5), two counts of assault with a deadly weapon upon a peace
officer (§ 245, subd. (c)), and one count of attempting to elude a
pursuing peace officer (Veh. Code, § 2800.2, subd. (a)). Appellant
was sentenced to prison for a determinate term of seven years,
eight months, plus an indeterminate term of life without the
possibility of parole. In a 2006 opinion, People v. Berry et al. (Oct.
19, 2006, B183555) [nonpub. opn.] (Berry), we struck a parole
revocation fine and affirmed the judgment as modified.
In support of his 2019 petition for resentencing, appellant
declared under penalty of perjury: (1) he was convicted of first
degree murder under the felony-murder rule or the natural and
probable consequences doctrine; (2) he could not currently be
convicted of murder because of changes made by S.B. 1437; (3) he
was not the actual killer; (4) he “did not, with the intent to kill,
aid, abet, counsel, command, induce, solicit, request, or assist the
actual killer in the commission of murder;” and (5) he “was not a
major participant in the felony or [he] did not act with reckless
indifference to human life.”
Without issuing an order to show cause, the trial court
denied appellant’s petition because he “is not entitled to relief as

2
a matter of law.” The court explained that the special
circumstance allegation “required the prosecution to show that
[appellant], as a non-shooter, had the intent to kill or acted with
reckless indifference to human life while acting as a major
participant in the robbery.”
Facts
The following summary of the facts is taken from our
unpublished 2006 opinion, Berry, supra, slip opin. at pp. 2-3:
Three persons were involved in the commission of the
robbery – appellant, James Durbin, and George Berry. Appellant
and Durbin entered a store and “looked around.” Appellant made
a purchase. They exited the store, but about 10 minutes later
George Berry and Durbin entered the store wearing masks.
Appellant “stood outside . . . as a lookout.” “‘[T]he victims [inside
the store] were thrown to the floor, kicked, handcuffed,
threatened with a knife and revolver, and [they] screamed.’”
“‘Brandishing a large bowie knife, Durbin kicked and handcuffed
the store owner, Shu-Ying Chen. George Berry pointed a revolver
at Chen’s husband, . . . ordered him to the front of the store and
pushed him down. [Husband] tried to remove his fanny pack and
pled, “I’ll give you money, I’ll give you money.”’” “‘George Berry
fired three shots, killing [husband].’”
A witness “saw a . . . man pace back and forth in front of
the store doorway during the robbery. The man peered into the
doorway twice . . . and fit [appellant’s] description . . . .”
S.B. 1437
“Under the felony-murder rule as it existed prior to Senate
Bill 1437, 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

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mental state. [Citation.] . . . [¶] Independent of the felony-
murder rule, the natural and probable consequences doctrine
rendered a defendant 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. [Citation.]” (People v.
Lamoureux (2019) 42 Cal.App.5th 241, 247-248.)
In S.B. 1437 the Legislature declared, “It is necessary 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).)
To achieve this goal, S.B. 1437 amended section 189, insofar as it
pertains to the felony-murder rule, to add subdivision (e), which
provides: “A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) [e.g., robbery] 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.” (Stats. 2018, ch. 1015, § 3.) S.B. 1437 also
amended section 188 to add subdivision (a)(3), which bars
conviction for murder under the natural and probable

4
consequences doctrine. (People v. Gentile (2020) 10 Cal.5th 830,
851.)
Section 1170.95, added by S.B. 1437, gives retroactive effect
to the changes in sections 188 and 189. It provides, “A person
convicted of felony murder or murder under a natural and
probable consequences theory may file a 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” certain conditions apply. (§ 1170.95, subd. (a).)
One of the conditions is that “[t]he petitioner could not be
convicted of first or second degree murder because of changes to
Section 188 or 189 made [by S.B. 1437] effective January 1,
2019.” (Id., subd. (a)(3).) The petition must include a declaration
by the petitioner showing that he is eligible for the relief afforded
by section 1170.95. (Id., subd. (b)(1)(A).)
“The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of [section 1170.95]. . . . 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), italics added.) “Within 60 days after the
order to show cause has issued, the court shall hold a hearing to
determine whether to vacate the murder conviction and to recall
the sentence and resentence the petitioner . . . .” (Id., subd.
(d)(1).)
The True Finding on the Special Circumstance
Allegation Rendered Appellant Ineligible for Relief
According to the special circumstance allegation, appellant
committed the murder while “engaged in the commission of the
crime of Robbery, within the meaning of Penal Code section

5
190.2(a)(17).” The jury was instructed, “‘[Y]ou cannot find the
special circumstance to be true . . . unless you are satisfied
beyond a reasonable doubt that [appellant] with the intent to kill
aided, abetted, counseled, commanded, induced, solicited,
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, counseled, commanded,
induced, solicited, requested or assisted in the commission of the
crime of robbery . . . .’” (Berry, supra, slip opn. at p. 12, fn. 7,
italics added.)
The language of this instruction is almost identical to the
felony-murder language of section 189, subdivision (e), as added
by S.B. 1437. Therefore, in view of the jury’s true finding on the
special circumstance allegation, it follows that appellant cannot
make a prima facie showing of the following criterion for relief
under section 1170.95: “The petitioner could not be convicted of
first or second degree murder because of changes to Section 188
or 189 made [by S.B. 1437].” (Id., subd. (a)(3).) Based on the
instruction, the jury must have found either that appellant acted
with the intent to kill or with reckless indifference to human life
and as a major participant. The same finding by a jury today
would render him liable for first degree murder under the felony-
murder rule as amended by S.B. 1437. (See § 189, subd. (e).)
Nevertheless, appellant argues that he is entitled to relief
under section 1170.95 because his conviction preceded 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). “Banks and Clark did not create a new rule of law, but
rather ‘clarified’ the already-existing meaning of the phrases
‘major participant’ and ‘reckless indifference to human life’ for

6
purposes of special circumstance allegations under section 190.2,
subdivision (d).” (People v. Jones (2020) 56 Cal.App.5th 474, 482,
review granted Jan. 27, 2021, S265854 (Jones).) In Banks the
Supreme Court concluded: “Reckless indifference to human life
‘requires the defendant be “subjectively aware that his or her
participation in the felony involved a grave risk of death.”’”
(Banks, supra, at p. 807.) In determining whether the defendant
was a major participant, the Supreme Court said that “the
ultimate question” is “whether the defendant’s participation ‘in
criminal activities known to carry a grave risk of death’ [citation]
was sufficiently significant to be considered ‘major’ [citations].”
(Id. at p. 803.) In Clark the Supreme Court set forth factors to be
considered in deciding whether the defendant was a major
participant and acted with reckless indifference to human life.
(Clark, supra, at pp. 611, 618-623.)
Appellant contends: “Because no court or jury has ever
found that appellant acted with reckless indifference to human
life as a major participant as those terms are understood today
[pursuant to Banks and Clark], his special circumstance true
finding does not show as a matter of law that he is ineligible for
relief under the new law. Hence, there is nothing in the record
that contradicts or rebuts as a matter of law the prima facie
showing of eligibility for resentencing in appellant’s petition. The
superior court’s summary denial of the petition without issuing
an order to show cause therefore contravened the terms of the
new law.” “All that matters for cases like this one is that a pre-
Banks and Clark felony murder special circumstance true finding
is not necessarily identical to the same finding after Banks and
Clark.”

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 “Our appellate courts have recently split over whether . . . a
pre-Banks/Clark special circumstance finding renders a
petitioner ineligible for relief under section 1170.95 as a matter of
law.[2] (Compare People v. Gomez (2020) 52 Cal.App.5th 1, . . .
[review granted Oct. 14, 2020, S264033] (Gomez), People v.
Galvan (2020) 52 Cal.App.5th 1134 . . . review granted Oct. 14,
2020, S264284 (Galvan), and People v. Allison (2020) 55
Cal.App.5th 449 . . . [review denied Dec. 23, 2020, S265450]
(Allison) [concluding the special circumstance finding renders a
petitioner ineligible for relief as a matter of law], with [cases
reaching the opposite conclusion:] People v. Torres (2020) 46
Cal.App.5th 1168, . . . review granted June 24, 2020,
S262011 . . . , People v. Smith (2020) 49 Cal.App.5th 85 . . . review
granted July 22, 2020, S262835 . . . , and People v. York (2020) 54
Cal.App.5th 250 . . . [review granted Nov. 18, 2020,
S264954] . . . .) As we will explain, we agree with the
Gomez/Galvan[/Allison] line of decisions and hold that a
petitioner with a pre-Banks/Clark finding is ineligible for relief
under section 1170.95 as a matter of law.” (Jones, supra, 56
Cal.App.5th at pp. 478-479.)

2 The issue is pending before our Supreme Court in
People v. Strong (Dec. 18, 2020, No. C091162) 2020 WL
7417057, review granted Mar. 10, 2021, S266606. According to
the Supreme Court’s website, “This case presents the following
issue: Does a felony-murder special circumstance finding (Pen.
Code, § 190.2, subd. (a)(17)) made before People v. Banks (2015)
61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 preclude
a defendant from making a prima facie showing of eligibility for
relief under Penal Code section 1170.95?” [as of Sept. 22, 2021],
archived at .

8
 “We analyze the issue by turning to the language of section
1170.95 itself: 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).)
[¶] In this case, that requirement is not met. Although
[appellant] 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
[appellant] 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, supra, 52 Cal.App.5th at p.
1142; accord, Gomez, supra, 52 Cal.App.5th at p. 17 [“the proper
procedure for [petitioner] to challenge her special circumstance
findings based on clarification of the relevant law in Banks and
Clark is to bring a petition for habeas corpus, in which she would
bear the burden of showing the findings must be vacated on the
ground there is insufficient evidence to support them”]; see also
In re Scoggins (2020) 9 Cal.5th 667, 676 [petitioner convicted of
special circumstance murder prior to Banks/Clark is entitled to
habeas corpus relief if his conduct did not fall within the scope of
the special circumstance statute as clarified by Banks/Clark].)
“Courts which have held that a pre-Banks and Clark
felony-murder special-circumstance finding bars section 1170.95

9
resentencing relief have [also] . . . note[d] that our Supreme
Court does not require juries to be instructed on the Banks and
Clark [factors]. . . . 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.’ ” (People v. Simmons (2021) 65
Cal.App.5th 739, 747-748, review granted Sept. 1, 2021,
S270048.)
Conclusion
A petitioner is entitled to relief only if “[t]he petitioner
could not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019 [by
S.B. 1437].” (§ 1170.95, subd. (a)(3).) The Banks/Clark
clarification of “reckless indifference to human life” and “major
participant” became effective long before January 1, 2019. Banks
was decided in 2015; Clark was decided in 2016. S.B. 1437’s
changes to sections 188 and 189 had no impact on the prior
Banks/Clark clarification. The language of section 1170.95,
subdivision (a)(3) is clear on its face – the petitioner is eligible for
relief only if he could not be convicted of murder because of
statutory changes “made effective January 1, 2019,” not because
of the Supreme Court’s clarification of the law prior to January 1,
2019.
As explained above, appellant has a remedy for a special
circumstance finding that is not supported by substantial
evidence under the Banks/Clark clarification. His remedy is to
file a petition for a writ of habeas corpus. We need not stretch

10
the language of section 1170.95 beyond its plain and ordinary
meaning to provide an additional remedy. 3
Accordingly, “[w]e . . . conclude [appellant’s] special
circumstance finding renders him ineligible for relief
under section 1170.95 as a matter of law and the trial court
properly denied his petition without an evidentiary hearing.”
(Jones, supra, 56 Cal.App.5th at p. 485.) “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, supra, 55 Cal.App.5th at p. 461.)
Disposition
The order denying appellant’s petition for relief under
section 1170.95 is affirmed.
NOT TO BE PUBLISHED.

YEGAN, J.
I concur:

GILBERT, P. J.

3 Because of the habeas corpus remedy, we reject
appellant’s claim that the summary denial of his petition violated
his federal and state constitutional rights to due process.

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TANGEMAN, J., Dissenting:
I respectfully dissent. Appellant’s petition presents the
question of whether he is categorically ineligible for Penal Code
section 1170.951 relief as a matter of law based on the jury’s
special circumstance finding predating the Banks and Clark2
decisions. Courts of Appeal have split on this question, which is
pending review in our Supreme Court.3 The majority here
follows the view that Banks and Clark are of no consequence in
the context of section 1170.95. I conclude that those cases that
reach the opposite conclusion are more persuasive.
Regardless of whether one concludes that our Supreme
Court modified the requirements for first degree murder
culpability based on a special circumstance finding, or merely
clarified existing law when it decided those cases, one result is
inescapable: the pathway to such culpability was narrowed.
“While it is true that the language of section 189, subdivision
(e)(3) tracks language that has always been a part of section
190.2, subdivision (d), Banks and Clark placed new limits on its
meaning.” (People v. Secrease (2021) 63 Cal.App.5th 231, 254,
review granted June 30, 2021, S268862.) Thus, by any definition,
or under any analysis, fewer people were, and are, culpable for
first degree murder after Banks and Clark were decided than

1 Unlabeled statutory references are to the Penal Code.

2 People v. Banks (2015) 61 Cal.4th 788 (Banks); People v.
Clark (2016) 63 Cal.4th 522 (Clark).

3People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.]
2020 WL 7417057, review granted Mar. 10, 2021, S266606.

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before. The question posed here is whether appellant is one of
them.
For those reasons expressed in People v. Arias (2021) 66
Cal.App.5th 987, review granted Sept. 29, 2021, S270555, and
People v. Secrease, supra, 63 Cal.App.5th at pp. 249-254, review
granted,4 I am persuaded that a felony murder special
circumstance finding predating the Banks and Clark decisions
does not automatically render 1170.95 petitioners ineligible for
relief.
Nor am I persuaded that petitioners like appellant should
be compelled to seek habeas relief as a precondition to seeking
1170.95 relief. Nowhere does the statute mention such a
requirement, nor is its availability conditioned on whether other
potential remedies are unavailable. It is not our function as
courts to impose this procedural requirement when the statute
itself does not do so.
Moreover, the suggested habeas remedy is largely illusory.
Habeas petitions can be denied outright if deemed “‘“successive”’”
(see, e.g., In re Reno (2012) 55 Cal.4th 428, 501) or “untimely” (id.
at p. 463), without any review of the merits. More significantly,

4See also People v. Wilson (2021) 69 Cal.App.5th 665;
People v. Pineda (2021) 66 Cal.App.5th 792, review granted Sept.
29, 2021, S270513; People v. Gonzalez (2021) 65 Cal.App.5th 420,
review granted Aug. 18, 2021, S269792; People v. Harris (2021)
60 Cal.App.5th 939, 956-958, review granted April 28, 2021,
S267802; People v. York (2020) 54 Cal.App.5th 250, 259-261,
review granted Nov. 18, 2020, S264954; People v. Smith (2020) 49
Cal.App.5th 85, 93-94, review granted July 22, 2020, S262835;
People v. Torres (2020) 46 Cal.App.5th 1168, 1179-1180, review
granted Jun. 24, 2020, S262011.

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in reviewing such a challenge to a special circumstance finding,
only undisputed facts can be considered (see, e.g., In re Scoggins
(2020) 9 Cal.5th 667), whereas section 1170.95, subdivision (d)(3)
allows for new and additional evidence. Because “[d]etermining a
defendant’s culpability under the special circumstances statute
requires a fact-intensive, individualized inquiry” (In re Scoggins,
at p. 683), this difference in the proof allowed in habeas
proceedings and 1170.95 proceedings could prove to be
determinative. In short, imposing a habeas requirement, with its
numerous procedural and technical obstacles, would defeat the
legislative intent behind section 1170.95, with its call for prompt,
abbreviated, and straightforward evidentiary proceedings.
In my opinion, the trial court erred when it denied
appellant his opportunity to prove that he is among those the
Legislature intended to benefit with passage of section 1170.95. I
would therefore reverse and remand for an evidentiary hearing
on his eligibility for relief.
NOT TO BE PUBLISHED.

TANGEMAN, J.

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 Rogelio G. Delgado, Judge

Superior Court County of Los Angeles

______________________________

Jonathan E. Demson, 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, Senior
Assistant Attorney General, David E. Madeo, Charles S. Lee,
Douglas Wilson, Deputy Attorneys General, for Plaintiff and
Respondent.