People v. Valle CA1/5

Filed 12/20/21 P. v. Valle CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent, A162298
v.
RAUL ANTONIO VALLE, (Marin County
Defendant and Appellant. Super. Ct. No. SC039946A)

Defendant Raul Antonio Valle and his former codefendant Cruz Alberto
Mendoza were convicted in 1994 of robbery-burglary special-circumstance
murder. Defendant was sentenced to life in prison without possibility of
parole, a judgment affirmed on appeal up to the California Supreme Court.
(See People v. Mendoza (2000) 23 Cal.4th 896, 900 (Mendoza).)
In 2020, defendant petitioned for relief under newly enacted Penal
Code section 1170.95,1 a provision allowing a person, such as himself,
convicted of felony murder under a now invalidated theory of accomplice
liability to seek resentencing. (See Sen. Bill No. 1437 (2017–2018 Reg. Sess.)
(Sen. Bill 1437).)
The trial court summarily denied defendant’s petition on the grounds
that he was barred from relief under section 1170.95 based on the jury’s

1 Unless otherwise stated all statutory citations are to the Penal Code.

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special circumstance finding that he was either the actual killer or an aider
and abettor who, with the intent to kill, aided, abetted, or assisted in the
commission of the murder or, with reckless indifference to human life and as
a major participant, aided, abetted, or assisted in the commission of a robbery
or burglary that resulted in someone’s death. (See § 190.2, subds. (b)–(d).)
For reasons that follow, we reject the trial court’s legal premise that a
defendant convicted of special circumstance felony murder is automatically
barred from obtaining resentencing relief under section 1170.95. The special
circumstance finding in defendant’s case was made before the California
Supreme Court issued two opinions (People v. Banks (2015) 61 Cal.4th 788
(Banks); People v. Clark (2016) 63 Cal.4th 522 (Clark)) that redefined the
circumstances under which a defendant, such as ours, could be convicted of
special circumstance felony murder. Read together, Banks and Clark identify
factors for the jury to consider in determining whether a defendant was a
“major participant” who acted with “reckless indifference” in the course of a
felony murder. (Banks, supra, at p. 803; Clark, supra, at pp. 618–623.) In
this case, no court has ever determined that, under Banks and Clark, the
special circumstance finding against defendant was supported by sufficient
evidence. (People v. Secrease (2021) 63 Cal.App.5th 231, 256, review granted
June 30, 2021, S268862 (Secrease).) While this court could theoretically
make this legal determination in the first instance, we lack a sufficient record
on appeal to do so.
Accordingly, we remand this matter to the trial court to determine on
an appropriate record whether the special circumstance finding against
defendant is supported by sufficient evidence when considered in light of
Banks and Clark and if not, to review his petition in accordance with section

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1170.95, subdivision (c) (as amended effective January 1, 2022)2 to determine
whether he may be entitled to resentencing relief. As explained post, if
defendant’s special circumstance is invalid under Banks/Clark, a prima facie
case could be made that his murder conviction is no longer valid under
sections 188 and 189, as amended by Sen. Bill 1437.
FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant’s Conviction.
The following facts are taken from Mendoza, supra, 23 Cal.4th 896, the
California Supreme Court’s opinion affirming the Court of Appeal’s upholding
of the convictions of defendant and codefendant Mendoza.
On September 22, 1992, defendant and Mendoza were indicted for
“ ‘[m]urder in violation of Section 187(A),’ second degree robbery (§ 211), and
burglary (§ 459). These charges arose out of the killing of Pastor Dan Elledge
at The Lord’s Church in Novato, California. As special circumstances for
sentencing purposes, the indictment also alleged that defendants committed
murder while they were engaged in committing robbery and burglary.
(§ 190.2, subd. (a)(17).)” (Mendoza, supra, 23 Cal.4th at p. 900.) On
defendants’ motion, the prosecution presented its evidence against
defendants simultaneously to separate juries. “As to both defendants, the
prosecution’s only murder theory was that Valle and Mendoza shot and killed
Pastor Elledge while burglarizing and robbing The Lord’s Church (as one in a
series of church robberies).” (Ibid.)
“At trial, Valle conceded his guilt of all substantive charges but
contested the special circumstances allegations. Thus, he admitted having
committed first degree felony murder (as well as burglary and robbery) with
Mendoza at The Lord’s Church. However, he maintained Mendoza had fired

2 Stats. 2021, ch. 551, § 2.

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the fatal gunshots. Based on this contention, Valle also argued that at the
time of the murder, he lacked the mental state a mere participant must have
for a true finding on the special circumstances allegations. In making this
argument, he relied on evidence that at the time of the murder, he suffered
from posttraumatic stress syndrome related to prior combat experiences in
El Salvador.” 3 (Mendoza, supra, 23 Cal.4th at p. 904.)
“Consistent with the prosecution’s theory and Valle’s defense, the trial
court instructed Valle’s jury only on first degree felony murder as follows:
‘The defendant is accused in Count One of the Indictment of having
committed the crime of murder, a violation of Penal Code Section 187.
[¶] Every person who unlawfully kills a human being during the commission
or attempted commission of robbery or burglary, is guilty of the crime of
murder, in violation of Section 187 of the Penal Code. [¶] In order to prove
such crime, each of the following elements must be proved: First, a human
being was killed; second, the killing was unlawful; and third, the killing
occurred during the commission or attempted commission of robbery or
burglary. [¶] The unlawful killing of a human being, whether intentional,
unintentional or accidental, which occurs during the commission or
attempted commission of the crime of robbery or burglary, is murder of the
first degree when the perpetrator had the specific intent to commit such
crime. [¶] The specific intent to commit robbery or burglary and the
commission or attempted commission of such crime must be proved beyond a
reasonable doubt. [¶] In order for an accused to be guilty of murder as an
aider and abettor of a burglary, he must have formed the intent to encourage
or facilitate the perpetrator prior to or at the time the perpetrator entered

3The prosecution theorized that defendant was the actual killer of
Pastor Dan Elledge. (Mendoza, supra, 23 Cal.4th at p. 905.)

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[T]he Lord’s Church with the required specific intent. [¶] For an accused to be
guilty of . . . murder, as an aider and abettor to a robbery, he must have
formed the intent to encourage or facilitate the robbery prior to or during the
commission of the robbery. [¶] If a human being is killed by any one of
several persons engaged in the commission or attempted commission of the
crime of robbery or burglary, all persons who either directly or actively
commit the act constituting such crimes, or with knowledge of the unlawful
purpose of the perpetrator of the crimes, and with the intent or purpose of
committing, encouraging or facilitating the commission of the offenses, aids,
promotes, encourages or instigates by act or advice its commission, are guilty
of murder of the first degree whether the killing is intentional, unintentional,
or accidental. [¶] If you find the defendant in this case guilty of murder of the
first degree, you must determine if one or more of the [alleged] special
circumstances are true or not true.’ ” (Mendoza, supra, 23 Cal.4th at pp. 904–
905.)
“The jury found Valle ‘guilty of the offense charged in Count I, a felony,
to wit, murder in violation of Section 187(a) . . . .’ It also found him guilty of
second degree robbery and burglary, and found true the special
circumstances allegations that he had committed the murder while
committing robbery and burglary. . . . At the penalty phase of the trial, the
jury found that Valle’s penalty should be life in prison without possibility of
parole, rather than death. The trial court subsequently entered a judgment
against Valle for first degree murder and sentenced him in accordance with
the jury’s finding. The Court of Appeal affirmed the judgment,” as did our
Supreme Court. (Mendoza, supra, 23 Cal.4th at p. 907.)

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B. Postconviction Legal Changes.
1. Banks, Clark and Their Progeny.
The special circumstance statute, “[s]ection 190.2, subdivision (d)[,]
states in relevant part that ‘every 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.’ By its terms, subdivision (d) ‘imposes both a special
actus reus requirement, major participation in the crime, and a specific
mens rea requirement, reckless indifference to human life.’ (Banks, supra, 61
Cal.4th at pp. 798–799.)” (In re Moore (2021) 68 Cal.App.5th 434, 446
(Moore).)
In 2015, the California Supreme Court in Banks considered when a
defendant’s participation in a felony murder could be deemed “major” for
purposes of section 190.2, subdivision (d), identifying the following factors as
relevant: (1) the defendant’s role in planning the criminal enterprise that led
to one or more deaths; (2) his or her role in supplying or using lethal
weapons; (3) whether he or she was aware of particular dangers posed by the
nature of the crime, weapons used, or past experience or conduct of the other
participants; (4) whether the defendant was present at the scene of the
killing; (5) whether he or she was in a position to facilitate or prevent the
actual murder; (6) whether his or her own actions or inaction play a
particular role in the death; and (7) the defendant’s response to the use of

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lethal force. (Banks, supra, 61 Cal.4th at p. 803.) The court counseled, “No
one of these considerations is necessary, nor is any one of them necessarily
sufficient. All may be weighed in determining the ultimate question, 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].” (Ibid.)
In Clark, supra, in 2016, the court focused on whether a defendant
could be found to have acted with “ ‘reckless indifference to human life,’ ” a
term possessing an objective and a subjective component. As to the
subjective component, 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.” (63
Cal.4th at p. 617.) As to the objective component, “ ‘[t]he risk [of death] must
be of such a nature and degree that, considering the nature and purpose of
the actor’s conduct and the circumstances known to him [or her], its
disregard involves a gross deviation from the standard of conduct that a law-
abiding person would observe in the actor’s situation.’ ” (Ibid., quoting Model
Pen. Code, § 2.02, subd. (2)(c).) Thus, in considering whether a defendant
acted with reckless indifference, the court found the following factors
relevant (many of which overlap with the Banks factors): (1) whether the
defendant used a weapon or knew a weapon would be used during the felony;
(2) how many weapons were used; (3) whether the defendant was physically
present at the scene; (4) whether the defendant had the opportunity to
restrain the crime or aid the victim; (5) the duration of the interaction
between the perpetrators of the felony and the victims; (6) whether the
defendant knew his or her confederate’s propensity for violence or likelihood
of using lethal force; and (7) what efforts, if any, the defendant made to

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minimize the risks of violence during the felony. (Clark, supra, at pp. 618–
623.) As before, “ ‘[n]o one of these considerations is necessary, nor is any one
of them necessarily sufficient.’ ” (Id. at p. 618, quoting Banks, supra, 61
Cal.4th at p. 803.)
A recent California Supreme Court decision addressed the
postconviction relief available to a defendant, such as ours, convicted of
special circumstance felony murder before Banks/Clark. “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 . . . .’ ” (In re Scroggins (2020) 9 Cal.5th 667, 673–674.) If there is
no material dispute as to the facts underlying the conviction and it appears
the statute under which the defendant was convicted did not prohibit his or
her conduct, he or she may be entitled to postconviction relief. (Id. at p. 674.)
2. Sen. Bill 1437.
In 2018, the Legislature enacted Sen. Bill 1437 to amend sections 188
and 189 to restrict murder liability based on felony murder or natural and
probable consequences theories. (Stats. 2018, ch. 1015, §§ 1–3.) Sen. Bill
1437 also added section 1170.95 (Stats. 2018, ch. 1015, § 4), under which a
person convicted of felony murder or murder under a natural and probable
consequences theory is eligible to have his or her murder conviction vacated
and to be resentenced on any remaining counts if the following conditions are
met: “(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony

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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.
[¶] (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).)
C. Defendant’s Petition for Resentencing (§ 1170.95).
Defendant filed a petition under section 1170.95 on January 3, 2020.
The petition included a declaration asserting that he was convicted of first
degree murder under the felony murder rule or the natural and probable
consequences doctrine and could not be convicted of first degree murder
under the newly amended version of section 188 or 189.
On January 29, 2020, counsel was appointed to represent defendant for
purposes of his petition. On July 17, 2020, defendant’s appointed counsel
filed an amended petition for resentencing, the operative petition on appeal.
This petition included a declaration from counsel clarifying that defendant
could not be convicted of murder under the newly amended versions of
sections 188 and 189 because he was not the actual killer; did not, with the
intent to kill, aid, abet, counsel, command, solicit, request, or assist the
actual killer in the commission of murder; and was not a major participant
who acted with reckless indifference to human life during the course of the
felonies of robbery and burglary.
On February 11, 2021, the trial court heard argument from counsel
before denying defendant’s petition. The trial court found defendant failed to
establish a prima facie case of entitlement to relief under section 1170.95,

9
subdivision (c) due to the jury’s true finding on the felony murder special
circumstance. This timely appeal followed.
DISCUSSION
Defendant contends the trial court erred when ruling as a matter of law
that a jury’s felony-murder special-circumstance finding precludes relief
under section 1170.95, subdivision (c). The following legal framework is not
in dispute.
“The determination of prima facie entitlement to relief dictates whether
an order to show cause issues and an evidentiary hearing is set. On this
point, section 1170.95, subdivision (c) is phrased in mandatory terms.
(§ 1170.95, subd. (c) [‘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.’ (italics
added)].) At the evidentiary hearing, either party may present new or
additional evidence probative of whether the petitioner may be validly
convicted of murder under current law, and the prosecution bears the burden
of proof under a reasonable doubt standard. (§ 1170.95, subd. (d)(3).)”
(Secrease, supra, 63 Cal.App.5th at p. 243, review granted.)
“While the trial court may look at the record of conviction after the
appointment of counsel to determine whether a petitioner has made a
prima facie case for section 1170.95 relief, the prima facie inquiry under
subdivision (c) is limited. Like the analogous prima facie inquiry in
habeas corpus proceedings, ‘ “the court takes petitioner’s factual allegations
as true and makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual allegations were
proved. If so, the court must issue an order to show cause.” ’ [Citation.] ‘[A]
court should not reject the petitioner’s factual allegations on credibility
grounds without first conducting an evidentiary hearing.’ [Citation.]

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‘However, if the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is justified in
making a credibility determination adverse to the petitioner.” ’ [Citation.]”
(People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).)
“Appellate opinions . . . are generally considered to be part of the record
of conviction. [Citation.] However, . . . the probative value of an appellate
opinion is case specific, and ‘it is certainly correct that an appellate opinion
might not supply all answers.’ [Citation.] In reviewing any part of the record
of conviction at this preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of discretion.’
. . . [T]he ‘prima facie bar was intentionally and correctly set very low.’ ”
(Lewis, supra, 11 Cal.5th at p. 972.)
On appeal, “[b]ecause we are tasked with applying the section 1170.95,
subdivision (c) governing prima facie entitlement to relief [citation], our
review is de novo. [Citation.] As with any case involving statutory
interpretation, our primary goal is to ascertain and effectuate the lawmakers’
intent.” (Secrease, supra, 63 Cal.App.5th at p. 244, review granted.)
I. A pre-Banks/Clark special circumstance finding does not
automatically bar a defendant from obtaining section 1170.95
resentencing relief.
The People’s primary argument is twofold. The People argue the legal
issue whether a pre-Banks/Clark special circumstance finding is supported
by sufficient evidence must be raised in a petition for writ of habeas corpus,
with the defendant bearing the burden of proof (In re Scoggins, supra, 9
Cal.5th at pp. 673–674), rather than in a section 1170.95 petition.
Additionally, the People point to the fact that section 189, as amended,
authorizes a defendant who was not the actual killer to be convicted of felony
murder under the same circumstances delineated in section 190.2—to wit,

11
when the defendant “was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in subdivision (d)
of Section 190.2” (§ 189, subd. (e)(3)).4 Here, the jury was instructed that to
find the special circumstance true under section 190.2, subdivision (a)(17), it
had to find that defendant was the actual killer, that he aided and abetted
the murder with the intent to kill, or that he aided and abetted the robbery-
burglary that led to the victim’s death while acting as a major participant
with reckless indifference to human life. The People thus argue that the
jury’s special circumstance finding establishes as a matter of law that
defendant could still be convicted of felony murder under the new version of
section 189, which precludes him from making a prima facie case under
section 1170.95, subdivision (c).
Several courts have adopted the People’s reasoning, and the issue is
presently pending before the California Supreme Court in People v. Strong,
review granted March 10, 2021, S266606. (See, e.g., People v. Galvan (2020)
52 Cal.App.5th 1134, 1141–1144, review granted Oct. 14, 2020, S264284
[remedy of habeas corpus must be sought in the first instance, as it is not the
changes to §§ 188 & 189 that potentially render a defendant’s murder
conviction invalid under current law but, rather, the Banks and Clark
decisions]; People v. Murillo (2020) 54 Cal.App.5th 160, 168–169, review
granted Nov. 18, 2020, S264978; People v. Gomez (2020) 52 Cal.App.5th 1,
13–15, review granted Oct. 14, 2020, S264033.)
Other courts, including our First Appellate District, Division Four
colleagues in Secrease, have disagreed with this reasoning. These courts hold

4 Section 189, subdivision (e)(3) provides in relevant part that to be
liable for felony murder, a defendant must be “a major participant in the
underlying felony [who] acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.”

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that a pre-Banks/Clark special circumstance finding does not by itself defeat
a defendant’s prima facie showing under section 1170.95, even if the
defendant has not collaterally attacked the finding by habeas corpus. (See,
e.g., Secrease, supra, 63 Cal.App.5th at pp. 254–256, review granted; People v.
Arias (2021) 66 Cal.App.5th 987, 1004 [“we are persuaded by the logic of the
courts that have concluded pre-Banks and Clark felony-murder special-
circumstance findings do not categorically preclude defendants from
obtaining resentencing relief under section 1170.95”], review granted
Sept. 29, 2021, S270555; People v. Torres (2020) 46 Cal.App.5th 1168, 1179–
1180, review granted June 24, 2020, S262011 (Torres).)
“Other courts do not impose a requirement that a section 1170.95
petitioner who seeks resentencing in the face of a prior jury finding under
section 190.2, subdivision (a)(17) must first obtain habeas corpus relief, and
hold that he may opt to pursue relief by attacking his murder conviction—not
his special circumstance finding—on the ground that, under current law as
revised by Senate Bill 1437, he could no longer be convicted of murder.
(Torres, supra, 46 Cal.App.5th at pp. 1179–1180, review granted; [People v.]
Smith [(2020)] 49 Cal.App.5th [85,] 93–94, review granted [July 22, 2020,
S262835]; [People v.] York [(2020)] 54 Cal.App.5th [250,] 259–261, review
granted [Nov. 18, 2020, S264954]; [People v.] Harris [(2021)] 60 Cal.App.5th
[939,] 956–958[, review granted Apr. 28, 2021, S267802].) According to these
courts, if the petitioner obtains vacatur of a prior special circumstance
finding in a section 1170.95 proceeding, that is because the statute expressly
requires it as a ‘collateral consequence’ of the resentencing relief to which a
successful section 1170.95 petitioner is entitled. (York, supra, 54 Cal.App.5th
at p. 260, review granted.) [¶] These courts see no basis to graft what is, in
effect, an exhaustion requirement onto section 1170.95, thereby forcing

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petitioners with felony-murder special-circumstances findings to obtain
habeas corpus relief first, before seeking section 1170.95 resentencing. In
their view, because Banks and Clark ‘construed section 190.2, subdivision (d)
in a significantly different, and narrower manner than courts had previously
construed the statute’ (Torres, supra, 46 Cal.App.5th at p. 1179, review
granted), it is not appropriate to give a pre-Banks and Clark felony-murder
special-circumstance finding preclusive effect.” (Secrease, supra, 63
Cal.App.5th at pp. 253–254, review granted.)
Agreeing with this line of cases, the Secrease court concluded that,
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. Because we must presume the
Legislature knows and acts against the backdrop of existing case law
[citations], the language of section 189, subdivision (e)(3) as enacted by the
Legislature in 2018 necessarily carries the meaning announced in Banks and
Clark, since both cases were on the books when Senate Bill 1437 was passed
and signed by the Governor.” (Secrease, supra, 63 Cal.App.5th at p. 254,
review granted; see York, supra, 54 Cal.App.5th at p. 261, review granted
[“What 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 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”].)
Thus, “[i]f the factual findings underlying a jury’s felony-murder
special-circumstance determination are legally insufficient under Banks and
Clark, we do not see how those findings can conclusively refute a prima facie

14
showing of entitlement to resentencing relief. Because the changes made to
section 189 prevent a defendant from being convicted of murder solely for his
participation in the 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 [the defendant’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 [the defendant] is entitled to have it made in a section
1170.95 proceeding—under current law.” (Secrease, supra, 63 Cal.App.5th at
p. 256, review granted.)
Mindful that this issue will soon be decided by the California Supreme
Court (see People v. Strong, supra, S266606), we endorse the position just set
forth, and hold in line with Secrease, Torres, York, Arias and others5 that
(1) a pre-Banks/Clark special circumstance finding is not a categorical bar to
section 1170.95 relief and (2) a defendant may challenge a jury’s special
circumstance finding under Banks/Clark when petitioning for section 1170.95
relief even if he or she has not first done so by habeas corpus. (See In re
Scroggins, supra, 9 Cal.5th at pp. 673–674 [“ ‘habeas corpus or other
appropriate extraordinary remedy will lie to rectify [Banks/Clark] error’ ”
(italics added)].)
II. While an appellate court could in the first instance decide
whether a felony-murder special-circumstance finding remains
valid under current California law, we lack a sufficient record
to do so here.
In this case, at the prosecutor’s request, the trial court took judicial
notice of the following documents: (1) a copy of the opinion in People v.

In the name of judicial efficiency, we adopt and incorporate herein the
5

more detailed analyses on this issue set forth by these appellate courts.

15
Mendoza, supra, 23 Cal.4th 896; (2) CALJIC No. 8.80.1, the special
circumstance instruction read to the jury in this case; (3) pages 14431–14433
of the reporter’s transcript from the trial proceeding in which the jury was
instructed on felony murder and special circumstance felony murder; (4) the
signed verdict forms in this case; and (5) CALCRIM No. 540B as revised in
April 2020, incorporating the new language added to section 189 by Sen. Bill
1437.
This record reflects that the jury was instructed for purposes of the
special circumstances allegations, “A defendant acts with reckless
indifference to human life when such defendant knew or was aware that his
acts involved an extreme likelihood that such acts could result in the death of
an innocent human being.” 6 No definition of “major participant” was given.
The only judicially noticed document containing a description of the
underlying facts of this case is the Mendoza opinion. As the respondent’s
brief readily admits, the Mendoza court considered only the legal issue of the

6Specifically, the jury was instructed in relevant part: “If you are
satisfied beyond a reasonable doubt that the defendant actually killed a
human being, you need not find that the defendant intended to kill in order
to find the special circumstance to be true.
“If you find that the defendant was not the actual killer of a human
being, or if you are unable to decide whether defendant was the actual killer
or an aider and abettor, you cannot find the special circumstance to be true
unless you are satisfied beyond a reasonable doubt that such defendant, 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 or burglary at The Lord’s
Church which resulted in the death of a human being, namely Dan Elledge.
“A defendant acts with reckless indifference to human life when such
defendant knew or was aware that his acts involved an extreme likelihood
that such acts could result in the death of an innocent human being.”

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proper construction of section 1158, a provision requiring the jury to find the
degree of the crime when finding a defendant guilty of a crime that is
distinguished into degrees. (See Mendoza, supra, 23 Cal.4th at p. 907.) As
such, Mendoza lacks a detailed statement of facts, leaving us unable to assess
the degree of defendant’s participation in or mental state during the felony
murder. Defense counsel apparently argued that codefendant Mendoza fired
the fatal gunshots and that defendant “lacked the mental state a mere
participant must have for a true finding on the special circumstances
allegations.” However, the only evidence referenced in Mendoza that
supports these arguments was evidence that defendant suffered from
posttraumatic stress syndrome relating to prior combat experience in
El Salvador. (Mendoza, supra, 23 Cal.4th at p. 904.)
Accordingly, we must remand this matter to the trial court: (1) to
determine in the first instance whether there is sufficient evidence to uphold
the jury’s special circumstance findings under the Banks/Clark standard;
and (2) if there is not such evidence, to conduct a prima facie review of
defendant’s petition for resentencing in accordance with section 1170.95,
subdivision (c) (as amended effective January 1, 2022).7
DISPOSITION
The trial court’s summary denial of defendant’s petition for
resentencing under section 1170.95 is reversed, and the matter is remanded
for further proceedings consistent with this opinion.

7 See footnote 2, ante, p. 2.

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 _________________________
Jackson, P. J.

WE CONCUR:

_________________________
Simons, J.

_________________________
Burns, J.

A162298/People v. Raul Antonio Valle

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