People v. Farfan

Filed 11/23/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B309786

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA136699)
v.
ORDER MODIFYING
EDGAR ALEJANDRO FARFAN, OPINION AND DENYING
REHEARING
Defendant and Appellant. [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on November 19,
2021, be modified as follows:
1. On page 3, after the second full paragraph, the opinion
is modified to add the following four paragraphs:
We also find no merit to appellant’s claim that
he has a constitutional right to a new jury
determination that he was a major participant who
acted with reckless indifference to human life under
Banks and Clark before his section 1170.95 petition
may be denied. A jury has already made that
determination. When appellant’s jury found the
felony-murder special circumstance true, it
necessarily found beyond a reasonable doubt that
appellant either acted with intent to kill or was a
major participant in the robbery who acted with
reckless indifference to human life as those concepts
were explained in Banks and Clark. (See People v.
Allison (2020) 55 Cal.App.5th 449, 457 (Allison).)
Moreover, in his direct appeal from the
conviction, appellant challenged the jury’s special
circumstance finding on substantial evidence
grounds. We rejected the challenge, holding, “Under
the framework established by our Supreme Court in
People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark), we find
sufficient evidence to show that defendants acted
with reckless indifference to human life and thus
sufficient evidence to support the true finding on the
felony-murder special-circumstance allegation.”
(Farfan I, supra, B277516.)
The mere filing of a section 1170.95 petition
does not afford the petitioner a new opportunity to
raise claims of trial error or attack the sufficiency of
the evidence supporting the jury’s findings. To the
contrary, “[n]othing in the language of section
1170.95 suggests it was intended to provide redress
for allegedly erroneous prior factfinding. . . . 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

2
 do-over on factual disputes that have already been
resolved.” (Allison, supra, 55 Cal.App.5th at p. 461.)
Finally, a petitioner is not entitled to a jury
trial at any point in the section 1170.95 process.
Indeed, courts have uniformly held that section
1170.95 does not implicate the Sixth Amendment
right to a jury trial. (See, e.g., People v. James (2021)
63 Cal.App.5th 604, 608, 609, and cases cited.)

2. On page 14, the citation to People v. Allison in the
second full paragraph is changed to read: Allison, supra, 55
Cal.App.5th at p. 457.

There is no change in the judgment.
Appellant Edgar Alejandro Farfan’s petition for rehearing
is denied.

LUI, P. J. CHAVEZ, J. HOFFSTADT, J.

3
Filed 11/19/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B309786

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA136699)
v.

EDGAR ALEJANDRO FARFAN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County. Michael J. Shultz, Judge. Affirmed.
Edward H. Schulman, 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, Idan Ivri and Rene Judkiewicz,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
 Edgar Alejandro Farfan appeals the summary denial of a
petition for resentencing under Penal Code1 section 1170.95.
Appellant was convicted in 2016 of the first degree murder
of Kamell Heno (§ 187, subd. (a); count 1), kidnapping to commit
another crime (§ 209, subd. (b)(1); count 2), and robbery (§ 211;
count 3). The jury found true the special circumstance allegation
that the murder was committed while appellant was engaged in
the commission of a robbery. (§ 190.2, subd. (a)(17).) The trial
court sentenced appellant to life without the possibility of parole
on count 1, plus five years for the robbery conviction. (People v.
Farfan (Feb. 8, 2018, mod. Mar. 2, 2019, B277516) [nonpub. opn.]
(Farfan I).) This court affirmed the judgment on appeal. (Ibid.)
In January 2019, appellant filed a petition for recall and
resentencing under section 1170.95 (the “2019 petition”).
Without appointing counsel, the superior court summarily denied
the petition on January 28, 2019, on the grounds that the jury
was not instructed on the natural and probable consequences
doctrine and the jury’s true finding on the special circumstance
allegation precludes relief under section 1170.95 as a matter of
law. On May 17, 2019, the superior court modified its January
28, 2019 memorandum of decision with a summary of this court’s
analysis and rejection of petitioner’s substantial evidence
challenge to the special circumstance finding under People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark).
Appellant did not appeal the superior court’s order, but
filed a second petition for section 1170.95 relief on September 16,
2020 (the “2020 petition”). On September 29, 2020, appellant

1 Undesignated statutory references are to the Penal Code.

2
filed a motion for reconsideration of the denial of his 2019
petition. The superior court denied both the motion for
reconsideration and the 2020 petition on October 19, 2020, and
appellant appealed.
As a preliminary matter, we reject respondent’s contention
that the second 1170.95 petition from which this appeal arises is
procedurally barred as a successive petition. In the 2020
petition, appellant cited new legal authority which undermined
the basis for the superior court’s denial of the 2019 petition.
Neither the express language of section 1170.95 nor the stated
purpose of the legislation supports limiting access to relief under
section 1170.95 as advocated by respondent where, as here, the
subsequent petition rested on new legal authority which
challenged the basis for the superior court’s summary denial of
the previous petition.
Turning to the merits of the appeal, we conclude that
because appellant filed a facially sufficient section 1170.95
petition, the superior court erred in denying the petition without
first appointing counsel. (See People v. Lewis (2021) 11 Cal.5th
952, 967, 970 (Lewis).) The error, however, was harmless. (Id. at
pp. 970–972, 974–975.) In finding the felony-murder special
circumstance true, the jury necessarily found appellant either
acted with intent to kill or was a major participant in the robbery
who acted with reckless indifference to human life. This finding
establishes that appellant is ineligible for section 1170.95 relief
as a matter of law. (People v. Simmons (2021) 65 Cal.App.5th
739, 746–747, 749, review granted Sept. 1, 2021, S270048
(Simmons).)

3
 FACTUAL BACKGROUND2
Kamell Heno was employed as a delivery driver for Cartons
to Go, a company that bought and sold cigarettes. On
December 4, 2014, Heno was scheduled to deliver cigarettes
worth $217,000 to Cartons to Go in LaVerne. That morning,
driving a large white box truck, Heno picked up the cigarettes
from Giant Wholesale in Sunland and Costco in Burbank, but he
never arrived in LaVerne.
Around 3:30 that afternoon, Heno’s truck was discovered
parked on the 10200 block of South Grand Avenue in the city of
Los Angeles. Only about 10 percent of the cigarettes Heno had
collected that morning remained in the truck’s cargo area. Heno
was found on the floor of the truck with a red stained cloth
covering his head. His face was wrapped in duct tape, which
covered his eyes and mouth. He had two projectile head wounds
from a BB gun in addition to multiple abrasions, lacerations, and
bruises on his head, neck, and upper extremities. Heno was
pronounced dead at the scene. An autopsy indicated the cause of
death to be asphyxiation.
Prior to December 4, appellant, his brother Josue Farfan
(Josue), and Josue’s wife, Jennifer Medina, agreed to rob a
delivery truck of its cargo of cigarettes. In accordance with the
plan, on the morning of December 4, appellant drove Medina and
Josue in his SUV to Cigar Cartel, where they parked and waited
until the white box truck driven by Heno pulled out. Appellant

2 The facts of the underlying offenses are summarized from
our unpublished opinion in the direct appeal, of which we have
taken judicial notice. (Farfan I, supra, B277516; Evid. Code,
§§ 451, 459.)

4
followed the truck as it picked up its cargo. When the truck left
Costco, appellant followed it onto the freeway and hit Heno’s
truck with his SUV to force it to stop.
The truck pulled over, and Heno got out. Appellant exited
the SUV carrying a BB gun and shoved Heno into the passenger
side of the truck. Josue got into the truck and the brothers drove
away with Heno while Medina followed in the SUV. Eventually,
the truck exited the freeway, drove into a neighborhood and
parked. Appellant, Josue, and Medina filled the SUV with
cigarettes from the truck and drove away, leaving Heno in the
cab of his truck.
DISCUSSION
I. Appellant’s Second Petition for Relief Under
Section 1170.95 Is Not Procedurally Barred as a
Successive Petition
Respondent contends that the section 1170.95 petition
appellant filed in 2020, which is the basis of this appeal, is
procedurally barred as a successive petition. We disagree.
As California courts have grappled with the interpretation
and application of section 1170.95’s procedures for obtaining
resentencing relief since the legislation took effect on January 1,
2019, various splits of authority have emerged on several issues.
Among those issues are three presented in the instant appeal:
(1) May the superior court consider the record of conviction in
determining whether the petitioner has made a prima facie
showing of eligibility for relief under section 1170.95,
subdivision (c)? (Yes.) (2) May the superior court summarily
deny a facially sufficient petition for failure to make the prima
facie showing without first appointing counsel? (No.) And
(3) Does a jury’s felony-murder special circumstance finding

5
under section 190.2, subdivision (a)(17) preclude a prima facie
showing of eligibility under section 1170.95, subdivision (c)? The
California Supreme Court has answered the first two questions
in Lewis, supra, 11 Cal.5th at pages 957, 967, 970, 972, but the
third issue remains pending before the Supreme Court in People
v. Strong, review granted March 10, 2021, S266606 (Strong)
[“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 May 26, 2021], archived at
.)
Appellant’s 2019 petition was facially sufficient and thus
triggered the requirement that a request for appointment of
counsel be honored before the superior court may consider the
record of conviction to determine whether the appellant made a
prima facie showing of eligibility for relief. (Lewis, supra, 11
Cal.5th at p. 957.) Appellant’s subsequent petition was also
facially sufficient and should also have prompted the
appointment of counsel. Furthermore, appellant’s 2020 petition
cited three appellate decisions issued after the superior court’s
summary denial of the 2019 petition: People v. York (2020) 54
Cal.App.5th 250, review granted Nov. 18, 2020, S264954 (York);
People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22,
2020, S262835 (Smith); and People v. Torres (2020) 46
Cal.App.5th 1168, review granted June 24, 2020, S262011

6
(Torres). Reflecting the still-evolving state of 1170.95
jurisprudence, these cases held, among other things, that a jury’s
pre-Banks and Clark felony-murder special circumstance finding
does not, by itself, preclude a defendant from showing that he or
she could not now be convicted of first or second degree murder as
redefined by Senate Bill No. 1437. (York, at pp. 260–261, rev.gr.;
Smith, at p. 93, rev.gr.; Torres, at p. 1179, rev.gr.; see also People
v. Gonzalez (2021) 65 Cal.App.5th 420, 431, review granted
Aug. 18, 2021, S269792 (Gonzalez); People v. Harris (2021) 60
Cal.App.5th 939, 956, review granted Apr. 28, 2021, S267802
(Harris).)
Respondent asserts that “successive section 1170.95
petitions are generally barred by the doctrine of collateral
estoppel,” but acknowledges that section 1170.95 contains no
express bar to successive petitions. In our view, application of
collateral estoppel to bar consideration of appellant’s 2020
petition would thwart Senate Bill No. 1437’s overall purpose of
ensuring that “a person’s sentence is commensurate with his or
her individual criminal culpability” (see People v. Gentile (2020)
10 Cal.5th 830, 842–843 (Gentile); Lewis, supra, 11 Cal.5th at
p. 971), and that “all those entitled to resentencing are able to
obtain relief” (Lewis, at p. 968). This is especially true in this
case, where the superior court never appointed counsel even
though appellant filed two facially sufficient petitions. (See
Lewis, at p. 957 [“the statutory language and legislative intent of
section 1170.95 make clear that petitioners are entitled to the
appointment of counsel upon the filing of a facially sufficient
petition”].)
Application of collateral estoppel is not automatic, but is
subject to public policy considerations. (Lucido v. Superior Court

7
(1990) 51 Cal.3d 335, 342–343.) As our Supreme Court has
explained, “[T]he public policies underlying collateral estoppel—
preservation of the integrity of the judicial system, promotion of
judicial economy, and protection of litigants from harassment by
vexatious litigation—strongly influence whether its application in
a particular circumstance would be fair to the parties and
constitutes sound judicial policy.” (Id. at p. 343.) In this case,
none of these public policy considerations favors application of
collateral estoppel to bar appellant’s 2020 petition. (See Lewis,
supra, 11 Cal.5th at p. 967 [“Appointing counsel to assist a
petitioner in navigating these complex theories, upon the filing of
a facially sufficient petition, promotes the reliability of section
1170.95’s petitioning process and thereby advances Senate Bill
1437’s stated purpose”].)
Respondent also analogizes to the general rule in habeas
corpus procedure that a “court will not consider repeated
applications for habeas corpus presenting claims previously
rejected” (In re Clark (1993) 5 Cal.4th 750, 767) to argue that
appellant’s petition is barred. But the general rule does not
apply in habeas proceedings when there has been a retroactive
change in the law affecting the petitioner. (In re Martinez (2017)
3 Cal.5th 1216, 1222.) As our Supreme Court explains, a change
is retroactive when it “is substantive rather than procedural (i.e.,
it alters the range of conduct or the class of persons that the law
punishes, or it modifies the elements of the offense) or when a
judicial decision undertakes to vindicate the original meaning of
the statute.” (Ibid.)
Under this standard, not only are the changes to the law
effected by Senate Bill No. 1437 themselves retroactive, but
judicial interpretations of section 1170.95 may afford a petitioner

8
grounds for claiming eligibility for relief under the statute that
were not previously available under other judicial
interpretations. Here, because appellant’s 2020 petition was
based on new authority which challenged the primary ground for
the superior court’s summary denial of his 2019 petition, the
2020 petition was not procedurally barred as a successive
petition. (See In re Clark, supra, 5 Cal.4th at p. 767 [“It has long
been the rule that absent a change in the applicable law or the
facts, the court will not consider repeated applications for habeas
corpus presenting claims previously rejected,” italics added]; In re
Richards (2016) 63 Cal.4th 291, 294, fn. 2 [“Because of the
change in the applicable law concerning the definition of false
evidence, the petition is not subject to the procedural bar of
successiveness”].)
II. Because the Jury Found the Robbery-murder
Special Circumstance True, Appellant Is
Ineligible for Relief Under Section 1170.95 as a
Matter of Law
A. Applicable legal principals
The Legislature enacted Senate Bill No. 1437 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);
Gentile, supra, 10 Cal.5th at p. 842; People v. Martinez (2019) 31
Cal.App.5th 719, 723 (Martinez).)
Prior to the enactment of Senate Bill No. 1437, “a
defendant who intended to commit a specified felony could be

9
convicted of murder for a killing during the felony, or attempted
felony, without further examination of his or her mental state”
under the felony-murder rule. (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.)
In order to ensure that a person’s sentence is
commensurate with his or her criminal culpability (Lewis, supra,
11 Cal.5th at p. 971), the Legislature substantively amended
sections 188 and 189, and added section 1170.95 (Gentile, supra,
10 Cal.5th at pp. 842–843). Section 1170.95 affords persons
previously convicted of murder under a felony murder or natural
and probable consequences theory a procedure by which to seek
resentencing if they could no longer be convicted under the law as
amended. (Lewis, at pp. 957, 959; Gentile, at p. 843; Martinez,
supra, 31 Cal.App.5th at pp. 722–723.)
Subdivision (a) of section 1170.95 sets forth the
requirements for a facially sufficient petition. The petitioner
must aver that (1) the charging document “allowed the
prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine”;
(2) “petitioner was convicted of first or second degree murder”;
and (3) “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); Lewis, supra, 11 Cal.5th

10
at pp. 959–960.) “Subdivision (b) in turn ‘describes where and
how the petition must be filed and specifies its required content,’
including a declaration by the petitioner that he or she ‘is eligible
for relief according to the criteria set out in subdivision (a).’ ”
(People v. Clayton (2021) 66 Cal.App.5th 145, 152.) “If a petition
fails to comply with subdivision (b)(1), ‘the court may deny the
petition without prejudice to the filing of another petition.’
(§ 1170.95, subd. (b)(2).)” (Lewis, at p. 960.)
When a petition for resentencing under section 1170.95
meets the requirements of subdivisions (a) and (b), the superior
court “proceeds to subdivision (c)[3] to assess whether the
petitioner has made ‘a prima facie showing’ for relief. (§ 1170.95,
subd. (c).)” (Lewis, supra, 11 Cal.5th at p. 960.) At this stage, the
superior court must accept briefing from the parties before
making its prima facie determination of eligibility. (Id. at
pp. 957, 971.)
After the superior court’s summary denial of the 2020
petition in this case, our Supreme Court resolved a split of
authority in the appellate courts, holding that the petitioner 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.) Lewis further held
that section 1170.95 contemplates one prima facie review, not

3 Section 1170.95, subdivision (c) provides in relevant part:
“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 this section. . . . 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.”

11
two, and does not permit summary denial of the petition based on
a petitioner’s ineligibility prior to the appointment of counsel.
(Id. at pp. 957, 961–963.) Finally, only after the appointment of
counsel and the opportunity for briefing may the superior court
consider the record of conviction to determine whether the
petitioner makes a prima facie showing that he or she is entitled
to relief. (Id. at pp. 970–971.)
“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.” (Lewis, supra, 11 Cal.5th at p. 971.) In
reviewing any part of the record to make its preliminary
assessment regarding whether the petitioner would be entitled to
relief if his or her factual allegations were proved, the superior
court does not engage in factfinding and must take petitioner’s
factual allegations as true. (Id. at pp. 971–972.) Lewis further
cautioned that although it is generally considered to be part of
the record of conviction, “the probative value of an appellate
opinion is case specific, and ‘it is certainly correct that an
appellate opinion might not supply all answers.’ ” (Id. at p. 972,
quoting People v. Woodell (1998) 17 Cal.4th 448, 457.) Thus, only
“ ‘if the record, including the court’s own documents, “contain[s]
facts refuting the allegations made in the petition,” ’ ” is the
superior court “ ‘ “justified in making a credibility determination
adverse to the petitioner.” ’ ” (Lewis, at p. 971.)

12
 B. The superior court erred in failing to appoint
counsel, but the error was harmless in light of the jury’s
true finding on the robbery-murder special circumstance
allegation
Appellant’s 2020 petition for resentencing met the
requirements for facial sufficiency and he requested counsel.
Lewis therefore dictates our conclusion that the superior court
erred in its summary denial of appellant’s petition without first
appointing counsel and accepting briefing from the parties.
Nevertheless, we conclude the error was harmless.
By adding subdivision (e) to section 189, Senate Bill
No. 1437 made the crime of felony murder subject to the same
elements of proof required for a special circumstance finding
under section 190.2, subdivision (d).4 (People v. Superior Court
(Ferraro) (2020) 51 Cal.App.5th 896, 907 [“ ‘the standard under
section 189, subdivision (e)(3) for holding a defendant liable for
felony murder is [now] the same as the standard for finding a
special circumstance under section 190.2[, subdivision ](d), as the
former provision expressly incorporates the latter’ ”]; In re Taylor
(2019) 34 Cal.App.5th 543, 561.) Specifically, to be convicted of

4 Subdivision (d) of section 190.2 remains the same today
as in 2016 when appellant was convicted: “[E]very person, not
the actual killer, who, with reckless indifference to human life
and as a major participant, aids, abets, counsels, commands,
induces, solicits, requests, or assists in the commission of a felony
enumerated in paragraph (17) of subdivision (a) which results in
the death of some person or persons, and who is found guilty of
murder in the first degree therefor, shall be punished by death or
imprisonment in the state prison for life without the possibility of
parole if a special circumstance enumerated in paragraph (17) of
subdivision (a) has been found to be true under Section 190.4.”

13
first degree murder under section 189 as amended, a participant
in one of the felonies enumerated in subdivision (a) must have
been the actual killer, or a direct aider and abettor who acted
with the intent to kill, or “a major participant in the underlying
felony [who] acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (§ 189, subd. (e).)
Here, appellant’s jury was instructed pursuant to
CALCRIM No. 703 that if it found appellant was not the actual
killer, it could not find the robbery-murder special circumstance
true unless it was satisfied beyond a reasonable doubt that
appellant intended to kill or he was a major participant in the
crime, and, when he participated in the crime, he acted with
reckless indifference to human life. The jury was further
instructed that “[a] person acts with reckless indifference to
human life when he or she knowingly engages in criminal activity
that he or she knows involves a grave risk of death.”
In order to obtain relief from his or her felony murder
conviction under section 1170.95, a petitioner must make a prima
facie showing that he or she “could not be convicted of first or
second degree murder because of changes to Section 188 or 189”
made by Senate Bill No. 1437. (§ 1170.95, subd. (a)(3), italics
added; People v. Allison (2020) 55 Cal.App.5th 449, 457 (Allison);
People v. Nunez (2020) 57 Cal.App.5th 78, 90, review granted
Jan. 13, 2021, S265918 (Nunez).) But the jury’s special
circumstance finding in this case means it necessarily found
beyond a reasonable doubt that appellant either had the intent to
kill or he was a major participant in the robbery who acted with
reckless disregard for human life. Accordingly, the jury’s true
finding on the special circumstance establishes appellant is
ineligible for section 1170.95 relief as a matter of law. (See

14
Allison, supra, 55 Cal.App.5th at pp. 460–462; Simmons, supra,
65 Cal.App.5th at pp. 747, 749, rev.gr.)
As noted above, 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
Strong, supra, (S266606, rev.gr.).) While some courts have
concluded that such a finding does not, by itself, make a
petitioner ineligible for relief (see, e.g., Gonzalez, supra, 65
Cal.App.5th at p. 431, rev.gr.; Harris, supra, 60 Cal.App.5th at
p. 956, rev.gr.; York, supra, 54 Cal.App.5th at pp. 260–261,
rev.gr.; Smith, supra, 49 Cal.App.5th at p. 93, rev.gr.; Torres,
supra, 46 Cal.App.5th at p. 1179, rev.gr.), the majority of courts
have held that a felony-murder special circumstance precludes
section 1170.95 relief as a matter of law (see, e.g., Simmons,
supra, 65 Cal.App.5th at pp. 747, 749, rev.gr.; People v. Jones
(2020) 56 Cal.App.5th 479, 478–479, review granted Jan. 27,
2021, S265854; Nunez, supra, 57 Cal.App.5th at p. 90, rev.gr.;
Allison, supra, 55 Cal.App.5th at pp. 460–462; People v. Gomez
(2020) 52 Cal.App.5th 1, 14–15, 17, review granted Oct. 14, 2020,
S264033; People v. Galvan (2020) 52 Cal.App.5th 1134, 1141,
review granted Oct. 14, 2020, S264284; People v. Murillo (2020)
54 Cal.App.5th 160, 168, review granted Nov. 18, 2020, S264978).
The conflict in these cases is not relevant to our conclusion that
the felony-murder special circumstance finding bars section
1170.95 relief in this case, however.
The issue resolved in all of these cases and pending before
our Supreme Court in Strong is whether a special circumstance
finding made before Banks and Clark precludes 1170.95 relief as
a matter of law. But here, the special circumstance finding was

15
made after, not before Banks and Clark were decided.5 Although
appellant’s jury was not instructed with the Banks and Clark
factors, we have observed that “our Supreme Court has not
required that juries be instructed on the clarifications, and in the
wake of Banks and Clark, no mandatory language or material
changes were made to the CALCRIM special circumstance
instructions.” (Nunez, supra, 57 Cal.App.5th at p. 92, rev.gr.;
Allison, supra, 55 Cal.App.5th at p. 458; see CALCRIM No. 703
(2021 ed.).) Instead, CALCRIM No. 703 now includes a list of the
Banks and Clark factors which may be given in the trial court’s
discretion. (Nunez, at p. 92 [language drawn from Banks and
Clark regarding the factors a jury may consider is optional];
Allison, at pp. 458–459; People v. Price (2017) 8 Cal.App.5th 409,
450–451 [jury instructions that omit the Banks and Clark factors
are not defective]; see Bench Notes to CALCRIM No. 703 (2021
ed.).)
Thus, even though appellant’s jury was not instructed with
the Banks and Clark factors, this case falls outside the split of
authority to be resolved by our Supreme Court in Strong. The
jury’s robbery-murder special circumstance finding constitutes a
valid finding beyond a reasonable doubt that appellant had the
intent to kill or was a major participant in the robbery who acted
with reckless disregard for human life, and that finding makes
appellant ineligible for relief under section 1170.95 as a matter of
law.

5The jury returned its verdict on July 26, 2016,
approximately one year after Banks, and one month after Clark
came down.

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 In Lewis, our Supreme Court held the deprivation of a
petitioner’s 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. (Lewis, supra, 11 Cal.5th at
pp. 957–958, 973.) Lewis further held that any error in
summarily denying a section 1170.95 petition may be harmless
unless the petitioner can show “ ‘ “it is reasonably probable that if
[he or she] had been afforded assistance of counsel his [or her]
petition would not have been summarily denied without an
evidentiary hearing.” ’ ” (Id. at p. 974.)
Because the jury’s felony-murder special circumstance
finding precludes relief under section 1170.95 as a matter of law,
appellant cannot carry his burden of showing a reasonable
probability that the outcome of the proceeding would have been
any different had the superior court appointed counsel and
received briefing. We therefore conclude that the superior court’s
error in summarily denying the 2020 petition without first
appointing counsel was harmless. (Lewis, supra, 11 Cal.5th at
p. 974.)
C. Appellant is not entitled to relief under section
1170.95 based on the natural and probable consequences
instructions given in connection with the uncharged
conspiracy to commit robbery
Appellant contends the instructions given allowed the jury
to convict appellant of first degree felony murder as an aider and
abettor under two alternative theories: “traditional” felony
murder and felony murder based on appellant’s participation in
an uncharged conspiracy to commit robbery. With regard to the
latter theory, the jury was instructed that if death was a natural
and probable consequence of the conspiracy’s target offense of

17
robbery, then any member of the conspiracy who intended that a
member of the conspiracy commit the robbery could be convicted
of first degree felony murder. (CALCRIM Nos. 417, 540B.) The
general verdicts did not indicate whether the jury found
appellant to be the actual killer. Moreover, the verdicts did not
specify the theory upon which the murder conviction was
predicated—“traditional” felony murder, or the prosecution’s
alternate theory of an uncharged conspiracy to commit robbery,
which embraced the doctrine of natural and probable
consequences. Thus, according to appellant, there is no way to
ascertain from the record which theory formed the basis for the
jury’s first degree murder verdict. And because the jury was
misdirected on an alternate theory of first degree felony murder
that incorporated the natural and probable consequences
doctrine, appellant maintains that the matter must be reversed
and remanded for issuance of an order to show cause and an
evidentiary hearing in accordance with section 1170.95,
subdivisions (c) and (d). (See People v. DeHuff (2021) 63
Cal.App.5th 428, 442–443.)
Appellant’s argument might have merit were it not for the
jury’s true finding on the felony-murder special circumstance in
this case. While it is true (contrary to the superior court’s
conclusion) that appellant’s jury was instructed on an alternate
uncharged conspiracy theory which incorporated natural and
probable consequences principles, the jury’s special circumstance
finding demonstrates that appellant’s murder conviction was not
predicated on any theory of derivative liability. Indeed, as set
forth above, viewing the jury’s true finding on the felony-murder
special circumstance in light of CALCRIM No. 703 establishes
that the jury found, beyond a reasonable doubt, that if appellant

18
was not the actual killer, he had the intent to kill or was a major
participant in the robbery who acted with reckless disregard for
human life. This finding simply leaves no room for speculation
that the jury might have relied on the alternate uncharged
conspiracy theory and natural and probable consequences to
convict appellant of murder.
The superior court correctly determined that appellant is
ineligible for section 1170.95 relief as a matter of law by virtue of
the jury’s felony-murder special circumstance finding.
Accordingly, the superior court’s misreading of the record of
conviction with respect to the natural and probable consequences
doctrine in denying appellant’s petition is immaterial. (People v.
Hopson (2017) 3 Cal.5th 424, 459 [“a ruling will not be disturbed
on appeal merely because it was given for a wrong reason, if the
ruling would otherwise be correct ‘ “ ‘upon any theory of the law
applicable to the case,’ ” ’ and ‘ “ ‘regardless of the considerations
which may have moved the trial court to its conclusion’ ” ’ ”].)

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 DISPOSITION
The superior court’s order denying relief under Penal Code
section 1170.95 is affirmed.
CERTIFIED FOR PUBLICATION.

LUI, P. J.
We concur:

CHAVEZ, J.

HOFFSTADT, J.

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