People v. Nunez-Sharp CA2/4

Filed 12/23/21 P. v. Nunez-Sharp CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B308390

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA397214)
v.

DIEGO NUNEZ-SHARP,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Stephen A. Marcus, Judge. Reversed
and remanded with directions.
Waldemar D. Halka, under appointment by the Court
of Appeal, for Defendant and Appellant.
 Rob A. Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Idan Ivri and Michael R.
Johnsen, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________________________

INTRODUCTION
Appellant Diego Nunez-Sharp appeals from the denial
of his petition for resentencing under Penal Code section
1170.95 (Section 1170.95). In 2015, a jury convicted
appellant and a codefendant of one count of first degree
murder, and found true an allegation that the murder was
committed in the commission of a robbery, requiring findings
that appellant was at least a major participant in the
robbery and acted with reckless indifference to human life
within the meaning of Penal Code section 190.2, subdivision
(d) (the special circumstance statute). During the pendency
of appellant’s direct appeal, our Supreme Court clarified the
meaning of the special circumstance statute in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark). After Banks and Clark were
issued, we affirmed the judgment in an unpublished opinion.
(People v. Nunez-Sharp (Mar. 15, 2017, B264843) 2017
Cal.App.Unpub. LEXIS 1787 (Nunez-Sharp).) We held that
the special circumstance finding was supported by
substantial evidence that appellant was a major participant

2
in the robbery and acted with reckless indifference to human
life under Banks. (Id. at *55-*58.)
After the enactment of Senate Bill No. 1437 (2017-2018
Reg. Sess.) (SB 1437), which narrowed the felony murder
rule by requiring findings that the defendant was at least a
major participant in the underlying felony and acted with
reckless indifference to human life, appellant filed in the
trial court a petition for resentencing under Section 1170.95
and a petition for a writ of habeas corpus. In his Section
1170.95 petition, he sought relief from his murder conviction
on the ground that he could not be convicted after SB 1437’s
changes to the law. In his habeas petition, he sought relief
from the jury’s pre-Banks special circumstance finding on
the ground of insufficient evidence under Banks and Clark.
The trial court appointed counsel to represent him in the
Section 1170.95 proceedings. Appellant filed a motion for
substitution of counsel, but counsel never brought the
motion to the court’s attention, and the court did not address
it.
The court denied appellant’s Section 1170.95 petition
without issuing an order to show cause. The court concluded
that although relief was not precluded as a matter of law by
the jury’s pre-Banks special circumstance finding, relief was
precluded by our prior opinion’s holding that the jury’s
finding was supported by substantial evidence under Banks.
As an alternative ground for summarily denying the petition,
the court independently reviewed the trial evidence,
concluding either that appellant was a major participant in

3
the robbery and acted with reckless indifference to human
life under Banks and Clark, or that there was substantial
evidence to support such findings. The court also summarily
denied appellant’s habeas petition, concluding his
sufficiency-of-the-evidence claim was procedurally barred
because we had rejected an identical claim on direct appeal,
and further concluding the claim was meritless based on the
court’s independent finding of substantial evidence under
Banks and Clark.
On appeal from the order denying his Section 1170.95
petition, appellant contends the court prejudicially erred by:
(1) failing to consider his motion for substitution of counsel;
and (2) denying his Section 1170.95 petition without issuing
an order to show cause, in reliance on our prior opinion and
the court’s independent review of the trial evidence. The
Attorney General disagrees, and contends that remand is
futile because the court’s denial of appellant’s Banks/Clark
claim on habeas review will preclude relief under Section
1170.95.
We conclude the trial court erred in denying
appellant’s Section 1170.95 petition without issuing an order
to show cause. We agree with the trial court’s conclusion
that relief is not precluded as a matter of law by the jury’s
pre-Banks special circumstance finding. However, we
disagree with the court’s conclusion that relief is precluded
by our prior opinion’s analysis of the sufficiency of the
evidence supporting the jury’s finding. Our opinion held
only that the jury reasonably could have found that

4
appellant engaged in conduct prohibited by the special
circumstances statute as construed in Banks, not that the
jury necessarily did so. Thus, our opinion does not preclude
a finding by the trial court after an evidentiary hearing -- at
which appellant might offer new or additional evidence --
that the prosecution has failed to prove beyond a reasonable
doubt that appellant was a major participant in the robbery
and acted with reckless indifference to human life under
Banks and Clark. Because nothing in the record refuted
appellant’s allegations as a matter of law, the court was
required at the prima facie stage to accept as true his
allegations that he was not guilty under any still-valid
theory of murder, and to issue an order to show cause. We
disagree with the Attorney General’s contention that remand
is futile. Accordingly, we reverse the order denying
appellant’s petition for resentencing, and remand the matter
to the trial court with directions to issue an order to show
cause and proceed in accordance with Section 1170.95.
Mindful that appellant’s statutory right to counsel will be
constitutionally protected after issuance of the order to show
cause (see People v. Lewis (2021) 11 Cal.5th 952, 973 (Lewis)),
we additionally direct the court to consider the merits of
appellant’s motion for substitution of counsel.

5
 BACKGROUND
A. Underlying Judgment
1. Prosecution Case
Appellant and his codefendant, Jonathan Lopez-Jaime,
were jointly tried before separate juries on one count of
murder (Pen. Code, § 187, subd. (a)), with a special
circumstance allegation that the murder was committed
during the commission of a robbery (id., § 190.2, subd.
(a)(17)). (Nunez-Sharp, supra, 2017 Cal.App.Unpub. LEXIS
1787, at *2.)

a. Investigation
On the evening of November 1, 2009, a neighbor of
victim Nolberto Gutierrez heard voices outside Gutierrez’s
Hollywood apartment, followed 40 minutes later by what
sounded like a body being thrust into Gutierrez’s wall and
some moaning, after which a radio in Gutierrez’s apartment
was left on for two days. (Nunez-Sharp, supra, 2017
Cal.App.Unpub. LEXIS 1787, at *2.) The neighbor’s
complaint about the radio prompted the discovery of
Gutierrez’s body, which was lying face-down on the floor of
his apartment, naked and bearing his own sperm. (Id. at *2,
*23.) A ligature (a pillowcase apparently taken from
Gutierrez’s bed) was knotted around Gutierrez’s neck, and
his hands were tied behind his back with the cord from an
iron. (Id. at *2-*3.) An autopsy showed the cause of death
was “[a]sphyxia due to ligature strangulation.” (Id. at *3.)

6
 Surveillance video from a liquor store near Gutierrez’s
apartment showed that on the evening of Gutierrez’s death,
Gutierrez visited the store with appellant and Lopez-Jaime.
(Nunez-Sharp, supra, 2017 Cal.App.Unpub. LEXIS 1787, at
*3-*4, *7-*8.) Gutierrez was wearing a necklace in the store,
but neither the necklace nor any other jewelry was found in
his apartment after his death. (Id. at *3.)

b. Appellant’s Interview
Detectives conducted a videotaped interview of appellant
(in Spanish), which was played for his jury. (Nunez-Sharp,
supra, 2017 Cal.App.Unpub. LEXIS 1787, at *4-*5.)
Appellant admitted that on the evening of Gutierrez’s death,
he accompanied Lopez-Jaime and Gutierrez to Gutierrez’s
apartment, claiming he did so on the suggestion of Lopez-
Jaime, who intended to have sex with Gutierrez. (Id. at *9.)
After they arrived at the apartment, Lopez-Jaime said to
appellant, “let’s rob him.” (Ibid.) Lopez-Jaime also told
appellant that Gutierrez wanted to have sex with both of
them in exchange for paying each of them $500. (Ibid.)
Appellant joined Lopez-Jaime in taking off Gutierrez’s
clothes and starting to touch him. (See ibid.)
Lopez-Jaime gave appellant a signal to hit Gutierrez
and rob him. (Nunez-Sharp, supra, 2017 Cal.App.Unpub.
LEXIS 1787, at *9.) Lopez-Jaime hit Gutierrez, and told
appellant to put Gutierrez’s hands behind his back. (Ibid.)
Appellant held Gutierrez from behind while Lopez-Jaime
was hitting him. (Id. at *9-*10.) Appellant told the

7
detectives, “I hit him also.” (Id. at *10.) Lopez-Jaime put a
pillow on Gutierrez’s face, but appellant objected, and either
he or Lopez-Jaime removed the pillow. (Id. at *10-*12.)
After Gutierrez fell to the ground, appellant tied Gutierrez’s
hands behind his back with the cord from an iron. (Id. at
*11-*12.) Lopez-Jaime took Gutierrez’s cell phone and some
jewelry from the apartment, and continued hitting Gutierrez.
(Id. at *11.) Appellant took a piece of chain jewelry. (Id. at
*11.)
Appellant denied choking Gutierrez with a pillowcase
and denied seeing Lopez-Jaime choking him. (Nunez-Sharp,
supra, 2017 Cal.App.Unpub. LEXIS 1787, at *12-*13.)
Appellant stated that when he left the apartment (shortly
before Lopez-Jaime did), Gutierrez was alive. (Id. at *11.)
At the conclusion of his interview, pursuant to a
detective’s instructions, appellant made a recorded phone
call to Lopez-Jaime. (Nunez-Sharp, supra, 2017
Cal.App.Unpub. LEXIS 1787, at *14.) A redacted version of
the recording was played for appellant’s jury. (Ibid.)
Appellant told Jaime-Lopez he was worried the police were
after him for the “thing we did with . . . that man from
Hollywood” (Gutierrez) and asked whether Lopez-Jaime
continued hitting Gutierrez after he was on the ground. (Id.
at *14-*15.) Lopez-Jaime said no, and indicated he believed
Gutierrez had not died because had he died, his death would
have been reported in the news. (Id. at *15.) When
appellant asked if Gutierrez died when Lopez-Jaime “put the

8
sheet on his neck,” Lopez-Jaime replied, “No, he didn’t die.”
(Id. at *15-*16.)

2. Defense Case
Through court-appointed Spanish interpreters,
appellant testified to the following events on November 1,
2009. (Nunez-Sharp, supra, 2017 Cal.App.Unpub. LEXIS
1787, at *28, *32-*33, *48.) He accepted an offer from
Gutierrez and Lopez-Jaime to dance and have sex at
Gutierrez’s apartment in exchange for $500. (Id. at *28.)
While in Gutierrez’s bathroom, he took a chain that was on
top of the toilet. (Ibid.) When he came out of the bathroom,
Gutierrez was nearly naked, and his hands were tied behind
his back with a pillowcase. (Id. at *28-*29.) At Gutierrez’s
invitation, appellant began touching Gutierrez’s chest and
stomach. (Id. at *29.) After the pillowcase came off
Gutierrez’s wrists, Gutierrez asked appellant to put the
pillowcase back on, and to tie his hands with the cord from
an iron; appellant obliged by wrapping the pillowcase and
cord around Gutierrez’s hands, but did not tie a knot. (Ibid.)
Lopez-Jaime hit Gutierrez several times.
(Nunez-Sharp, supra, 2017 Cal.App.Unpub. LEXIS 1787, at
*29.) In appellant’s view, it “didn’t appear that [Gutierrez]
was angry at that or he felt pain.” (Id. at *30.) Appellant hit
Lopez-Jaime, and Lopez-Jaime hit him back. (Id. at *29.)
Appellant decided to leave because he was confused whether
the hitting was “real” or a sexual activity. (Ibid.) When he
left the apartment (at least 10 minutes before Lopez-Jaime

9
left), Gutierrez was on the floor, but he was alive and there
was no ligature around his neck. (Id. at *29-*30.)

3. Verdicts
The jury was instructed on a felony murder theory, on
which the prosecutor relied in closing argument.
(Nunez-Sharp, supra, 2017 Cal.App.Unpub. LEXIS 1787, at
*36-*38.) The prosecutor urged the jury to find true the
robbery-murder special circumstance allegation on the basis
of a finding either that appellant was the actual killer -- he
tied the pillowcase around Gutierrez’s neck -- or that
appellant was a major participant in a robbery resulting in
Gutierrez’s death and acted with reckless indifference to
human life. (Id. at *39.) Appellant’s counsel argued he
neither robbed nor killed Gutierrez. (See ibid.)
The jury convicted appellant and Lopez-Jaime of first
degree murder, and found true the robbery-murder special
circumstance allegation. (Nunez-Sharp, supra, 2017
Cal.App.Unpub. LEXIS 1787, at *44.) Appellant was
sentenced to life imprisonment without the possibility of
parole. (Id. at *1.)

4. Our Prior Opinion
On appellant’s and Lopez-Jaime’s direct appeals, we
affirmed the judgment. (Nunez-Sharp, supra, 2017
Cal.App.Unpub. LEXIS 1787, at *1-*2, *64.) As relevant
here, we rejected their challenge to the sufficiency of the
evidence to support the robbery-murder special circumstance

10
finding. (Id. at *55-*58.) Citing our Supreme Court’s then-
recent decision in Banks (without citing its even more recent
decision in Clark), we acknowledged that the substantial
evidence standard of review required us to view the evidence
in the light most favorable to the prosecution, and to
determine whether a reasonable jury “could” find the
prosecution had proved the elements of the special
circumstance allegation beyond a reasonable doubt. (Id. at
*55-*56, citing Banks, supra, 61 Cal.4th at 798.) We held
“there was substantial evidence that both appellants were
major participants in the underlying felony -- robbery of
Gutierrez -- and acted with reckless indifference to human
life.” (Nunez-Sharp, at *56.) With respect to appellant, we
stated, “He was told before going to the victim’s apartment
that there was going to be a robbery. While at the
apartment, he was told to look for the victim’s jewelry while
Lopez-Ja[i]m[]e held the victim. When given a signal by
Lopez-Jaime, [appellant] Nunez-Sharp hit the victim.
Nunez-Sharp admitted that he tied the victim’s hands
behind his back. He also admitted that he removed the
victim’s chain from his neck. When Nunez-Sharp left the
apartment, the victim was unconscious, bound, naked, and
lying face down on the floor with a ligature around his neck.”
(Id. at *57.) We concluded, “Regardless of which appellant
was the actual killer, they each met the requirements of the
special circumstance statute. Because their actions far
surpassed those of a mere getaway driver, appellants’

11
reliance on Banks, supra, 61 Cal.4th at pages 807-811 is
misplaced.”1 (Nunez-Sharp, at *57.)

B. Postconviction Proceedings
In June 2019, appellant filed a habeas petition in the
trial court, seeking relief from the robbery-murder special
circumstance finding on the ground of insufficient evidence
under Banks and Clark. In August 2019, appellant filed a
petition for resentencing under Section 1170.95. By
checking boxes on a preprinted form (which did not mention
a petitioner’s right to offer new or additional evidence at an
evidentiary hearing), appellant requested the appointment
of counsel, and alleged he could not presently be convicted of
murder because: (1) he was not the actual killer; (2) he did
not act with the intent to kill as an aider and abettor; and (3)
he was not a major participant in the underlying felony, or
he did not act with reckless indifference to human life. The
court appointed the Los Angeles County Public Defender’s

1
In Banks, our Supreme Court held that because the record
before it established that the defendant was no more than a
getaway driver in the underlying robbery, there was insufficient
evidence to support a finding that the defendant was a major
participant. (Banks, supra, 61 Cal.4th at 794, 804-807; see also
id. at 807-811 [separately holding there was insufficient evidence
defendant acted with reckless indifference to human life].)

12
Office, which assigned deputy public defender Vernon
Patterson (appellant’s trial counsel).2

1. Motions and Briefing
In January 2020, appellant filed a motion for
substitution of counsel. Alleging that Patterson had
rendered ineffective assistance at trial and, as a result of an
irreconcilable conflict, was certain to render ineffective
assistance in the Section 1170.95 proceedings, appellant
asked the court to replace Patterson with a “competent and
[Spanish-]bilingual” attorney.
Later in January 2020, the prosecution opposed
appellant’s Section 1170.95 petition, arguing he was
ineligible for resentencing because he could still be convicted
of murder as a major participant in the robbery who acted
with reckless indifference to human life. The prosecution
further argued that because our prior opinion “already
evaluated Defendant’s conduct in light of Banks, the issue is
res judicata.” On order of the court, the prosecution also
filed an informal response to appellant’s habeas petition,
arguing the trial record contained substantial evidence to
support the robbery-murder special circumstance finding
under Banks and Clark.
On July 5, 2020, appellant filed a motion “to compel
appointed counsel (Vernon Patterson) to perform his duty to

2
Patterson did not represent appellant in connection with
his habeas petition.

13
inform petitioner of the prior proceedings of his Penal Code
§ [1170.95] resentencing hearings and briefings, as well as
his upcom[]ing hearings and briefings pertaining to this
matter.” Appellant alleged that Patterson had neither sent
appellant a copy of the prosecutor’s opposition (filed months
earlier), nor informed appellant of the arguments that the
prosecution had made and that Patterson might make on his
behalf in reply.
Five days later (on July 10, 2020), Patterson filed a
reply to the prosecution’s opposition on appellant’s behalf.
The reply brief argued that neither the jury’s special
circumstance finding nor our prior opinion’s affirmance of
that finding rendered appellant ineligible for relief as a
matter of law, as the jury had made its finding before Banks
and Clark clarified the applicable standards, and our prior
opinion had reviewed the trial evidence in the light most
favorable to the judgment.

2. Hearing and Rulings
In July and August 2020, the court continued the
proceedings on appellant’s Section 1170.95 petition, and
expressed its views that: (1) the jury’s pre-Banks special
circumstance finding did not render appellant ineligible for
relief under Section 1170.95 as a matter of law; and (2) the
court’s impending ruling on appellant’s habeas petition
would not be “controlling” with respect to its ruling on his
Section 1170.95 petition “because they’re [subject to]
different standards.” Appellant’s motions regarding

14
attorney Patterson were not brought to the court’s attention
by counsel, and the court did not address them. Appellant
was never personally present before the court.
In September 2020, the court held a hearing on
appellant’s Section 1170.95 petition. Patterson argued
appellant did not act with reckless indifference to human life,
relying on appellant’s testimony that he protested Lopez-
Jaime’s hitting Gutierrez and left the apartment while
Gutierrez was still alive. The prosecutor argued the verdict
showed the jury did not believe appellant’s testimony. In a
thorough oral ruling, the court denied the petition. As its
“main” reason for concluding that appellant had failed to
make a prima facie showing of entitlement to relief, the
court concluded that under the doctrine of law of the case, it
was bound by our prior opinion’s perceived holding that
appellant was a major participant in the robbery and acted
with reckless indifference to human life under Banks. As an
alternative reason for summarily denying the petition, the
court reviewed the trial evidence and announced its
“independent opinion” and “finding” that appellant was a
major participant in the robbery and acted with reckless
indifference to human life under Banks and Clark.3

3
According to the Attorney General’s reading of the court’s
comments in reviewing the trial evidence, the court concluded
only that the record contained substantial evidence to support
the special circumstance finding. This reading is undermined by
the language quoted in the text, but supported by the court’s
statement that it was “not making a call on credibility.” We need
(Fn. is continued on the next page.)

15
 In October 2020, the court denied appellant’s habeas
petition. The court concluded that appellant was
“procedurally barred from raising his claim that the special
circumstance finding [must] be dismissed for insufficiency of
the evidence,” because our prior opinion had rejected an
identical claim after Banks and Clark were decided. As an
alternative reason for denying the petition, the court
reviewed the trial evidence and concluded, “This court finds
that [the] robbery[-murder] special circumstance allegation
against Petitioner was supported by substantial evidence
that he was the actual killer, or aided and abetted the
robbery murder with intent to kill[,] or was a major
participant in the robbery who acted with reckless
indifference to human life.”
Appellant timely appealed the order denying his
Section 1170.95 petition.

DISCUSSION
Appellant contends the court prejudicially erred by: (1)
failing to consider his motion for substitution of counsel; and
(2) denying his Section 1170.95 petition without issuing an
order to show cause, in reliance on our prior opinion and the
court’s independent review of the trial evidence. We agree

not resolve whether the court acted as an independent factfinder
or instead reviewed the record for substantial evidence, as we
conclude -- with the benefit of authority issued after the court
made its ruling -- that neither approach was proper at the prima
facie stage.

16
with the latter contention, and therefore decline to consider
the former.

A. Principles
Section 1170.95 permits a defendant who was
convicted of murder under a felony murder theory to petition
the sentencing court to have the conviction vacated and to be
resentenced on any remaining counts when, inter alia, the
petitioner could not be convicted of murder after SB 1437’s
changes to the law. (See § 1170.95, subd. (a)(3).) These
changes include the amendment of Penal Code section 189,
subdivision (e) to provide that a defendant is not guilty of
felony murder unless the defendant: (1) was the actual
killer; (2) acted with the intent to kill as an aider and
abettor; or (3) was a major participant in the underlying
felony and acted with reckless indifference to human life, as
described in the special circumstance statute. (See Pen.
Code, § 189, subd. (e); Stats. 2018, ch. 1015, § 3.) The special
circumstance statute’s meaning was clarified (well before the
enactment of SB 1437) in Banks and Clark, each of which
articulated factors bearing on whether a defendant was a
major participant in the underlying felony and acted with
reckless indifference to human life. (See Banks, supra, 61
Cal.4th at 803; Clark, supra, 63 Cal.4th at 618-623.) In a
recent case applying the Banks and Clark factors, our
Supreme Court emphasized that “[d]etermining a
defendant’s culpability under the special circumstances

17
statute requires a fact-intensive, individualized inquiry.” (In
re Scoggins (2020) 9 Cal.5th 667, 683.)
After ascertaining that a Section 1170.95 petition
contains certain required information, the court must
appoint counsel for the petitioner (where requested), allow
the parties to file briefs, and determine whether the
petitioner has made a prima facie showing of entitlement to
relief. (§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at
960-968.) “[A]t 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.’” (Lewis, supra, at 974, quoting People v. Drayton
(2020) 47 Cal.App.5th 965, 980 (Drayton); see also Drayton,
at 980 [an example of prohibited factfinding is “determining
whether the petitioner showed reckless indifference to
human life in the commission of the crime”].) This
prohibition against factfinding at the prima facie stage is
subject to a limited exception: “‘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.”’” (Lewis, at 971, quoting Drayton, at 979.)
“However, this authority to make [factual] determinations
without conducting an evidentiary hearing . . . is limited to
readily ascertainable facts from the record (such as the crime
of conviction) . . . .” (Drayton, at 980.) “[T]he ‘prima facie

18
bar was intentionally and correctly set very low.’” (Lewis, at
972.)
If the court determines the petitioner has made a
prima facie showing, it must issue an order to show cause.
(§ 1170.95, subd. (c).) If the parties do not thereafter
stipulate that the petitioner is entitled to relief, the court
must hold an evidentiary hearing, at which the prosecution
bears the burden to prove the petitioner’s ineligibility for
relief beyond a reasonable doubt. (§ 1170.95, subd. (d).)
“The prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens.” (Ibid.) In determining whether the
prosecution has proved the petitioner could be convicted
under a theory of murder that remains valid after SB 1437,
the court must independently find the petitioner guilty
under such a theory beyond a reasonable doubt. (See, e.g.,
People v. Fortman (2021) 64 Cal.App.5th 217, 225, review
granted July 21, 2021, S269228 [“the People must convince
the trial court, as an independent trier of fact, that the
petitioner is guilty of murder on a still-valid theory beyond a
reasonable doubt”].) A finding of substantial evidence does
not suffice.4 (See ibid.; People v. Lopez (2020) 56 Cal.App.5th
936, 949, review granted Feb. 10, 2021, S265974.)

4
After this appeal was fully briefed, the Governor approved
Senate Bill No. 775 (2021-2022 Reg. Sess.), effective January 1,
2022. (See Stats. 2021, ch. 551; Cal. Const., art. IV, § 8, subd.
(c)(2).) This bill amends Section 1170.95 by, inter alia, (1) adding
language rejecting the substantial evidence standard; (2) deleting
(Fn. is continued on the next page.)

19
 B. Analysis
We conclude the trial court erred in denying
appellant’s Section 1170.95 petition without issuing an order
to show cause. Appellant undisputedly was convicted under
a felony murder theory, and his petition alleged: (1) he was
not the actual killer; (2) he did not act with the intent to kill
as an aider and abettor; and (3) he was not a major
participant in the underlying felony, or he did not act with
reckless indifference to human life. If these allegations are
true, appellant could not be convicted of murder after SB
1437’s amendments to Penal Code section 189, subdivision
(e), and he is entitled to resentencing. (See § 1170.95, subd.
(a)(3); Stats. 2018, ch. 1015, § 3.) At the prima facie stage,
the court was not permitted to deem appellant’s allegations
untrue on the basis of its own “fact-intensive” review of the
evidence that appellant was a major participant in the
robbery and acted with reckless indifference to human life.
(In re Scoggins, supra, 9 Cal.5th at 683; see also Drayton,
supra, 47 Cal.App.5th at 982 [“the Banks test, which governs
the inquiry whether the defendant was a major participant
in a felony[,] necessarily requires the weighing of facts and
drawing inferences. [Citation.] The question whether [the

the language authorizing the parties to rely on the “record of
conviction”; and (3) adding a statement that the court may
consider “the procedural history of the case recited in any prior
appellate opinion.” (Stats. 2021, ch. 551, § 2.) We need not
consider the potential relevance of these amendments, as we find
reversible error under the law predating them.

20
defendant] acted with reckless indifference is a similarly
multifaceted inquiry. [Citation.] In making an assessment
of the [Section 1170.95] petitioner’s prima facie showing, the
trial court should not have evaluated and weighed the
evidence but instead should have accepted petitioner’s
asserted facts as true” (footnote omitted)]; People v. Montes
(2021) 71 Cal.App.5th 1001, 1008 [“The final ground on
which the trial court found appellant ineligible for relief was
because appellant ‘was a major participant who acted with
reckless disregard for human life.’ We believe this
constitutes inappropriate factfinding by the trial court at the
initial prima facie stage of this process”].) Instead, the court
was required to accept appellant’s allegations as true, and to
issue an order to show cause, unless readily ascertainable
facts from the record of conviction refuted his allegations as
a matter of law. (See Drayton, supra, at 980; Lewis, supra,
11 Cal.5th at 974.) Below, we conclude nothing in the record
of conviction did so.
As the trial court itself concluded, and contrary to the
Attorney General’s contention, the jury’s pre-Banks special
circumstance finding did not refute appellant’s allegations as
a matter of law. This issue, which has divided the Courts of
Appeal, is pending review in our Supreme Court.5 Pending

5
The Supreme Court has granted review in People v. Strong
(Dec. 18, 2020, C091162) [nonpub. opn.], review granted March
10, 2021, S266606, to resolve the following issue: “Does a
felony-murder special circumstance finding (Pen. Code, § 190.2,
subd. (a)(17)) made before [Banks] and [Clark] preclude a
(Fn. is continued on the next page.)

21
guidance from the Supreme Court, and consistent with our
prior decisions on this issue, we follow those cases holding
that “a pre-Banks and Clark special circumstance finding
cannot preclude eligibility for relief under . . . section
1170.95 as a matter of law, because the factual issues that
the jury was asked to resolve in a trial that occurred before
Banks and Clark were decided are not the same factual
issues our Supreme Court has since identified as
controlling.” (People v. York (2020) 54 Cal.App.5th 250, 258,
review granted Nov. 18, 2020, S264954; see also, e.g., People
v. Torres (2020) 46 Cal.App.5th 1168, 1179, review granted
Jun. 24, 2020, S262011.)
We further conclude that appellant’s allegations were
not refuted as a matter of law by our prior opinion’s analysis
of the sufficiency of the evidence supporting the special
circumstance finding. It is true that our opinion made
certain unequivocal statements about appellant’s conduct,
and about his conduct’s satisfaction of the standards
articulated in Banks. (See Nunez-Sharp, supra, 2017
Cal.App.Unpub. LEXIS 1787, at *57 [stating appellant “met
the requirements of the special circumstance statute” as
construed in Banks because, inter alia, he left Gutierrez
“with a ligature around his neck,” without mentioning

defendant from making a prima facie showing of eligibility for
relief under Penal Code section 1170.95?” (Issues Pending Before
the California Supreme Court in Criminal Cases (December 2021)
California Supreme Court [as of Dec. 23, 2021].)

22
appellant’s contrary claims that he left before any ligature
was applied to Gutierrez’s neck].) But those statements
reflected our presumption of all facts in support of the
judgment that the jury reasonably could have found, viewing
the evidence in the light most favorable to the prosecution.
(See id. at *55-*58; People v. Morales (2020) 10 Cal.5th 76,
88 [court applying substantial evidence standard
“‘“‘presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the
evidence’”’”].) We did not hold that the jury necessarily
found the facts as we stated them. (Cf. Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1008 [“In assessing how the
evidence reasonably could have been evaluated by the trier
of fact, an appellate court . . . must indulge reasonable
inferences that the trier of fact might have drawn from the
evidence” (italics added)]; id. at 1006 [“an appellate court
that gives appropriate deference to the trier of fact will not
be in a position to detect or correct some of [the trier’s
factual] errors”].) Nor did we find those facts ourselves. (See
People v. Rodriguez (1999) 20 Cal.4th 1, 12-14 [reversing one
Court of Appeal opinion, and disapproving another, for
engaging in “appellate factfinding” in reviewing convictions
for sufficient evidence].)
In light of the limited scope of our prior opinion’s
relevant holding, it was binding on the trial court only with
respect to the conclusion that the trial record contained
substantial evidence that appellant was a major participant
in the robbery and acted with reckless indifference to human

23
life under Banks. (See Investors Equity Life Holding Co. v.
Schmidt (2015) 233 Cal.App.4th 1363, 1377 [“‘As its name
suggests, the [law of the case] doctrine applies only to an
appellate court’s decision on a question of law; it does not
apply to questions of fact’”].) This conclusion did not
warrant denial of appellant’s petition, because -- as appellate
courts held after the trial court denied the petition in
September 2020 -- substantial evidence of guilt under a still-
valid theory of murder is insufficient to render a petitioner
ineligible for relief. (See, e.g., People v. Lopez, supra, 56
Cal.App.5th at 949, rev.gr. [noting in October 2020 that
“only one other court has weighed in on the nature of the
required showing of ineligibility at the [evidentiary] hearing
stage,” and disagreeing with that court’s holding that
substantial evidence was sufficient].) We conclude our prior
opinion did not prevent appellant from clearing the “‘very
low’” bar set by the Legislature at the prima facie stage.
(Lewis, supra, 11 Cal.5th at 972.) Because nothing in the
record of conviction rendered appellant ineligible for relief as
a matter of law, we conclude the trial court erred in denying
his petition without issuing an order to show cause.6

6
We are not persuaded by the Attorney General’s reliance on
the Court of Appeal’s opinion in People v. Lewis (2020) 43
Cal.App.5th 1128, rev’d and remanded 11 Cal.5th 952. The
judgment of the Court of Appeal was reversed by our Supreme
Court. (Lewis, supra, 11 Cal.5th at 975.) In any event, the Court
of Appeal’s analysis is inapplicable here, because it relied on a
prior appellate opinion that -- unlike our prior opinion --
(Fn. is continued on the next page.)

24
 C. Remand
In opposing reversal and remand, the Attorney General
does not dispute that appellant was prejudiced by the trial
court’s reliance on our prior opinion and its own review of
the evidence, absent which the court would have issued an
order to show cause and proceeded to an evidentiary hearing.
(See Lewis, supra, 11 Cal.5th at 974 [to show prejudice from
erroneous denial of request for counsel at prima facie stage,
petitioner must show reasonable probability that assistance
of counsel would have yielded more favorable result, i.e.,
that “‘“his [or her] petition would not have been summarily
denied without an evidentiary hearing”’”].) Instead, the
Attorney General argues remand is futile because the court’s
denial of appellant’s Banks/Clark claim on habeas review
will preclude him from obtaining relief under Section
1170.95 (implicitly, under the doctrine of issue preclusion).
We disagree that remand for an evidentiary hearing is
futile. Because the court denied the habeas petition
summarily (without issuing an order to show cause), its
ruling will not have preclusive effect in future proceedings.
(See People v. Torres, supra, 46 Cal.App.5th at 1180, fn. 4;

determined what the jury actually had found. (See People v.
Lewis, supra, 43 Cal.App.5th at 1138-1139 [prior appellate
opinion refuted Section 1170.95 petitioner’s allegation that he
was not direct aider and abettor, where prior opinion held that
record established jury convicted defendant as direct aider and
abettor, rendering instruction on invalid alternative theory
harmless beyond a reasonable doubt].)

25
Gomez v. Superior Court (2012) 54 Cal.4th 293, 305, fn. 6.)
Further, as the court recognized, its ruling on appellant’s
habeas petition is not “controlling” with respect to its ruling
on his Section 1170.95 petition “because they’re [subject to]
different standards.” (See DKN Holdings LLC v. Faerber
(2015) 61 Cal.4th 813, 825 [issue preclusion applies only
where “identical” issue was actually litigated and necessarily
decided in prior proceeding].) As the court reasoned in
deeming the habeas petition procedurally barred, the habeas
petition raised the same legal issue we resolved against
appellant on direct appeal, viz., whether the jury’s special
circumstance finding was supported by substantial evidence
in the trial record. (See Nunez-Sharp, supra, 2017
Cal.App.Unpub. LEXIS 1787, at *55-*58; In re McDowell
(2020) 55 Cal.App.5th 999, 1008 [Banks/Clark habeas claim
was subject to “deferential” review of record for substantial
evidence].) In contrast, appellant’s Section 1170.95 petition
raises the factual issue whether the prosecution has proved
beyond a reasonable doubt that he is guilty under a still-
valid theory, taking into account any new or additional
7
evidence admitted at the evidentiary hearing. (See

7
It is immaterial that, as the Attorney General observes,
appellant has not yet “indicated that any new evidence would be
presented on the [Section 1170.95] issue.” Appellant was entitled
to rely at the prima facie stage on the presumption that his
factual allegations were true. (See Lewis, supra, 11 Cal.5th at
974.) Moreover, the record does not show appellant had a
meaningful opportunity in the trial court to indicate whether he
(Fn. is continued on the next page.)

26
§ 1170.95, subd. (d); People v. Fortman, supra, 64
Cal.App.5th at 225, rev.gr.)
Accordingly, we will reverse the order denying
appellant’s Section 1170.95 petition and remand to the trial
court with directions to issue an order to show cause and
proceed in accordance with the statute. After the court
issues the order to show cause, appellant’s right to counsel
under Section 1170.95 will be protected by due process
concerns. (See Lewis, supra, 11 Cal.5th at 973 [analogizing
to due process right to counsel in habeas proceedings].)
Mindful of this protection, we will additionally direct the
court to consider the merits of appellant’s motion for
substitution of counsel.8

might offer new or additional evidence, given that: (1) he was
never personally present before the court; (2) the preprinted form
on which he filed his petition lacked any reference to his right to
offer new or additional evidence; (3) as the Attorney General
acknowledges, only a few days before attorney Patterson filed a
reply brief on appellant’s behalf, appellant “alleged that Mr.
Patterson had not provided him with a copy of the People’s
opposition or consulted with him about the issues in the case”;
and (4) his motions concerning Patterson were never addressed
by counsel or the court.
8
The Attorney General argues appellant abandoned his
motion for substitution of counsel, “[p]articularly” by filing his
subsequent motion to compel Patterson to communicate with him
about the issues. We disagree that the motion for substitution of
counsel was abandoned, but express no opinion whether the court
erred by failing to consider it at the prima facie stage.

27
 DISPOSITION
The order denying appellant’s petition for resentencing
under Section 1170.95 is reversed. The matter is remanded
to the trial court with directions to issue an order to show
cause, consider the merits of appellant’s motion for
substitution of counsel, and proceed in accordance with
Section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, P. J.

We concur:

CURREY, J.

MICON, J.

Judge of the Los Angeles County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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