People v. Rios CA2/4

Filed 1/6/22 P. v. Rios 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B310532

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA109070)
v.

JUAN PABLO RIOS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, George C. Lomeli, Judge. Reversed and
remanded with directions.
Judith Kahn, 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 Charles S. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
 In 1997, a jury convicted appellant Juan Rios and several
co-defendants of two counts of first degree murder, two counts of
robbery, and found true the special circumstance allegation that
the murders were committed during the commission of a robbery.
We affirmed these convictions in 1998 in our prior, unpublished
opinion, People v. Martinez (Nov. 12, 1998, B113156) [nonpub.
opn.] (Martinez).1 In 2019, appellant filed his first petition for
resentencing under Penal Code section 1170.95.2 The superior
court denied the petition, finding that appellant was ineligible for
relief as a matter of law because the jury’s true finding on the
special circumstance allegation included a finding that appellant
was a major participant in the underlying robbery who acted with
reckless indifference to human life. Appellant filed his second
petition for resentencing in 2020. The superior court appointed
counsel for appellant and the parties submitted briefing. The
court denied the petition, again relying on the jury’s special
circumstance finding.
Appellant asserts that the court erred in relying on the
jury’s special circumstance finding, which predated the Supreme
Court’s decisions in People v. Banks (2015) 61 Cal.4th 788
(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). Those
decisions clarified the law regarding major participants in an
underlying offense who act with reckless indifference to life.
Instead, appellant urges us to follow the reasoning in a line of
cases including People v. Torres (2020) 46 Cal.App.5th 1168,

1 We grant appellant’s unopposed request to take judicial
notice of the record that was before us in the prior appeal.
2 All further section references are to the Penal Code unless

otherwise indicated.

2
1173, review granted June 24, 2020, S262011 (Torres), which
held that a superior court commits reversible error by summarily
denying a section 1170.95 petition based on a robbery-murder
special circumstance finding that predates Banks and Clark.
Respondent Attorney General cites a line of cases disagreeing
with Torres, and urges us to affirm the superior court’s ruling.
Alternatively, respondent contends that we may conduct an
independent analysis of the evidence under Banks and Clark,
from which we should conclude that any error was harmless.
As we have in our prior decisions on the issue, we adopt the
reasoning of Torres and similar cases and therefore conclude that
the superior court erred in finding relief was precluded as a
matter of law by the jury’s pre-Banks and Clark special
circumstance finding. We also decline respondent’s invitation to
find the error harmless by factually determining whether
appellant was a major participant who acted with reckless
indifference under the standards established by Banks and
Clark. Because nothing in the record of conviction established
appellant’s ineligibility as a matter of law, we reverse the order
summarily denying appellant’s petition, and direct the court to
issue an order to show cause and proceed consistent with section
1170.95, subdivision (d).
BACKGROUND
I. Factual Background
The underlying facts presented at trial are discussed in
detail in our prior opinion, Martinez, supra, B113156. We
summarize them here as relevant to the instant appeal.
Appellant and co-defendants Javier Martinez, Marvin
Zarceno, and Jose Gomez were members of the Crazy Riders
gang. On November 4, 1995, Edith Luz Pena and her husband

3
Reynaldo Lopez were working in their clothing store. Zarceno
entered the store, pushing Richard Startz, another Crazy Rider,
in a wheelchair. Pena, a former member of the Crazy Rider gang,
recognized both men as Crazy Riders. Startz asked to see some
clothing, and Pena placed several items of clothing on his knees.
Startz threw some of the clothes on the sidewalk. When
Lopez told Startz he would have to pay for the clothing, Startz
lifted his shirt, displaying a silver semiautomatic gun. Lopez
tried to take the clothing that remained on Startz’s knees, but
both Zarceno and Startz resisted. Zarceno tried to hit Lopez.
Zarceno left the store to call his “homeboy[s],” and Startz told
Lopez he would kill him.
Zarceno returned to the store with appellant, Martinez,
Gomez, and several other Crazy Riders, including two men
identified only as “El Guero,” and “Little Mister.” Martinez
pushed Pena, and appellant pushed and kicked her. El Guero
went behind the counter and disconnected the telephone. He also
rummaged through Pena’s purse; she later discovered that he
had taken $700 from her purse.
While inside the store, Martinez asked Little Mister for his
gun. Martinez held the gun directly in front of Lopez’s forehead
and hit Lopez in the mouth. Martinez said, “I’m going to kill
you.” He then hit Lopez a second time and repeated, “I’m going
to kill you. . . . Here the Crazy Riders are in charge. [¶] This is
our barrio.” El Guero told Martinez to kill Lopez. Lopez asked
Pena to call the police, but several Crazy Riders held her back.
Both Lopez and Pena testified that several gang members,
including appellant, grabbed and held Pena.
Martinez returned the gun to Little Mister saying, “Do
what you have to do. Do it for the barrio.” At that point, Lopez’s

4
brother, Joel Hernandez, entered the store and asked what was
happening. El Guero told Little Mister to kill him. Appellant, El
Lobo, and Startz each said, “Kill him. Kill him.” Appellant also
said that the neighborhood was a Crazy Rider neighborhood and
had to be respected.
Little Mister shot Hernandez three or four times.
Hernandez died as a result of the gunshot wounds. The Crazy
Riders holding Pena released her.
The Crazy Riders ran out of the store. Martinez was one of
the last to leave and again asked Little Mister for the gun.
Outside the store, Martinez shot and killed Stanley Drury, a
bystander who had been watching what was happening.
At trial, Officer Josh Adler, a gang expert, testified that the
Crazy Riders controlled their neighborhood, or barrio, through
their numbers. According to him, the gang and its members
strived to gain respect through fear and intimidation, which was
generated by robbing and assaulting neighborhood residents.
Adler testified that if a gang member felt disrespected, the gang
might return and “payback” the offender or retaliate, including
through assault, robbery, threats, and intimidation. He also
testified that he believed a gang member who was present at a
shooting was an active participant in the crime.
II. Procedural History
A. Trial and Direct Appeal
Appellant, Gomez, Zarceno, and Martinez were tried on two
counts of murder for killing Hernandez and Drury (§ 187, subd.
(a)), and two counts of robbery for taking property from Pena and

5
Lopez (§ 211).3 The charges included special circumstance
allegations that the murders occurred while the defendants were
engaged in a robbery within the meaning of section 190.2,
subdivision (a)(17) and that the defendants committed more than
one murder within the meaning of section 190.2, subdivision
(a)(3), as well as enhancement allegations that Martinez
personally used a firearm (§§1203.06, subd. (a)(1), 12022.5, subd.
(a)) and that a principal was armed with a firearm (§ 12022,
subd. (a)(1)).
In 1997, the jury convicted appellant, Gomez, Zarceno, and
Martinez of both counts of first degree murder and both counts of
second degree robbery. As to both murders, the jury found true
the allegation that a principal was armed with a firearm, as well
as the special circumstance allegations that the murders were
committed during the commission of a robbery (§ 190.2, subd.
(a)(17) and that the defendants were guilty of more than one
count of murder (§ 190.2, subd. (a)(3)). The trial court sentenced
appellant to two concurrent terms of life imprisonment without
the possibility of parole for the murders, plus one year for the
firearm enhancement, as well as two concurrent three-year terms
for the robberies.
Appellant and his co-defendants appealed their convictions.
In our prior opinion, we affirmed appellant’s convictions. We
found sufficient evidence for the jury to conclude that appellant
and the other Crazy Riders accompanied Zarceno back to the
store with the intent to commit a robbery, and that the murders

3A fifth count for conspiracy was dismissed during trial.
The court also granted a section 1118.1 motion as to Escobar,
dismissing all counts against him.

6
were committed during the perpetration of that robbery.
(Martinez, supra, B113156.)
Appellant also argued that there was insufficient evidence
to support the special circumstance finding that he was a major
participant in the robbery and acted with reckless indifference to
human life. We disagreed, finding that appellant “played a major
role in the underlying robbery,” by enabling the robbery to occur.
We noted the evidence that appellant physically restrained Pena,
preventing her from stopping El Guero as he rummaged through
her purse and extracted the money, and also that appellant
prevented Pena from calling the police, which “helped ensure the
success of the robbery and the murder.” Appellant also “ordered
Little Mister to ‘kill him,’ and . . . reiterated Martinez’s statement
that the Crazy Riders deserved respect in the neighborhood,”
then failed to aid Hernandez after he was shot. (Ibid.) As such,
we concluded that appellant “facilitated the robbery and
specifically urged a killing, thereby demonstrating [he was a]
major participant[ ] in the robbery and, at a minimum,
demonstrated a reckless indifference to human life.” (Ibid.) We
therefore found that there was sufficient evidence to sustain
appellant’s conviction for the special circumstance murder of
Hernandez as an aider and abettor. (Martinez, supra, B113156,
at 23-24.)
With respect to Drury’s murder, we noted that appellant,
Gomez, and Zarceno “persuasively argue the evidence is
insufficient to convict them of Mr. Drury’s killing based on aiding
and abetting a premeditated and deliberate killing.” In
particular, we cited the evidence that appellant “may already
have left the scene prior to the killing since Martinez was one of
the last to leave. But, in finding the special circumstance of

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robbery-murder true as to the appellants, the jury concomitantly
found the elements of felony murder to be true. Because the jury
relied on a proper theory to support appellants’ convictions,
reversal is not warranted.” (Martinez, supra, B113156.)
B. First Petition for Resentencing
On March 6, 2019, appellant filed a petition for
resentencing under section 1170.95. On the form petition, he
checked the boxes asserting that he was convicted of first degree
felony murder, could not now be convicted of murder because of
changes to section 189, and that there had “been a prior
determination by a court or jury that I was not a major
participant and/or did not act with reckless indifference to human
life,” so that he was entitled to be resentenced pursuant to section
1170.95, subdivision (d)(2). Appellant also checked the box
requesting the appointment of counsel.
The court denied the petition on March 29, 2019. In
summarizing the evidence, the court noted that appellant “was
one of the individuals who returned with the other gang members
one of which was armed with a firearm. While at the location,
[appellant] was also one of the individuals that grabbed one of
the owners, a Miss Pena, and also was one of the members who
directly encouraged another member, Mr. Romero, to shoot victim
Hernandez. [Appellant] was not only present during the shooting
of victims Hernandez and Drury, but also was responsible for
physically harassing the owners, was privy to the threats being
made on their lives and responsible for running off without
attempting to render aid to the victims after the shootings.” The
court found “based upon the totality of the evidence presented at
trial and the overall court record that the petitioner was indeed a
major participant who acted with reckless indifference.”

8
Accordingly, the court denied appellant’s petition, finding that he
was ineligible for relief under section 1170.95.
C. Petition for Habeas Corpus
Appellant filed a petition for writ of habeas corpus on April
23, 2019. He argued that there was insufficient evidence to
support the special circumstances finding that he exhibited
reckless indifference to human life (section 190.2, subdivision (d))
pursuant to the standards set forth in Banks and Clark. More
specifically, he contended that he arrived at the scene after the
victims were killed, he never told or encouraged anyone to kill
the victims, did not provide any weapons to the perpetrator(s),
and claimed he had been framed by a police detective. Appellant
also argued that his petition for resentencing under section
1170.95 should have been granted because he was neither the
actual killer nor a major participant.
The court denied appellant’s habeas petition in a one-page
written order dated May 15, 2019. The court found that
appellant failed to establish a prima facie case for relief and that
the record was “void of any evidence and/or information which
supports the Petitioner’s contention raised in his present petition
regarding the insufficiency of evidence and/or the introduction of
false evidence.” The court also cited its prior order denying
appellant’s petition for resentencing.
D. Second Petition for Resentencing
Appellant filed a second petition for resentencing under
section 1170.95 on September 16, 2020. He again checked the
boxes indicating that he had been convicted of first degree felony
murder but could not now be convicted because he was not the
actual killer, did not directly aid or abet the killer, and was not a
major participant.

9
 The court ordered the appointment of counsel for appellant.
The People filed a response to the petition, arguing that the
second petition did not contain any additional facts or authorities
that would compel the court to reverse its prior finding that
appellant was not entitled to relief. Specifically, the prosecution
argued that in finding true the felony murder special
circumstances, the jury “found either that Petitioner was: (1) the
actual killer; (2) an aider and abettor who harbored the intent to
kill; or (3) a major participant in the . . . robbery who acted with
reckless indifference to human life.” Thus, the prosecution
contended that appellant could still be convicted of murder and
was ineligible for relief as a matter of law.4
Appellant, through his appointed counsel, filed a reply on
January 8, 2021. He argued that he was eligible for relief
because he was not the actual killer, and under the Banks/Clark
standard, he was not a major participant in the underlying felony
and did not act with reckless indifference to human life.
At a hearing on January 25, 2021, the court reviewed the
facts “as reflected by the evidence.” The court noted that “the

4At the hearing on the petition, the prosecutor informed
the court that under the new directive issued by the new District
Attorney, the prosecution was no longer arguing that a petitioner
was ineligible for relief as a matter of law based on a pre-Banks
and Clark special circumstances finding. The court indicated it
would grant a continuance if she wished to cite additional
authority, but not to “explore with your office what steps should
be taken based on the new directive or policy and the manner
that you’re going to address the 1170.95 petition. If that is the
only thing, the court will allow the ruling to stand today.” The
prosecutor declined the continuance and the court stated that its
ruling denying the petition would stand.

10
evidence reflects that the petitioner . . . was one of the individuals
who returned with the other gang members, one of which was
armed with a firearm. [¶] While at the location, the petitioner
was also one of the individuals who grabbed one of the owners,
Ms. Pena, and also one who directly encouraged another member
to shoot . . . victim Hernandez. . . . [¶] The petitioner was not
only present during the shooting of the victims, Mr. Hernandez
and Mr. Drury, but was responsible for restraining one of the
victims while physically harassing the owner. [¶] Moreover, he
was privy to the threats . . . being made to the victims’ lives and
responsible for running off without attempting to render aid after
the shootings.” The court rejected appellant’s argument that he
did not act as a major participant with reckless indifference to
human life, explaining that: “based upon the fact that the jury, in
finding true the special circumstance allegation pursuant to
Penal Code Section 190.2(a)(17), it was necessary for the jury to
have found beyond a reasonable doubt that the petitioner acted
with reckless indifference to human life and was a major
participant who aided and abetted, counseled, induced, or
assisted in the commission of the crimes of robbery which
resulted in the deaths in question.” The court further found that
the amendment to section 189, subdivision (e) “effectively made
the crime of felony murder subject to the same requirements as
special circumstance murder committed during the course of a
felony listed in section 190.2(a)(17),” and concluded that “the case
law and factors outlined in the cases of People v. Banks, [supra,]
and People v. Clark, [supra,] make it clear that the petitioner is
ineligible for relief.” The court therefore denied appellant’s
petition.

11
 DISCUSSION
Appellant asserts that the superior court prejudicially
erred in denying his section 1170.95 petition at the prima facie
stage, in reliance on the jury’s robbery-murder special
circumstance finding. Because the jury’s special circumstance
finding was made prior to Banks, supra, 61 Cal.4th 788 and
Clark, supra, 63 Cal.4th 522, appellant contends it does not
preclude relief under section 1170.95 as a matter of law. We
agree.
I. Governing Law
“In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437) after determining that
there was further ‘need for statutory changes to more equitably
sentence offenders in accordance with their involvement in
homicides.’ (Stats. 2018, ch. 1015, § l, subd. (b).)” (People v.
Gentile (2020) 10 Cal.5th 830, 838-839 (Gentile).) These changes
included the amendment of section 189 to provide that a
participant in qualifying felonies during which a death occurs
generally will not be liable for murder unless the participant was
(1) “the actual killer,” (2) a direct aider and abettor in first degree
murder with the intent to kill, or (3) “a major participant in the
underlying felony [who] acted with reckless indifference to
human life.” (§ 189, subd. (e).)
Senate Bill 1437 also added section 1170.95, which
provides a procedure for individuals convicted of murder under
the felony murder rule or the natural and probable consequences
doctrine to have their murder convictions vacated and to be
resentenced on any remaining counts. (Gentile, supra, 10 Cal.5th
at p. 843; § 1170.95, subd. (a).) The first step in the section
1170.95 procedure is for the person seeking resentencing to file a

12
petition with a declaration asserting that all of the following
conditions apply: “(1) A complaint, information, or indictment
was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony 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 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, subds. (a), (b)(1)(A).)
“Where the petition complies with subdivision (b)’s three
requirements, then the court proceeds to subdivision (c) to assess
whether the petitioner has made ‘a prima facie showing’ for
relief. (§ 1170.95, subd. (c).)” (People v. Lewis (2021) 11 Cal.5th
952, 960 (Lewis).) “[T]he ‘prima facie bar was intentionally and
correctly set very low.’” (Lewis, supra, 11 Cal.5th at p. 972.) “[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.’” (Id. at p. 974, quoting
People v. Drayton (2020) 47 Cal.App.5th 965, 980 (Drayton).) The
court may, however, review the record of conviction for “readily
ascertainable facts” that refute the allegations made in the
petition. (Drayton, supra, 47 Cal.App.5th at p. 980; Lewis, supra,
11 Cal.5th at p. 971.)
Denial of a petition under section 1170.95 at the prima
facie stage “is appropriate only if the record of conviction
demonstrates that ‘the petitioner is ineligible for relief as a
matter of law.’ [Citations.] This is a purely legal conclusion,

13
which we review de novo.” (People. v. Murillo (2020) 54
Cal.App.5th 160, 167-168, review granted Nov. 18, 2020,
S264978; see also People v. Turner (2020) 45 Cal.App.5th 428,
435.)
If the court determines that the petitioner has made a
prima facie showing for relief, it must issue an order to show
cause. (§ 1170.95, subd. (c).) The court must then hold an
evidentiary hearing to determine whether to vacate the murder
conviction (§ 1170.95, subd. (d)(1)), at which “[t]he prosecutor and
the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens” (§ 1170.95,
subd. (d)(3)). At the hearing stage, “the burden of proof shall be
on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)5

5 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 to provide that that “the
burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is guilty of murder . . .
under California law as amended by the changes to Section 188
or 189 made effective January 1, 2019.” The bill also deletes the
language in section 1170.95 authorizing the parties to rely on the
“record of conviction” and adds a statement that the court may
consider “the procedural history of the case recited in any prior
appellate opinion.” (Ibid.) Given our conclusion that the superior
court committed reversible error under the law predating these
amendments, we need not consider their potential relevance.

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II. Analysis
A. Forfeiture
As an initial matter, respondent contends that appellant’s
second section 1170.95 petition filed in 2020 is procedurally
barred as a “successive petition.” Respondent contends that
appellant’s first petition, filed in 2019, was denied on the merits
and that the 2020 petition raised the same claims. Thus,
respondent urges us to find that the petition at issue here is
barred by collateral estoppel.
Appellant counters that respondent failed to raise the issue
of collateral estoppel in the trial court and has therefore forfeited
the objection. We agree. Although the prosecution noted below
that appellant’s second petition alleged the same facts as his first
petition, it did not argue in its briefing or at the hearing before
the superior court that appellant’s 2020 petition was barred by
collateral estoppel. Consequently, neither appellant nor the
superior court had the opportunity to address the issue, and the
court did not rule on it in denying the petition. We therefore
conclude that respondent has forfeited the ability to raise
collateral estoppel for the first time on appeal. (See People v.
Morales (2003) 112 Cal.App.4th 1176, 1185 [“collateral estoppel is
waived if not raised in the trial court”]; People v. Neely (1999) 70
Cal.App.4th 767, 782–783.)6
B. Appellant Was Not Ineligible for Relief as a
Matter of Law
Turning to the merits of the appeal, appellant argues that
the superior court erred in denying his section 1170.95 petition at

We need not reach appellant’s additional argument that
6

respondent forfeited this issue by invited error.

15
the prima facie stage. The court concluded that the jury’s special
circumstance finding established as a matter of law that
appellant was a major participant in the underlying felony and
acted with reckless indifference to human life, thus he was
ineligible for relief. We conclude that this was error.
The robbery-murder special circumstance allegation
required the jury to find that appellant was a “major participant”
in the robbery and acted with “reckless indifference” to human
life. (§ 190.2, subd. (d).) The language of section 189, subdivision
(e)(3), as amended by Senate Bill 1437, tracks the language of the
special circumstance provision, providing that a participant in
the perpetration of a qualifying felony (here, a robbery) in which
a death occurs is liable for murder if it is proven that “[t]he
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.”
Respondent contends the requirements for a special
circumstance finding under section 190.2 are identical to the
requirements for felony murder under section 189 and we should
therefore rely on the jury’s special circumstance finding to
establish that appellant could still be convicted for murder under
section 189 and is ineligible for relief as a matter of law.
However, in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63
Cal.4th 522, our Supreme Court “clarified the meaning of the
special circumstances statute.” (In re Scoggins (2020) 9 Cal.5th
667, 674.) In Banks, the court considered the circumstances
under which an accomplice qualifies as a “major participant” in a
felony murder. (Banks, supra, 61 Cal.4th at p. 794.) The court
set out factors that “may be weighed in determining the ultimate
question, whether the defendant’s participation ‘in criminal

16
activities known to carry a grave risk of death’ [citation] was
sufficiently significant to be considered ‘major.’” (Id. at p. 803.)
Cautioning that no one factor was “necessary” or “necessarily
sufficient,” the court identified the following factors: “What role
did the defendant have in planning the criminal enterprise that
led to one or more deaths? What role did the defendant have in
supplying or using lethal weapons? What awareness did the
defendant have of particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other
participants? Was the defendant present at the scene of the
killing, in a position to facilitate or prevent the actual murder,
and did his or her own actions or inaction play a particular role in
the death? What did the defendant do after lethal force was
used?” (Ibid.) The following year, the Supreme Court stated in
Clark that “reckless indifference” “encompasses both subjective
and objective elements. The subjective element is the defendant’s
conscious disregard of risks known to him or her. . . .
[R]ecklessness is also determined by an objective standard,
namely what ‘a law-abiding person would observe in the actor’s
situation.’” (Clark, supra, 63 Cal.4th at p. 617.)
We recognize that courts are split on how to treat the
changes to the standard articulated in Banks and Clark in the
context of a section 1170.95 petition. (Compare, e.g., People v.
York (2020) 54 Cal.App.5th 250, 258, review granted Nov. 18,
2020, S264954 [“a pre-Banks and Clark special circumstance
finding cannot preclude eligibility for relief under the section
1170.95 as a matter of law”]; People v. Harris (2021) 60
Cal.App.5th 939, 957, review granted Apr. 28, 2021, S267802
(Harris) [a “pre-Banks/Clark finding, without more, does not
preclude relief under section 1170.95”]; with People v. Gomez

17
(2020) 52 Cal.App.5th 1, 17, review granted Oct. 14, 2020,
S264033 [“the proper procedure for [Gomez] to challenge her
special circumstance findings based on clarification of the
relevant law in Banks and Clark is to bring a petition for habeas
corpus”]; People v. Nunez (2020) 57 Cal.App.5th 78, 93, review
granted Jan. 13, 2021, S265918 [“whether a jury made a post- or
pre-Banks and Clark MPRI finding, that finding establishes as a
matter of law the defendant’s ineligibility for relief under section
1170.95”].) The issue is currently pending before our Supreme
Court.7
As we have in prior cases, we continue to find more
persuasive the reasoning set forth in Torres, supra, 46
Cal.App.5th 1168. In Torres, our colleagues in Division Five of
this district explained: “[O]ur Supreme Court’s decisions,
clarifying what it means . . . to be a ‘major participant’ in an
underlying felony and to act with ‘reckless indifference to human
life,’ 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.) Thus, when determining if appellant “could be convicted
today of first degree murder, we cannot simply defer to the jury’s
pre-Banks and Clark factual findings that [he] was a major
participant who acted with reckless indifference to human life as

7 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 defendant
from making a prima facie showing of eligibility for relief under
Penal Code section 1170.95?”

18
those terms were interpreted at the time.” (Ibid.) Accordingly,
the court held that “the trial court erred in ruling that the pre-
Banks and Clark robbery murder special circumstance findings
preclude Torres from relief as a matter of law.” (Id. at p. 1180.)
The Attorney General asserts that Torres was wrongly
decided, and urges us to follow instead the reasoning of People v.
Galvan (2020) 52 Cal.App.5th 1134, review granted October 14,
2020, S264284 (Galvan), and similar cases. In Galvan, Division
One of this district held that the “requirements for the felony-
murder special circumstance did not change as a part of Senate
Bill No. 1437, and are identical to the new requirements for
felony murder following the enactment of Senate Bill No. 1437. . .
. By finding a special circumstance allegation true, the jury
makes precisely the same finding it must make in order to
convict a defendant of felony murder under the new law. Because
a defendant with a felony-murder special circumstance could still
be convicted of murder, he is ineligible as a matter of law to have
his murder conviction vacated. (See § 1170.95, subd. (a)(3).)” (Id.
at pp. 1140-1141.) The court also held that if a convicted
defendant were “entitled to relief based on Banks and Clark, the
avenue for such relief is not section 1170.95, but a petition for
writ of habeas corpus.” (Id. at p. 1142.)
Mindful of the conflicts in the law, we continue to follow the
Torres line of cases. Thus, we conclude that the jury’s special
circumstances finding, made prior to Banks and Clark, “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, supra, 54

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Cal.App.5th at p. 258; see also, e.g., Torres, supra, 46 Cal.App.5th
at p. 1179.)
Alternatively, respondent asserts that even if we follow
Torres, we should nevertheless examine the record of conviction
to find appellant was a major participant in the robbery who
acted in reckless disregard of life even under the standards
articulated in Banks and Clark, and therefore find that he
remains ineligible for relief as a matter of law. (See People v.
Law (2020) 48 Cal.App.5th 811, 826, review granted July 8, 2020,
S262490; Murillo, supra, 54 Cal.App.5th at p. 169.) We disagree.
The record does not establish as a matter of law that appellant
acted with reckless indifference as a major participant during the
robbery in accordance with standards established by Banks and
Clark.
As our Supreme Court recently discussed in Lewis, “the
prima facie inquiry under [section 1170.95,] 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.’”” (Lewis, supra, 11 Cal. 5th at p. 971, quoting
Drayton, supra, 47 Cal.App.5th at p. 978; Cal. Rules of Court,
rule 4.551(c)(1)).)8 “[A] court should not reject the petitioner’s
factual allegations on credibility grounds without first conducting
an evidentiary hearing.” (Lewis, supra, 11 Cal. 5th at p. 971,

8Appellant’s opening brief was filed prior to the issuance of
Lewis. We therefore granted his request to submit a
supplemental opening brief addressing that authority.

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quoting Drayton, supra, 47 Cal.App.5th at p. 978, fn. omitted.)
However, if the record of conviction “‘contain[s] facts refuting the
allegations made in the petition,’ then ‘the court is justified in
making a credibility determination adverse to the petitioner.’”
(Ibid., quoting Drayton, at p. 979.)
The Lewis court further cautioned that while prior
appellate opinions “are generally considered to be part of the
record of conviction,” “the probative value of an appellate opinion
is case-specific, and ‘it is certainly correct that an appellate
opinion might not supply all answers.’” (Lewis, supra, 11 Cal. 5th
at p. 972, quoting People v. Woodell (1998) 17 Cal.4th 448, 457.)
Thus, in reviewing the record “at this preliminary juncture,” a
court should not engage in “‘factfinding involving the weighing of
evidence or the exercise of discretion.’” (Lewis, supra, 11 Cal. 5th
at p. 972, quoting Drayton, supra, 47 Cal.App.5th at p. 980.)
Here, appellant alleged that he was eligible for relief under
section 1170.95 because he was convicted of first degree felony
murder and he could not be now convicted of that crime because
he: (1) was not the actual killer, (2) did not aid and abet the
murder; and (3) was not a major participant in the underlying
robbery and did not act with reckless indifference to human life.
In this de novo review, under the test for prima facie evidence, we
must accept appellant’s allegations as true. (See Lewis, supra, 11
Cal.5th at p. 971.)
In order to rebut those allegations, respondent highlights
facts in the record that could establish that appellant was indeed
a major participant who acted with reckless indifference under
Banks and Clark. But an analysis of the factual record to that
degree goes beyond the limited scope of inquiry into “readily
ascertainable facts” permissible at the prima facie stage. (See In

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re Scoggins, supra, 9 Cal.5th at p. 683 [“[d]etermining a
defendant’s culpability under the special circumstances statute
requires a fact-intensive, individualized inquiry”]; Drayton,
supra, 47 Cal.App.5th at p. 980 [an example of prohibited
factfinding is “determining whether the petitioner showed
reckless indifference to human life in the commission of the
crime”].)
Nor can we take our recitation of the facts in our prior
opinion, in which we analyzed the evidence for the purpose of
determining its sufficiency to support the convictions, as
establishing that appellant is ineligible for relief as a matter of
law. Notably, respondent acknowledges some of the factual
disputes at trial, including whether appellant was present when
Drury was shot or knew that this shooting had occurred. At this
stage, we cannot engage in factfinding, the weighing of evidence,
or the exercise of discretion to determine whether a petitioner
was a major participant who acted with reckless indifference to
human life. That determination must be made following an
evidentiary hearing pursuant to section 1170.95, subdivision (d),
where appellant has the opportunity to further develop the
factual record.
We also reject respondent’s contention that appellant’s
section 1170.95 petition is barred by the superior court’s denial of
his habeas corpus petition. As appellant points out, the superior
court denied the habeas petition summarily (without issuing an
order to show cause). Thus, its ruling will not have preclusive
effect in future proceedings. (See Torres, supra, 46 Cal.App.5th
at p. 1180, fn. 4.) Moreover, the habeas petition did not litigate
the identical issue to that now raised by appellant. (See DKN
Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825 [issue

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preclusion applies only where “identical” issue was actually
litigated and necessarily decided in prior proceeding].)
Appellant’s habeas petition, like his direct appeal before it,
raised the issue of whether the jury’s special circumstance
finding was supported by substantial evidence in the trial record.
(See 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 seeks relief from his murder conviction, and
requires the prosecution to prove beyond a reasonable doubt that
he is guilty under a still-valid theory, taking into account any
new evidence admitted at the evidentiary hearing. (See People v.
Gonzalez (2021) 65 Cal.App.5th 420, 434 [rejecting claim that
section 1170.95 petition barred by prior habeas petition, finding
that section 1170.95 was “clearly designed to resolve the question
of whether a murder conviction—not a special circumstance—is
sufficiently supported”].)

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 DISPOSITION
The order denying appellant’s section 1170.95 petition is
reversed. The matter is remanded to the trial court with
directions to issue an order to show cause and proceed consistent
with section 1170.95, subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MICON, J. *

MANELLA, P. J.

CURREY, 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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