Filed 1/3/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B308926
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA079230)
v.
ERNESTO MEJORADO,
Defendant and Appellant.
APPEAL from an order of the Superior Court for the
County of Los Angeles. Ronald S. Coen, Judge. Reversed and
remanded with directions.
Jean Ballantine, 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, Assistant
Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________
SUMMARY
Defendant Ernesto Mejorado is serving three terms of life
without parole, plus more for various enhancements, after a jury
convicted him in 2009 of the first degree murder of Raymundo
Flores, and of the later first degree murders of two other victims.
Only the Flores murder conviction is at issue in this appeal.
The jury found true the special circumstance allegation
that defendant committed the Flores murder while engaged in a
robbery. The jury could not determine whether defendant or his
companion was the actual killer, but necessarily found defendant
either acted with intent to kill or acted with reckless indifference
to human life and was a major participant in the robbery. We
affirmed the judgment on appeal. (People v. Arceo (2011)
195 Cal.App.4th 556 (Arceo).)
In 2020, defendant petitioned for resentencing under Penal
Code section 1170.95. (Unidentified section references are to the
Penal Code.) The trial court denied defendant’s petition without
appointing counsel for defendant, relying on cases holding the
jury’s special circumstance finding barred resentencing relief.
People v. Lewis (2021) 11 Cal.5th 952 (Lewis), decided after
the denial of resentencing in this case, established the trial
court’s failure to appoint counsel under the circumstances of this
case was state law error. The question before us is whether that
error was prejudicial. (Id. at pp. 973–974.) We conclude it was.
Accordingly, we reverse the trial court’s order denying
defendant’s petition and remand with directions to appoint
counsel, issue an order to show cause, and hold the hearing
described in section 1170.95, subdivision (d).
LEGAL BACKGROUND
In 2015 and 2016, the Supreme Court decided two cases
construing the terms “major participant” and “reckless
indifference to human life” for purposes of a special
2
circumstances finding. (People v. Banks (2015) 61 Cal.4th 788
(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).) Many
cases have given extensive descriptions of Banks and Clark, as
well as the United States Supreme Court cases on which they
relied. (See, e.g., People v. Wilson (2021) 69 Cal.App.5th 665,
678–685 (Wilson).) Both Banks and Clark involved armed
robberies and found the evidence legally insufficient to support
the jury’s special circumstance finding under section 190.2,
subdivision (d).
In Banks, the defendant was not a major participant, but
rather a “minor actor”—the getaway driver who did not see the
shooting, had no reason to know it would happen, and could not
do anything to stop it or render assistance. (Banks, supra,
61 Cal.4th at p. 807.) “[A] defendant’s personal involvement
must be substantial, greater than the actions of an ordinary aider
and abettor to an ordinary felony murder.” (Id. at p. 802.) As for
the defendant’s mental state, while he knew he was participating
in an armed robbery, no evidence at trial “supported the
conclusion beyond a reasonable doubt that [the defendant] knew
his own actions would involve a grave risk of death.” (Id. at
p. 807.) “Awareness of no more than the foreseeable risk of death
inherent in any armed crime is insufficient; only knowingly
creating a ‘grave risk of death’ satisfies the constitutional
minimum.” (Id. at p. 808.)
In Clark, the court did not decide whether the defendant
was a major participant (he had a prominent role in planning the
criminal enterprise) but decided only that the evidence was
insufficient to support a finding the defendant exhibited “reckless
indifference to human life.” (Clark, supra, 63 Cal.4th at pp. 613–
615.) Among other things, there was only one gun, which
belonged to the shooter and had only one bullet in it; the
defendant was not at the scene when the murder occurred and
3
planned the robbery for a time most employees would be gone;
and there was no evidence the defendant was aware the shooter
had a propensity for violence. (Id. at pp. 618–622.)
Banks and Clark provided guidance for determining
whether a defendant was a major participant (Banks) and
exhibited a reckless indifference to human life (Clark),
identifying several considerations, “[n]o one of [which] is
necessary, nor is any one of them necessarily sufficient.” (Banks,
supra, 61 Cal.4th at p. 803; Clark, supra, 63 Cal.4th at p. 618.)
In Banks, the considerations were: “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?” (Banks, supra, 61 Cal.4th at p. 803.) The
considerations identified in Clark are similar. 1
After Banks and Clark, the Legislature enacted Senate Bill
No. 1437 (2017–2018 Reg. Sess.), effective January 1, 2019,
amending the felony-murder rule and the natural and probable
consequences doctrine for murder. The bill’s purpose was “to
1 The considerations identified in Clark in determining
reckless indifference to human life are: (1) knowledge of
weapons, and use and number of weapons; (2) physical presence
at the crime and opportunities to restrain the crime and/or aid
the victim; (3) duration of the felony; (4) the defendant’s
knowledge of cohort’s likelihood of killing; and (5) the defendant’s
efforts to minimize the risks of the violence during the felony.
(Clark, supra, 63 Cal.4th at pp. 618–622.)
4
ensure that murder liability is not imposed on a person who is
not the actual killer, did not act with the intent to kill, or was not
a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,
subd. (f).) The new law amended the definition of malice in
section 188, and narrowed the class of persons liable for felony
murder in section 189. (Stats. 2018, ch. 1015, §§ 2 & 3.)
Now, “[a] participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) [including
robbery] in which a death occurs is liable for murder only if one of
the following is proven: [¶] (1) The person was the actual killer.
[¶] (2) The person was not the actual killer, but, with the intent
to kill, aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of
murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.” (§ 189, subd. (e).)
Senate Bill No. 1437 also added section 1170.95, which
specifies a procedure under which a person “convicted of felony
murder or murder under a natural and probable consequences
theory” may petition the sentencing court “to have the
petitioner’s murder conviction vacated” and to be resentenced on
any remaining counts. (Stats. 2018, ch. 1015, § 4; § 1170.95,
subd. (a).) Among the conditions that apply to such a petition is
that 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)(3).) 2
2
Section 1170.95 has been amended by Senate Bill No. 775
(2021–2022 Reg. Sess.), effective January 1, 2022, to clarify that
persons who were convicted of attempted murder or
5
FACTS
1. The Murders in This Case
We take the facts from our opinion in 2011 affirming
defendant’s convictions. (Arceo, supra, 195 Cal.App.4th at
pp. 560–561.)
“Defendants Arceo and Mejorado were members of a gang,
the Krazy Ass Mexicans, as was Francisco Ramirez. Sergio
Mejorado, defendant Mejorado’s half brother, was a member of a
different gang. These four gang members were participants in
some or all of the three murders in this case. . . .
“Mejorado and Ramirez, who were good friends, lived in a
converted garage adjacent to a house (the Lopez house) owned by
Mejorado’s grandmother, Maria Lopez. Maria Lopez lived there
with her sons Adan and Ramon Lopez, and Ramon’s son David
Lopez. Another grandson, Tommy Lopez, also a gang member,
lived elsewhere with his then girlfriend, Jessika Merrill.
Defendant Arceo and codefendant’s half brother, Sergio, also
lived elsewhere. . . . (To avoid confusion, we refer to all of the
Lopezes as well as to Sergio Mejorado by their first names.)
Jennifer Sanchez and America (or Erica) San Miguel, two young
women described as ‘druggies,’ spent a lot of time at the garage of
the Lopez house with Mejorado and Ramirez.
manslaughter under a theory of felony murder and the natural
and probable consequences doctrine may obtain the same relief
as persons convicted of murder under those theories.
(Stats. 2021, ch. 551, § 1, subd. (a).) The amendment also codifies
certain holdings in Lewis, supra, 11 Cal.5th 952; reaffirms the
burden of proof at a resentencing hearing; and addresses the
evidence a court may consider at a resentencing hearing.
(Stats. 2021, ch. 551, § 1, subds. (b)–(d).)
6
“The first murder victim was Raymundo Flores. Flores
drove a green Impala with special chrome rims and electronic
equipment, and there was evidence suggesting he had recently
come into possession of $18,000 and that this was known to
Ramirez and Mejorado. In the early morning hours of April 12,
2005, Flores was shot in the back of the head with a .380-caliber
round from a semiautomatic handgun. He was found in an alley
near the Lopez house and later died. That same morning,
Mejorado knocked on the door of the Lopez house and, in an
excited state, told his cousin, David, who had been sleeping in the
living room, that ‘they [(he and Ramirez)] had murdered some
guy’ in the alley.[3] David went back to sleep. A few hours later,
when he got up to go to work, David saw a green car with
expensive rims in the driveway, covered with blankets.
“The next day, Ramirez and Mejorado took the rims off the
car, replaced the tires with spare tires, and took televisions and
other electronic equipment from the car and put them in the
house. Sanchez, one of the ‘druggies,’ was present, as were
Tommy and his girlfriend Merrill.
“Ramirez drove away in the stripped car with Sanchez,
taking the car a couple of streets away from the Lopez house.
Mejorado followed with Tommy and Merrill. When Tommy and
Merrill drove up, the others ‘had gas on the car,’ and Mejorado
3 David testified defendant and Ramirez were “ ‘kind of
panicking,’ ‘[k]ind of like a freak mode, like they were in a rush to
do things.’ Mejorado told him ‘they had murdered some guy.’
David told the police that Mejorado asked David if he had heard
a gunshot, and said, ‘Man, we murdered somebody, we murdered
somebody, hurry up,’ and ‘[w]e just murdered somebody.’
Mejorado grabbed some clothing and ran back out.” (Arceo,
supra, 195 Cal.App.4th at p. 565.)
7
then set it on fire.” (Arceo, supra, 95 Cal.App.4th at pp. 560–
561.) 4
Defendant’s jury found him guilty of the first degree
murder of Flores; found true the allegations that a principal
personally and intentionally discharged a firearm proximately
causing the death of Flores (as well as the lesser firearm
allegations); and found true the special circumstance allegation
that defendant committed the Flores murder while engaged in a
robbery. The jury could not reach a verdict on the gang
allegation attached to the Flores murder count, and the court
declared a mistrial on that allegation. (Arceo, supra,
195 Cal.App.4th at pp. 569–570.) The jury also convicted
defendant of the Sanchez and San Miguel murders and of
conspiracy to commit those murders. 5 (Ibid.)
Defendant was sentenced to three terms of life without
parole, plus 50 years to life for firearm enhancements with
4 Our opinion goes on to recite the circumstances
surrounding the murder of the next two victims, Sanchez and
San Miguel, the two young women who were frequently at the
garage of the Lopez house with defendant and Ramirez. In brief,
12 days after the Flores murder, Sergio and Arceo killed Sanchez
and San Miguel. Defendant and Ramirez loaded the bodies into
the trunk of David’s car, and Ramirez left in the car with the
bodies, which were found the next day in Tulare County, burned
and unrecognizable. (Arceo, supra, 195 Cal.App.4th at p. 561.)
5 In addition to those convictions and attached firearm and
gang allegations that were found true, the jury found true special
circumstance allegations that San Miguel was intentionally killed
because she was a witness to a crime, and that defendant
committed more than one offense of murder. (Arceo, supra,
195 Cal.App.4th at pp. 569–570.)
8
respect to the San Miguel and Sanchez murders. (Arceo, supra,
195 Cal.App.4th at p. 570.)
2. The Resentencing Petition
In July 2020, defendant filed a resentencing petition,
stating he was convicted of the first degree felony murder of
Flores and could not now be so convicted because of changes to
section 189. He stated he was not the actual killer; he “did not,
with the intent to kill, aid, abet, counsel, commend, induce,
solicit, request, or assist the actual killer in the commission of
murder in the first degree”; and he “was not a major participant
in the felony or [he] did not act with reckless indifference to
human life during the course of the crime or felony.” He
requested the court appoint counsel for him.
On September 3, 2020, the trial court denied the petition,
without appointing counsel or receiving briefs. The court’s
minute order states that, although the jury was instructed before
Banks and Clark were decided, “the felony murder special
circumstance instructions utilized did require the jury to find the
petitioner was either the actual killer, an aider and abettor who
had the intent to kill, or an aider and abettor who was a major
participant in the underlying felony who acted with reckless
indifference to human life.” Further, “the jury was properly
instructed as to aider and abettor liability for felony murder. In
such instance, the petitioner could still be convicted of murder
under newly enacted Penal Code section 189(e). As such,
petitioner is not eligible for relief as a matter of law and the
petition may be summarily denied.”
Defendant filed a timely appeal from the denial of his
resentencing petition.
DISCUSSION
This case presents, first, a question that has produced a
split of authority in the Courts of Appeal: Does a pre-Banks and
9
Clark felony-murder special circumstance finding preclude a
defendant from making a prima facie showing of eligibility for
resentencing relief under section 1170.95? The Supreme Court
has granted review of that issue. (People v. Strong (Dec. 18,
2020, C091162) [nonpub. opn.], review granted Mar. 10, 2021,
S266606.)
The trial court here relied on two cases holding a felony-
murder special circumstance finding categorically bars relief
under section 1170.95: People v. Galvan (2020) 52 Cal.App.5th
1134 (Galvan), review granted October 14, 2020, S264284 and
People v. Gomez (2020) 52 Cal.App.5th 1 (Gomez), review granted
October 14, 2020, S264033. While their reasoning differed, both
Galvan and Gomez concluded “the proper remedy for challenging
a special circumstance finding is by a petition for habeas corpus,
not a petition for resentencing under section 1170.95.” (Galvan,
at p. 1137; see Gomez, at p. 17; see also People v. Murillo (2020)
54 Cal.App.5th 160, 168, review granted Nov. 18, 2020, S264978;
People v. Allison (2020) 55 Cal.App.5th 449, 458 [Banks and
Clark merely clarified the law; the phrases “major participant”
and “reckless indifference to human life” are interpreted as they
are used in common parlance; and “[j]ury instructions regarding
the mental state required for a felony-murder special
circumstance are not defective if they do not include the Banks
and Clark factors”].)
Other cases have disagreed. These cases generally say that
because the special circumstance finding was made prior to the
Banks and Clark opinions, and because Banks and Clark
construed the meaning of “major participant” and “reckless
indifference to human life” in a significantly different, narrower
manner than previously, “the factual issues that the jury was
asked to resolve in [cases pre-dating Banks] are not the same
factual issues our Supreme Court has since identified as
10
controlling.” (People v. Smith (2020) 49 Cal.App.5th 85, 93,
review granted July 22, 2020, S262835; People v. Torres (2020)
46 Cal.App.5th 1168, 1179, review granted June 24, 2020,
S262011; see Wilson, supra, 69 Cal.App.5th at pp. 677–678; id. at
p. 678 [“Our examination . . . of the evolving meaning of the
terms ‘major participant’ and ‘reckless indifference to human life’
convinces us that a special circumstance finding predating Banks
and Clark cannot categorically bar resentencing relief under
section 1170.95.”]; People v. Secrease (2021) 63 Cal.App.5th 231,
254, review granted June 30, 2021, S268862 [Banks and Clark
“placed new limits” on the meaning of “major participant” and
“reckless indifference to human life”].)
We see no point in adding to the extensive analyses
provided in these two lines of cases. We decide only to follow the
views expressed in the Smith and Torres line, concluding only
that the special circumstance finding is not a categorical bar to
resentencing relief in every case as a matter of law. In resolving
this case, we are guided first by Lewis, which resolved other
issues debated in the Courts of Appeal relating to the
appointment of counsel, the record of conviction, and the
defendant’s prima facie case. Several points are relevant.
“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
11
first conducting an evidentiary hearing.’ [Citation.] ‘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.]” (Lewis, supra, 11 Cal.5th at p. 971.)
Lewis also tells us that appellate opinions are generally
considered part of the record of conviction but cautions that “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.’ [Citation.] As the People emphasize, the
‘prima facie bar was intentionally and correctly set very low.’ ”
(Lewis, supra, 11 Cal.5th at p. 972.)
Lewis found the failure to appoint counsel—as happened in
this case—was state law error only, and repeated that the
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.’ [Citation.] [The petitioner] must therefore
‘demonstrate there is a reasonable probability that in the absence
of the error he . . . would have obtained a more favorable result.’
[Citations.] More specifically, a petitioner ‘whose petition is
denied before an order to show cause issues has the burden of
showing “it is reasonably probable that if [he or she] had been
afforded assistance of counsel his [or her] petition would not have
been summarily denied without an evidentiary hearing.” ’
[Citation.]” (Lewis, supra, 11 Cal.5th at p. 974.)
We conclude from these principles in Lewis that the error
in failing to appoint counsel is harmless only if we can determine
that the record of conviction “ ‘ “contain[s] facts refuting the
12
allegations made in the petition.” ’ ” (Lewis, supra, 11 Cal.5th at
p. 971.) On that point, we cannot say that the facts recited in our
2011 opinion establish, as a matter of law, that defendant acted
with reckless indifference to human life during the course of the
Flores robbery and murder, as that term has been construed in
Banks and Clark, and again more recently in In re Scoggins
(2020) 9 Cal.5th 667 (Scoggins). 6
The facts described in our opinion establish defendant and
Ramirez were close friends who lived together and were members
of the same gang; defendant knew Flores had $18,000; and
defendant was at the crime scene, because he later said to David
Lopez, in an excited state, that “ ‘[w]e just murdered somebody.’ ”
There is no evidence of whether or not defendant did anything to
help Flores after Flores was shot in the back of the head; we only
know Flores “later died.” There is a great deal of evidence about
defendant’s actions the morning after Flores was killed and in
the days that followed, to remove valuables from the car and
cover up the crimes. From all this, we may be justified in
concluding defendant was a major participant in the robbery
under Banks. But we are uncertain at this stage that our
appellate opinion establishes as a matter of law that defendant
acted with reckless indifference to human life during the course
of the robbery.
The People contend we may infer from the evidence recited
in our opinion that defendant and Ramirez “together planned the
robbery and murder of Flores” (italics added). The People argue
6 Scoggins addressed whether the defendant’s conduct
supported a robbery-murder special-circumstance finding under
Banks and Clark, and held the defendant did not act with
reckless indifference to human life. (Scoggins, supra, 9 Cal.5th at
p. 671.)
13
we may infer, from the evidence they stripped Flores’s car, “that
they had the tools and materials necessary to strip the car
because they had planned and prepared to kill Flores and strip
his car prior to the robbery”; and we may infer, from the fact
Flores was shot in the back of the head, that defendant “knew
that a firearm would be used in the robbery of Flores and
[defendant] was aware of the dangers posed by the nature of that
robbery.” We are not persuaded these inferences are sufficient to
establish as a matter of law that defendant intended to murder
Flores or acted with reckless indifference to his life.
The People add that gang evidence supported the inference
“that [defendant] was at a minimum aware of the potential
danger that Flores would be killed during the robbery,” and also
that defendant “knew Ramirez had a propensity for violence.”
The People cite no basis in the record for the latter inference. As
for the former, Scoggins tells us that “[n]otably, ‘the fact a
participant [or planner of] an armed robbery could anticipate
lethal force might be used’ is not sufficient to establish reckless
indifference to human life.” (Scoggins, supra, 9 Cal.5th at
p. 677.) The People cite expert evidence that the murder of
Flores benefitted defendant and the gang, but the jury could not
reach a verdict on the gang allegation attached to the Flores
murder count.
We do not know whether defendant “use[d] or [knew] that a
gun would be used during the felony.” (Scoggins, supra, 9 Cal.5th
at p. 677.) So far as we know, only one weapon was used. (See
ibid.) We do not know if defendant had “the opportunity to
restrain the crime or aid the victim” (ibid.)—we only know there
is no evidence on the point. We do not know “the duration of the
interaction between the perpetrators of the felony and [Flores].”
(Ibid.) We do not know defendant’s “knowledge of [Ramirez’s]
propensity for violence or likelihood of using lethal force.” (Ibid.)
14
We do not know whether defendant tried “to minimize the risks
of violence during the felony.” (Ibid.)
In short, it may be that the record of conviction contains
other evidence bearing on the issue, but our opinion reveals little
about defendant’s mental state during the course of the robbery.
(See Banks, supra, 61 Cal.4th at p. 801 [“The defendant must be
aware of and willingly involved in the violent manner in which
the particular offense is committed, demonstrating reckless
indifference to the significant risk of death his or her actions
create.”]; Clark, supra, 63 Cal.4th at p. 617 [the mere fact that a
robbery involves a gun, “on its own and with nothing more
presented, is not sufficient to support a finding of reckless
indifference to human life for the felony-murder aider and abettor
special circumstance”].) 7
7 The People also cite our opinion in the direct appeal, where
we found (in the nonpublished portion) that any error in
excluding Adan Lopez’s testimony—that defendant said Ramirez
had shot Flores—was harmless beyond a reasonable doubt.
(People v. Arceo (Apr. 13, 2011, B218758) [nonpub. opn.].)
According to the People, we said there was overwhelming
evidence “that [defendant] was at least liable as a direct aider
and abettor in Flores’s murder.” (Italics added.) We did not use
the term “direct aider and abettor,” and of course the opinion
predated the change in the law requiring intent to kill. (The trial
court stated defendant’s jury “was instructed re aiding and
abetting, natural and probable consequences doctrine, malice
murder and felony murder.”) The People go on to imply we
meant that “the evidence of [defendant’s] participation in the
robbery and murder of Flores was so strong that it not only
showed he was a major participant in the robbery who acted with
reckless indifference to life, but that he had the intent to kill
Flores.” That conclusion cannot properly be drawn.
15
Defendant has alleged he “did not act with reckless
indifference to human life during the course of the crime or
felony,” and contends it is “not enough to prove two perpetrators
committed a robbery, the victim was killed, and the perpetrators
then acted to cover up the crime.” Lewis tells us the court, “[i]n
reviewing any part of the record of conviction at this preliminary
juncture, . . . should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ ” (Lewis,
supra, 11 Cal.5th at p. 972.) Acknowledging Lewis’s caution that
“ ‘an appellate opinion might not supply all answers’ ” (ibid.), we
are not prepared to conclude the facts described in our opinion
conclusively refute defendant’s allegations as a matter of law.
Accordingly, the trial court must issue an order to show cause
and hold a hearing, in accordance with the provisions of
section 1170.95, subdivision (d) then in effect.
DISPOSITION
The order is reversed, and the cause is remanded to the
trial court with instructions to appoint counsel for defendant,
issue an order to show cause and hold a hearing as described in
section 1170.95, subdivision (d).
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
16
STRATTON, J., and WILEY, J., Concurring.
We write separately to explain that we have reconsidered
the position we took in People v. Rangel (Dec. 17, 2021, B311083)
[nonpub. opn.]. That opinion held that a defendant challenging
the sufficiency of a jury’s special circumstance finding may do so
only by filing a petition for writ of habeas corpus rather than
raising the challenge in a petition filed pursuant to Penal Code
section 1170.95. 1 We reasoned that such a defendant is not
relying on changes in sections 188 and 189 brought about by
Senate Bill No. 1437 (2017–2018 Reg. Sess.); instead such a
defendant is relying on changes created by People v. Banks (2015)
61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522.
We have since been persuaded that such a challenge via a
petition brought under section 1170.95, as amended by Statutes
2021, chapter 551, section 2 (eff. Jan. 1, 2022), falls within the
legislative intent of Senate Bill No. 1437. We concur that
Mejorado is not ineligible as a matter of law to have his murder
conviction vacated just because he has not already had his special
circumstance findings overturned by way of habeas corpus.
Sections 188 and 189 now engraft new elements onto felony
murder—proof beyond a reasonable doubt that a defendant acted
with reckless indifference to human life and was a major
participant in the felony offense. The elements happen to be
framed in the same language used to describe the special
circumstance of section 190.2, but they are applied under
narrower definitions put in place by Banks and Clark after
Mejorado’s conviction. Based on the record before us, it is not
possible to say as a matter of law that Mejorado’s murder
conviction satisfies the additional elements added by sections 188
and 189 as interpreted by Banks and Clark. Mejorado is entitled
1 All further statutory references are to the Penal Code.
1
to the issuance of an order to show cause, an evidentiary hearing,
and a determination by the trial court as to whether he is guilty
of the murder of Raymundo Flores beyond a reasonable doubt
notwithstanding the changes wrought to sections 188 and 189.
STRATTON, J.
WILEY, J.
2