Filed 12/13/21 P. v. Sheard CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B308523
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA039399-01)
v.
NATHAN SHEARD,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los County, Stephen A. Marcus, Judge. Reversed and
remanded.
John Steinberg, 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, Kristen J. Inberg and David E.
Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Nathan Sheard, convicted in 2002 with codefendant David
Talmadge, of first degree murder with true findings the murder
had been committed during the commission of a residential
burglary and robbery, appeals the superior court’s denial of his
petition for resentencing pursuant to Penal Code section 1170.95 1
without issuing an order to show cause and holding an
evidentiary hearing to determine his eligibility for relief. We
agree the superior court erred in holding Sheard’s petition was
precluded as a matter of law by the jury’s felony-murder special-
circumstance finding, made more than a decade before the
Supreme Court’s identification in People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522
(Clark) of the factors properly considered to assess whether a
defendant was a major participant in an underlying serious
felony and had acted with reckless indifference to human life.
The superior court also committed prejudicial error by
prematurely engaging in factfinding when it determined, as an
alternate basis for its denial of the petition, that the record of
conviction, viewed in light of the Banks/Clark factors, supported
the jury’s major participant and reckless indifference findings
and Sheard, therefore, had failed to make a prima facie showing
of his entitlement to relief. We reverse the order denying
Sheard’s petition and remand with directions to issue an order to
show cause and to conduct further proceedings in accordance
with section 1170.95, subdivision (d).
1 Statutory references are to this code.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. Sheard’s Felony-murder Conviction
Our opinion affirming Sheard’s judgment of conviction
(with minor modifications of the sentence) describes the evidence
presented at his joint trial with Talmadge for the murder of
Sheard’s elderly aunt, Gertrude Mills. (People v. Sheard (Dec. 3,
2003, B160886) [nonpub. opn.].)
Sheard and Talmadge shared a bedroom in the home of
Sheard’s father. In March 1999 the three men painted the
interior of Mills’s house in Altadena. During the project Sheard
discovered a collection of guns in a hall closet.
On April 29, 1999 Sheard’s father heard Sheard, who was
speaking on the telephone to Talmadge, say, “What is she going
to give you that for? What does she want to loan you that for?
Don’t make me come all the way up there if she’s not going to
give it to you.” Sheard then left the house, telling his father he
was going to meet Talmadge at Mills’s house. Sheard and
Talmadge returned home after midnight.
The following day Sheard was driving Mills’s automobile.
At the home of a neighbor Sheard opened the car’s trunk, which
contained shotguns and rifles. Sheard said he had obtained the
firearms from an old lady whose husband had passed away.
Talmadge, who had arrived on foot, Sheard and the neighbor
then drove to the home of another man, where Talmadge sold
two of the shotguns.
Several days later Sheard, still driving Mills’s automobile,
failed to stop at a stop sign on his way to a car wash. A Burbank
police officer approached Sheard at the car wash and asked for
his license, registration and proof of insurance. Sheard said he
did not have a driver’s license and told the officer the car
3
belonged to a friend. The officer performed a pat search and
asked for permission to search the car, which Sheard granted.
The officer found a receipt from an automobile mechanic made
out to Mills. A second officer, who had arrived to provide backup,
discovered through a check of state records that the car belonged
to Mills. Questioned about Mills, Sheard said she was his aunt,
lived in Pasadena and was “on a little vacation.” Sheard was
arrested for driving without a license and taken into custody.
Following Sheard’s arrest Los Angeles County Sheriff’s
deputies went to Mills’s home, where they found her in the
bathtub, bound and fully clothed, submerged in water with a
portable heater on top of her body. An autopsy revealed Mills
had sustained head injuries from multiple strikes with a blunt
object and multiple rib fractures consistent with having been
repeatedly kicked or stomped. The report indicated the blows
may not have been immediately fatal; Mills may have drowned
after being placed in the bathtub with the weight of the heater on
her chest.
One of Talmadge’s fingerprints was found on a glass mug in
the residence. Partially smoked cigarettes with Talmadge’s and
Sheard’s DNA were found in the house. The gun collection was
missing. A safe in the kitchen was empty. In a search of
Sheard’s father’s home, officers found a pair of pants and a boot
in the room Sheard and Talmadge shared that were stained with
Mills’s blood. A ball peen hammer, normally kept in the room,
was not found during the search.
The jury at Sheard and Talmadge’s joint trial convicted
both men of first degree murder, first degree residential burglary
and first degree residential robbery. The jury found true the
special circumstance allegations the murder had occurred during
4
the commission of the burglary and robbery. The jury also found
true the allegation Sheard and Talmadge personally used a
deadly and dangerous weapon in the commission of the murder,
but found that allegation not true as to the burglary and robbery.
Each man was sentenced to an indeterminate state prison term
of life without parole, plus one year for the weapon enhancement.
(Sentences on the burglary and robbery counts were stayed
pursuant to section 654.)
We affirmed the judgments of conviction on appeal, as
modified to correct minor sentencing errors, 2 holding any error in
the admission of Sheard’s statement during the traffic stop was
harmless beyond a reasonable doubt in light of the
“overwhelming evidence of Sheard’s guilt,” which, we explained,
included that, when Sheard was questioned at the car wash,
printed in the dust on Mills’s car was the statement, “Gertrude, I
appreciate you leaving me a car”; Sheard’s DNA was found on a
cigarette on the floor next to the sofa where Mills had bled
profusely; and Sheard and Talmadge were selling guns stolen
from Mills’s house shortly after the murder. In a footnote we
added, “The lack of conclusive evidence as to which defendant
was the actual killer does not make the admission of Sheard’s
patrol-car statements prejudicial, as Sheard asserts. The People
did not argue the statements were evidence that Sheard was the
2 We modified the judgment to strike one-year sentence
enhancements for use of a deadly weapon on the robbery and
burglary convictions that had been improperly imposed and
stayed because the jury had found the allegations not true and
struck the parole revocation fine because Sheard and Talmadge
had been sentenced to life without parole.
5
actual killer, only that his lies to the police were evidence of
unspecified ‘guilt.’” (People v. Sheard, supra, B160886, fn. 6.)
We also rejected Sheard and Talmadge’s argument the
evidence did not support the jury’s finding they had murdered
Mills in the commission of the burglary and robbery, holding,
“[T]he record amply supports an inference Talmadge and Sheard
formed the intent to steal Mills’s property before they killed her,
thus justifying the special circumstances finding.”
2. Sheard’s Petition for Resentencing
On April 15, 2019 Sheard, representing himself, filed a
petition for resentencing under section 1170.95 and requested the
court appoint counsel to represent him in the resentencing
proceedings. Sheard checked several boxes on the printed form
petition to establish his eligibility for resentencing relief,
including the boxes stating he had been convicted under a felony-
murder theory and could not now be convicted of first or second
degree murder because of changes made to sections 188 and 189
by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437).3 The superior court appointed
counsel to represent Sheard.
The prosecutor filed a response to the resentencing petition
arguing Senate Bill 1437 was unconstitutional and a
supplemental brief contending Sheard was ineligible for
resentencing under section 1170.95 because he was the actual
3 Sheard did not check the boxes next to the statements he
did not, with intent to kill, aid or assist the actual killer and he
was not a major participant or did not act with reckless
indifference to human life during the course of the underlying
felony. Neither the prosecutor nor the superior court attached
any significance to this omission, nor do we.
6
killer, had the intent to kill or was a major participant who had
acted with reckless indifference to human life during the
underlying felonies. The supplemental response attached this
court’s opinion affirming Sheard’s conviction.
Sheard’s appointed counsel filed a response to the
prosecutor’s constitutional analysis and two supplemental briefs
arguing Sheard had made a prima facie showing of his eligibility
for resentencing relief.
At a hearing on September 25, 2020, after stating it had
reviewed all the material submitted by counsel, the court
declined to issue an order to show cause and denied the petition.
The court, accepting the reasoning of one of two lines of
conflicting authority, ruled, “[A] habeas petition must precede the
filing of a section 1170.95 petition when a pre-Banks and Clark
special circumstance is found true.” As an alternate basis for its
ruling, the court also found, “taking into account the jury’s
finding and then my own independent review of the record in this
case,” Sheard was a major participant in the underlying felonies
who had acted with reckless indifference to human life and,
accordingly, had failed to make a prima facie showing of his
entitlement to resentencing relief.
Sheard filed a notice of appeal on October 5, 2020. On
October 8, 2020 the court filed a 10-page memorandum of
decision. In its memorandum the court explained, “[T]he jury’s
special circumstance finding that Petitioner was a major
participant who acted with reckless indifference to life shows that
Petitioner could still be convicted of felony murder under the new
definitions in SB 1437. Accordingly, this means that Petitioner
cannot make a prima facie case that he is eligible for
resentencing.” After again explaining there were two conflicting
7
lines of authority, the court then ruled, “Penal Code
section 1170.95 is not the proper vehicle to attack the special
circumstances findings by a jury in a felony murder case, based
on the cases People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark). Instead, Petitioner
must file a petition for a writ of habeas corpus in order to
challenge the validity of the felony murder special circumstance
finding by the jury.” Finally, the court reviewed the Banks/Clark
factors and concluded, “Petitioner does meet the requirements of
a major participant, because he helped plan the robbery/burglary
of his aunt Gertrude Mills, and was present for the entire robbery
and murder.” In addition, the court stated, “While Petitioner has
denied he acted with reckless indifference to life, an examination
of the factors in Clark overwhelmingly support that Petitioner
acted in reckless indifference to life.”
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile)) and significantly narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e)(3); see People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).) It also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder based on the natural and probable consequences doctrine
to petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
8
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Lewis, at p. 957; Gentile, at
p. 843.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), requires the
court to appoint counsel to represent the petitioner, if requested; 4
to direct the prosecutor to file a response to the petition and
permit the petitioner to file a reply; and to determine if the
petitioner has made a prima facie showing that he or she is
entitled to relief. (See Lewis, supra, 11 Cal.5th at pp. 962-963.)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
conviction, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) However, “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. . . . However, if the record, including the
court’s own documents, contain[s] facts refuting the allegations
4 As amended by Senate Bill No. 775 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 551, § 2), effective January 1, 2022, the
requirement to appoint counsel is set forth in new
subdivision (b)(3) of section 1170.95, rather than subdivision (c).
9
made in the petition, then the court is justified in making a
credibility determination adverse to the petitioner.” (Id. at
pp. 970-971, internal quotation marks omitted.)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).)5 The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens. (See Gentile, supra, 10 Cal.5th at
pp. 853-854.)
2. Section 189, Subdivision (e)(3), and the Narrowed
Felony-murder Rule
At the time of Sheard and Talmadge’s trial section 189
permitted a conviction for felony murder by imputing malice to a
participant in an inherently dangerous felony, including
residential burglary and robbery, that resulted in a homicide.
(See People v. Chun (2009) 45 Cal.4th 1172, 1184.) As amended
by Senate Bill 1437, section 188, subdivision (a)(3), now prohibits
imputing malice based solely on an individual’s participation in a
crime and requires proof of malice to convict a principal of
5 As amended by Senate Bill No. 775, section 1170.95,
subdivision (d)(3), clarifies that, “A finding that there is
substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.”
10
murder except under the revised felony-murder rule as set forth
in section 189, subdivision (e), which requires proof of specific
facts relating to the defendant’s individual culpability: The
defendant was the actual killer (§ 189, subd. (e)(1)); although not
the actual killer, the defendant, with the intent to kill, assisted in
the commission of the murder (§ 189, subd. (e)(2)); or the
defendant was a major participant in an underlying felony listed
in section 189, subdivision (a), and acted with reckless
indifference to human life, “as described in subdivision (d) of
Section 190.2,” the felony-murder special-circumstance provision
(§ 189, subd. (e)(3)).
The overlapping factors for assessing whether a defendant
was a major participant in an underlying serious felony and acted
with reckless indifference to human life for purposes of
section 190.2, subdivision (d), and thus for new section 189,
subdivision (e)(3), were identified by the Supreme Court in
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522,
and reiterated most recently in In re Scoggins (2020) 9 Cal.5th
667 (Scoggins). As to whether the defendant was a major
participant in one of the specified felonies, the Banks Court listed
the following factors: “What role did the defendant have in
planning the criminal enterprise that led to one or more deaths?
What role did the defendant have in supplying or using lethal
weapons? What awareness did the defendant have of particular
dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did
11
the defendant do after lethal force was used?” (Banks, at p. 803,
fn. omitted.)
As to whether a defendant acted with reckless indifference
to human life, the Supreme Court has enumerated the following
factors: “Did the defendant use or know that a gun would be used
during the felony? How many weapons were ultimately used?
Was the defendant physically present at the crime? Did he or she
have the opportunity to restrain the crime or aid the victim?
What was the duration of the interaction between the
perpetrators of the felony and the victims? What was the
defendant’s knowledge of his or her confederate’s propensity for
violence or likelihood of using lethal force? What efforts did the
defendant make to minimize the risks of violence during the
felony?” (Scoggins, supra, 9 Cal.5th at p. 677; accord, Clark,
supra, 63 Cal.4th at pp. 618-622.) “‘“[N]o one of these
considerations is necessary, nor is any one of them necessarily
sufficient.”’” (Scoggins, at p. 677; accord, Banks, supra, 61 Cal.4th
at p. 803.)
As the Scoggins Court explained, “Reckless indifference to
human life is ‘implicit in knowingly engaging in criminal
activities known to carry a grave risk of death.’” (Scoggins, supra,
9 Cal.5th at p. 676; accord, Banks, supra, 61 Cal.4th at p. 808
[“[a]wareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient”; reckless
indifference to human life requires “knowingly creating a ‘grave
risk of death’”].) “Reckless indifference ‘encompasses a
willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire that
death as the outcome of his actions.’” (Scoggins, at pp. 676- 677,
quoting Clark, supra, 63 Cal.4th at p. 617.)
12
3. The Superior Court Erred in Denying Sheard’s Petition
Without Issuing an Order To Show Cause
a. The jury’s pre-Banks/Clark felony-murder special-
circumstance finding does not preclude relief as a
matter of law
In People v. Harris (2021) 60 Cal.App.5th 939, 954-958,
review granted April 28, 2021, S267802, we rejected the
argument a jury’s pre-Banks/Clark felony-murder special-
circumstance finding precludes relief under section 1170.95
absent a successful challenge to the evidentiary support for the
finding through a petition for writ of habeas corpus, the principal
ground for the superior court’s denial of Sheard’s petition for
resentencing. As we explained, a section 1170.95 petition
contests the murder conviction, not the special-circumstance
finding. (Harris, at pp. 956-957; see People v. York (2020)
54 Cal.App.5th 250, 260, review granted Nov. 18, 2020, S264954
[“section 1170.95 permits a petitioner to challenge a murder
conviction. If that challenge succeeds, then under
section 1170.95, subdivision (d)(3), the special circumstance is
vacated as a collateral consequence”].) Sheard’s petition was
made possible by Senate Bill 1437’s narrowing of the felony-
murder exception to the malice requirement for murder, not the
clarifications in Banks and Clark of the elements of the special
circumstance finding. (See § 1170.95, subd. (a)(3) [allowing
petition if “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”]; York, at p. 261 [“[w]hat permits a
defendant convicted of felony murder to challenge his or her
murder conviction based on the contention that he or she was not
a major participant in the underlying felony who acted with
reckless indifference to human life, are the changes Senate
13
Bill 1437 made to sections 188 and 189, and in particular the
addition of section 189, subdivision (e)(3), not the rulings in
Banks and Clark”].) The Attorney General has presented no
persuasive reason for us to modify our view on this issue. 6
Similarly, although Sheard’s jury was instructed it had to
find he had been a major participant in the residential burglary
and robbery that led to the victim’s death while acting with
reckless indifference to human life to find the felony-murder
special-circumstance allegations true, the elements now found in
section 189, subdivision (e)(3), as we also held in People v. Harris,
supra, 60 Cal.App.5th at page 957, review granted, such a pre-
Banks/Clark finding, without more, does not preclude relief under
section 1170.95. (See Scoggins, supra, 9 Cal.5th at pp. 673-674
[“Where 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. [Citation.] ‘In such circumstances, it is
settled that finality for purposes of appeal is no bar to relief, and
that habeas corpus or other appropriate extraordinary remedy
will lie to rectify the error’”]; People v. Secrease (2021)
63 Cal.App.5th 231, 256, review granted June 30, 2021, S268862
[“Because the changes made to section 189 prevent a defendant
from being convicted of murder solely for his participation in the
6 Whether a felony-murder special-circumstance finding
made before Banks, supra, 61 Cal.4th 788 and Clark, supra,
63 Cal.4th 522 precludes a defendant from making a prima facie
showing of eligibility for relief under section 1170.95 is pending
before the Supreme Court in People v. Strong, review granted
March 10, 2021, S266606.
14
offense without findings of major participation and reckless
indifference to human life, we conclude that a jury’s pre-Banks
and Clark special-circumstance determination cannot, by itself,
defeat the allegations of Secrease’s petition as a matter of law.
There must also be a judicial determination of the sufficiency of
the evidence to support that determination, and Secrease is
entitled to have it made in a section 1170.95 proceeding—under
current law”]; People v. York, supra, 54 Cal.App.5th at p. 262,
review granted [“a pre-Banks and Clark special circumstance
finding—necessarily made on the basis of our former, and
significantly different, understanding of what the terms ‘major
participant’ in the underlying felony and ‘reckless indifference’ to
human life meant—does not preclude relief under section 1170.95
as a matter of law”]; People v. Law (2020) 48 Cal.App.5th 811,
825, review granted July 8, 2020, S262490 [“the trial court erred
by concluding the special circumstance finding, on its own,
rendered Law ineligible for relief—that is, the court erred by
failing to determine whether Law qualified as a major participant
who acted with reckless indifference to human life under Banks
and Clark”]; People v. Torres (2020) 46 Cal.App.5th 1168, 1180,
review granted June 24, 2020, S262011 [because no court has
affirmed the special circumstance findings at issue post-Banks
and Clark, “[t]here is therefore a possibility that Torres was
punished for conduct that is not prohibited by section 190.2 as
currently understood”]; but see People v. Nunez (2020)
57 Cal.App.5th 78, 93, review granted Jan. 13, 2021, S265918
[disagreeing with York, Law and Torres]; People v. Galvan (2020)
52 Cal.App.5th 1134, 1141-1144, review granted Oct. 14, 2020,
S264284.)
15
b. The record of conviction does not establish Sheard is
ineligible for resentencing as a matter of law
Although the jury’s pre-Banks/Clark felony-murder special-
circumstance findings, standing alone, do not preclude
resentencing under section 1170.95, before it issued an order to
show cause, the superior court was authorized to review the
record of conviction to determine whether Sheard was ineligible
for resentencing under section 1170.95 as a matter of law.
(See Lewis, supra, 11 Cal.5th at p. 971.) As a general matter,
however, determining whether an aider and abettor was a major
participant in the underlying felony who acted with a reckless
indifference to human life is a fact-intensive inquiry, properly
performed by the trier of fact following issuance of an order to
show cause and an evidentiary hearing. (Cf. Scoggins, supra,
9 Cal.5th at p. 683 [determining whether a defendant was a
major participant in an underlying felony who acted with
reckless indifference to life within the meaning of the special-
circumstance statute “requires a fact-intensive, individualized
inquiry”]; In re Parrish (2020) 58 Cal.App.5th 539, 542 [Supreme
Court has prescribed “a fact-intensive and individualized inquiry”
to determine whether the evidence demonstrates reckless
indifference and major participation].)
Here, contrary to the superior court’s finding and the
Attorney General’s argument on appeal, although there is
evidence Sheard could still be convicted of murder under the
felony-murder rule, the record of conviction does not establish as
a matter of law—that is, without weighing the evidence and
engaging in factfinding—that he is ineligible for resentencing as
a major participant in the residential burglary and robbery who
acted with reckless indifference to human life. (See Lewis, supra,
16
11 Cal.5th at p. 974 [“at the prima facie stage, a petitioner’s
allegations should be accepted as true, and the court should not
make credibility determinations or engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion’”];
People v. Duchine (2021) 60 Cal.App.5th 798, 815 [“the time for
weighing and balancing and making findings on the ultimate
issues arises at the evidentiary hearing stage rather than the
prima facie stage, at least where the record is not dispositive on
the factual issues”].)
As we noted in our opinion on direct appeal, the trial record
lacked conclusive evidence as to whether Sheard or Talmadge
was the actual killer. Although reasonable inferences about what
happened inside the house may be possible, we simply do not
know. Both men may have been directly involved in beating
Mills and then placing her in the bathtub with a heavy weight on
top of her; one may have done the actual killing while the other
assisted him; or one of the men may have killed Mills while the
other was elsewhere in the house searching for valuables or
outside loading the firearms into the trunk of Mills’s car.
It may seem beyond dispute that both men were major
participants in the burglary and robbery, as defined in Banks,
supra, 61 Cal.4th 788. But the superior court’s analysis of the
evidence supporting this element, and particularly whether
Sheard planned the robbery, one of the Banks factors, highlights
the factfinding necessary to make this determination. The court
reasoned that Sheard “helped plan the robbery/burglary of his
aunt Gertrude Mills, and was present for the entire robbery and
murder. Both co-defendant Talmadge and Petitioner discussed
going over to Mills’ house, so she could give them something.
Petitioner’s father overheard the conversation between his son
17
and Talmadge regarding the fact they were going to Mills’ house
to get something. Finally, the fact that the two men went to see
an elderly woman (72 years old) late at night when there would
be no witnesses, supports the inference that Petitioner helped
plan this robbery and homicide.” As this discussion reveals,
there was no admission by Sheard or testimony from a witness
that Sheard helped plan the robbery. Although the conclusion
the court reached is reasonable, it is based on inferences—
factfinding—from circumstantial evidence.
Similarly, determining the forensic evidence together with
circumstantial evidence are sufficient to support a finding beyond
a reasonable doubt that, even if not the actual killer or an aider
and abettor acting with express malice, Sheard engaged in the
underlying felonies with reckless indifference to Mills’s life
requires a weighing of the evidence—factfinding—not permitted
at the prima facie stage of the section 1170.95 process.
DISPOSITION
The postjudgment order denying Sheard’s section 1170.95
petition is reversed. On remand the superior court is to issue an
order to show cause and to conduct further proceedings in
accordance with section 1170.95, subdivision (d).
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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