People v. Richardson CA2/2

Filed 1/28/22 P. v. Richardson CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B308673

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA024559)
v.

MICHAEL RICHARDSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County. Cynthia L. Ulfig, Judge. Affirmed.
Elizabeth Richardson-Royer, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Heidi Salerno,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
 Michael Richardson appeals the denial of a petition for
resentencing under Penal Code1 section 1170.95.
Appellant was convicted in 1997 of the first degree murder
of Steven McLean (§ 187, subd. (a); count 1) and first degree
attempted robbery (§§ 664/211; count 2).2 The jury found true
the special circumstance allegation that the murder was
committed while appellant was engaged in the attempted
commission of a robbery (§ 190.2, subd. (a)(17)), as well as the
principal and personal firearm use allegations (§§ 12022, subd.
(a)(1) & 12022.5, subd. (a)(1)). Appellant admitted two prior
strike convictions, and the trial court sentenced him to life
without the possibility of parole plus a consecutive term of 25
years to life plus 15 years. (People v. Bates et al. (June 14, 1999,
B115348) [nonpub. opn.] (Richardson I).) This court affirmed the
judgment on appeal. (Ibid.)
On August 26, 2019, appellant filed a petition for
resentencing under section 1170.95. The superior court
appointed counsel for appellant and the parties submitted
briefing. Following a hearing on the petition on October 9, 2020,
the superior court determined that appellant was a major
participant who acted with reckless indifference to human life,
and was therefore ineligible for resentencing relief as a matter of
law. The court denied the petition without issuing an order to
show cause.

1 Undesignated statutory references are to the Penal Code.
2 The jury hung on count 3, the robbery of McLean, as well
as on the special circumstance allegation that the murder was
committed while appellant was engaged in the commission of a
robbery.

2
 Appellant contends: (1) The superior court improperly
engaged in factfinding at the prima facie stage of the proceeding
by weighing the evidence and resolving issues that were not
conclusively settled by the record of conviction; and (2) The
evidence at trial was insufficient to support the jury’s special
circumstance finding. We reject appellant’s contentions and
affirm the superior court’s denial of appellant’s 1170.95 petition
for resentencing.3
FACTUAL BACKGROUND4
James Orum owned a home in Northridge, which he shared
with Frank Lauifi and Steven McLean. When Orum received
$38,000 in settlement of a personal injury claim, he deposited the
money in his home safe and told some of his friends about it. One
of those friends told someone else about the money, and word
eventually reached Johnny Pedraza that Orum’s home would
make a good robbery target. Pedraza passed the information
along to appellant and his codefendant, Marino Bates.
Thereafter, appellant, Pedraza, and two others went to the house
with plans to rob the occupants. But when no one answered the

3Appellant also contends that the superior court’s finding
that appellant was ineligible for relief because he directly aided
and abetted the murder was not supported by substantial
evidence and violated appellant’s Sixth Amendment rights.
Because we conclude that the superior court correctly denied
appellant’s section 1170.95 petition on other grounds, we do not
address this contention.
4 The facts of the underlying offenses are summarized from
this court’s unpublished opinion in the direct appeal, of which we
have taken judicial notice. (Richardson I, supra, B115348; Evid.
Code, §§ 451, 459.)

3
door, the venture was abandoned.
On February 20, 1996, appellant and Bates recruited a 14-
year-old boy, Roy Molina, to help them rob Orum. That evening
around 8:00 p.m., Molina knocked on Orum’s door while
appellant and Bates, who were wearing masks and carrying
guns, hid nearby. Lauifi opened the door and Molina, holding his
leg, asked to use the telephone. As Lauifi turned to get his
cordless phone, appellant and Bates approached the door. Lauifi
slammed the door shut and locked it as appellants tried to force it
open. Lauifi grabbed a gun from Orum and locked the windows
and doors while Orum called the police.
The police arrived, searched the house, and left after about
20 minutes. Shortly thereafter, McLean returned home and upon
hearing what had happened, checked his nine-millimeter
semiautomatic gun and returned it to the pack he wore around
his waist. Lauifi left the house.
Orum was in the kitchen using the telephone when he
heard a loud slam. Suddenly Bates appeared in the kitchen
armed with a black nine-millimeter or .45-caliber automatic gun.
Holding the gun to Orum’s forehead, Bates pushed Orum down to
the floor and threatened to kill him if he moved. Sounds of two
men struggling came from another room. Bates ordered Orum
not to move and ran out of the kitchen. Orum went to his
bedroom to call the police and hid in the closet.
Police arrived to find the front door to the house ajar and
McLean lying on the living room floor. He had been fatally shot
several times from a distance of about five feet. The murder
weapon was determined to be a .45-caliber semiautomatic or
automatic gun. McLean’s nine-millimeter gun was missing.
Police found a set of keys and eight one-dollar bills outside of the

4
house. One of the keys was later found to fit the deadbolt to
Bates’s mother’s house.
DISCUSSION
I. Appellant Is Ineligible for Relief Under Section
1170.95 as a Matter of Law
A. Applicable legal principals
The Legislature enacted Senate Bill No. 1437 to “amend
the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to 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);
People v. Gentile (2010) 10 Cal.5th 830, 842; People v. Martinez
(2019) 31 Cal.App.5th 719, 723.) In addition to substantively
amending sections 188 and 189 to ensure that a person’s sentence
is commensurate with his or her criminal culpability, Senate Bill
No. 1437 added section 1170.95 to allow a person previously
convicted of murder under a felony murder or natural and
probable consequences theory to seek resentencing if he or she
could no longer be convicted of murder because of the
amendments to sections 188 and 189.5 (People v. Lewis (2021) 11
Cal.5th 952, 957, 959, 971 (Lewis)); Gentile, supra, 10 Cal.5th at
pp. 842–843).

5 As amended by Senate Bill No. 775 (Stats. 2021, ch. 551,
§ 2), section 1170.95 now also applies to persons previously
convicted of attempted murder or manslaughter under a felony
murder or natural and probable consequences theory. (§ 1170.95,
subd. (a).)

5
 When a petition for resentencing under section 1170.95
meets the basic requirements set forth in subdivision (b)(1) and
(2), the superior court must appoint counsel for petitioner if
requested (§ 1170.95, subd. (b)(3)), the prosecutor must then file a
response to the petition, and the petitioner may file a reply (id.,
subd. (c)). After the parties have had an opportunity to submit
briefing, the superior court is required to “hold a hearing to
determine whether the petitioner has made a prima facie case for
relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to
show cause.” (Ibid.; Lewis, supra, 11 Cal.5th at p. 960.)
In determining whether the petitioner has made a prima
facie case for relief, the superior court may consider the
petitioner’s record of conviction. (Lewis, supra, 11 Cal.5th at
pp. 970–971.) “The record of conviction will necessarily inform
the trial court’s prima facie inquiry under section 1170.95,
allowing the court to distinguish petitions with potential merit
from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th
at p. 971.) At the prima facie review stage, the superior court
properly denies a petition where the record of conviction
demonstrates the petitioner is ineligible for relief as a matter of
law. (Ibid.; see also People v. Mancilla (2021) 67 Cal.App.5th
854, 859, 863–864.) However, in reviewing any part of the record
to make its preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved, the superior court must take petitioner’s
factual allegations as true and may not engage in factfinding.
(Lewis, at pp. 971–972; People v. DeHuff (2021) 63 Cal.App.5th
428, 439–440.)

6
 B. The jury’s true finding on the attempted murder
special circumstance allegation makes appellant ineligible
for relief under section 1170.95 as a matter of law
With Senate Bill No. 1437’s addition of subdivision (e) to
section 189, the crime of felony murder is now subject to the same
requirements as a special circumstance finding under section
190.2, subdivision (d).6 (People v. Superior Court (Ferraro) (2020)
51 Cal.App.5th 896, 907 [“ ‘the standard under section 189,
subdivision (e)(3) for holding a defendant liable for felony murder
is [now] the same as the standard for finding a special
circumstance under section 190.2[, subdivision ](d), as the former
provision expressly incorporates the latter’ ”]; In re Taylor (2019)
34 Cal.App.5th 543, 561.) That is, to be convicted of first degree
murder under section 189 as amended, the defendant must have
been the actual killer, a direct aider and abettor who acted with
the intent to kill, or “a major participant in the underlying felony
[who] acted with reckless indifference to human life, as described

6 Except for the deletion of the word “felony” in the 1998
amendment to the statute, section 190.2, subdivision (d) remains
unchanged from the version in effect in 1997 when appellant was
convicted, which provided: “[E]very person, not the actual killer,
who, with reckless indifference to human life and as a major
participant, aids, abets, counsels, commands, induces, solicits,
requests, or assists in the commission of a felony enumerated in
paragraph (17) of subdivision (a) which [felony] results in the
death of some person or persons, and who is found guilty of
murder in the first degree therefor, shall be punished by death or
imprisonment in the state prison for life without the possibility of
parole if a special circumstance enumerated in paragraph (17) of
subdivision (a) has been found to be true under Section 190.4.”

7
in subdivision (d) of Section 190.2.” (§ 189, subd. (e); People v.
Farfan (2021) 71 Cal.App.5th 942, 954 (Farfan).)
Here, appellant’s jury was instructed pursuant to
CALJIC No. 8.80.1 that if it found appellant was not the actual
killer, it could not find the attempted robbery-murder special
circumstance true unless it was satisfied beyond a reasonable
doubt that appellant intended to kill or he was a major
participant in the attempted robbery, and, when he participated
in the crime, he acted with reckless indifference to human life.
The jury was further instructed that “[a] defendant acts with
reckless indifference to human life when that defendant knows or
is aware that his acts involve a grave risk of death to an innocent
human being.”
Relief under section 1170.95 is available only if the
petitioner makes a prima facie showing that he or she “could not
be convicted of first or second degree murder because of changes
to Section 188 or 189” made by Senate Bill No. 1437. (§ 1170.95,
subd. (a)(3), italics added; Farfan, supra, 71 Cal.App.5th at
p. 954; People v. Allison (2020) 55 Cal.App.5th 449, 457 (Allison).)
But the jury’s special circumstance finding in this case means it
found beyond a reasonable doubt that appellant either had the
intent to kill or he acted with reckless indifference to human life
as a major participant in the attempted robbery. The jury’s true
finding on the special circumstance therefore establishes
appellant is ineligible for section 1170.95 relief as a matter of
law. (See Farfan, at p. 954; Allison, at pp. 460–462; People v.
Simmons (2021) 65 Cal.App.5th 739, 747, 749, review granted
Sept. 1, 2021, S270048 (Simmons).)
As we noted in our decision in Farfan, supra, 71
Cal.App.5th at pages 949 and 955, appellate courts are split on

8
the question of whether a pre-Banks and Clark felony-murder
special circumstance finding makes a petitioner ineligible for
section 1170.95 relief as a matter of law. The issue is pending
before our Supreme Court in People v. Strong, review granted
March 10, 2021, S266606 [“Does a felony-murder special
circumstance finding (Pen. Code, § 190.2, subd. (a)(17)) made
before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark
(2016) 63 Cal.4th 522 preclude a defendant from making a prima
facie showing of eligibility for relief under Penal Code section
1170.95?”] ( [as of May 26, 2021], archived at
.)7 Until our Supreme Court

7 The list of cases on both sides of this split continues to
grow. Those cases in which courts have determined a special
circumstance finding does not necessarily preclude relief under
section 1170.95 include: People v. Gonzalez (2021) 65
Cal.App.5th 420, 431, review granted August 18, 2021, S269792;
People v. Harris (2021) 60 Cal.App.5th 939, 956, review granted
April 28, 2021, S267802 (Harris); People v. York (2020) 54
Cal.App.5th 250, 260–261, review granted November 18, 2020,
S264954 (York); 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
(Torres). Other courts hold that a jury’s special circumstance
finding renders a petitioner ineligible as a matter of law for relief
under section 1170.95. (See, e.g., Simmons, supra, 65
Cal.App.5th at pp. 747, 749, rev.gr.; People v. Nunez (2020) 57
Cal.App.5th 78, 90, review granted Jan. 13, 2021, S265918
(Nunez); People v. Jones (2020) 56 Cal.App.5th 474, 478–479,

9
resolves this disagreement, we stand by our decision in Nunez
holding that a superior court may deny a section 1170.95 petition
after the prima facie review on the ground that a defendant
convicted of murder with a felony-murder special-circumstance
finding (§ 190.2, subd. (a)(17)) is not, as a matter of law, eligible
for resentencing under section 1170.95. (Nunez, supra, 57
Cal.App.5th at pp. 83, 90–92, rev.gr.)
Appellant contends that the superior court improperly
resolved disputed questions of fact and thereby denied the
petition at the prima facie stage in error. Although the superior
court did not clearly rely on the jury’s special circumstance
finding to deny appellant’s petition, the ruling was nevertheless
correct. At the prima facie stage, the superior court was entitled
to examine the record of conviction to determine appellant’s
eligibility for relief under section 1170.95 as a matter of law.
(Lewis, supra, 11 Cal.5th at pp. 970–971.) Where, as in this case,
such review instantly reveals the existence of a special
circumstance finding establishing an intent to kill or major
participation in the crime with reckless disregard for human life,
the superior court properly denies the petition. Thus, whether
the superior court reached its conclusion that appellant is
ineligible for resentencing as a matter of law through the jury’s
special circumstance finding or as a result of impermissible

review granted Jan. 27, 2021, S265854 (Jones); Allison, supra, 55
Cal.App.5th at pages 460–462; People v. Gomez (2020) 52
Cal.App.5th 1, 14–15, 17, review granted Oct. 14, 2020, S264033
(Gomez); People v. Galvan (2020) 52 Cal.App.5th 1134, 1141,
review granted Oct. 14, 2020, S264284 (Galvan); People v.
Murillo (2020) 54 Cal.App.5th 160, 168, review granted Nov. 18,
2020, S264978 (Murillo).)

10
factfinding, the court ruled correctly. As our Supreme Court has
long recognized, “a ruling will not be disturbed on appeal merely
because it was given for a wrong reason, if the ruling would
otherwise be correct ‘ “ ‘upon any theory of the law applicable to
the case,’ ” ’ and ‘ “ ‘regardless of the considerations which may
have moved the trial court to its conclusion.’ ” ’ ” (People v.
Hopson (2017) 3 Cal.5th 424, 459.)
II. Appellant May Not Challenge the Sufficiency of
the Evidence in Support of the Special
Circumstance Finding Under Section 1170.95
Appellant seeks to avoid disqualification for relief under
section 1170.95 by challenging the sufficiency of the evidence
supporting the jury’s special circumstance finding. He thus
maintains that the evidence was insufficient to prove he was even
involved in the second robbery attempt during which McLean
was killed, and argues that under the Supreme Court decisions in
Banks8 and Clark,9 the evidence cannot sustain a finding that
appellant was a major participant in the attempted robbery who
acted with reckless indifference to human life. These arguments
fail: This court’s prior decision in the direct appeal from the
conviction squarely rejected appellant’s substantial evidence
challenge; the felony-murder special circumstance finding
precludes section 1170.95 relief even though appellant’s
conviction predated Banks and Clark; and a petition under
section 1170.95 does not provide a mechanism for a defendant to
challenge his or her murder conviction by attacking prior findings
of fact.

8 People v. Banks (2015) 61 Cal.4th 788 (Banks).
9 People v. Clark (2016) 63 Cal.4th 522 (Clark).

11
 A. Appellant’s substantial evidence challenge to his
conviction for first degree special circumstance murder
has already been made and rejected in appellant’s direct
appeal from the judgment
In this appeal from the denial of his section 1170.95
petition, appellant asserts that the available evidence from trial
suggests that he was not involved in the second robbery attempt
at all. But in his direct appeal from the judgment, appellant
made the very same claim, challenging the sufficiency of the
evidence “to establish that he was present at Orum’s home and/or
that he acted with the reckless indifference requisite to a special
circumstance finding pursuant to section 190.2, subdivision (d).”
(Richardson I, supra, B115348.) This court disagreed:
“The jury reasonably could infer from the evidence adduced
at trial that Richardson first accompanied Bates to Orum’s home
for the purpose of committing an armed robbery which was
thwarted by Lauifi’s slamming the door and locking it. The jury
also reasonably could infer that Richardson returned to the house
with Bates shortly thereafter, entered it for the same purpose
and engaged in a struggle with McLean which ended when Bates
entered the room and shot the victim. By participating in an
armed home-invasion robbery attempt at premises where the
occupants were present, Richardson acted with reckless disregard
for human life.
“Richardson reads Pedraza’s testimony as establishing that
appellants had returned to Pedraza’s home prior to the second
entry culminating in McLean’s murder, and that Richardson
could not have made the trip back to Orum’s home in time to
commit the murder. On the contrary, Pedraza described one
return by appellants in which they referred to the first,

12
attempted robbery by stating Molina had run off and they should
have kicked in the door, and to the second robbery-murder
incident by stating a gun had gone off at Orum’s house. The
evidence amply supports Richardson’s convictions.”
(Richardson I, supra, B115348.)
This court’s determination that substantial evidence
supported a finding that appellant was present at the attempted
robbery during which McLean was killed is now law of the case.
(People v. Gray (2005) 37 Cal.4th 168, 196–197 [law of the case
doctrine precludes multiple appellate review of the same issue in
a single case “where the point of law involved was necessary to
the prior decision and was ‘ “actually presented and determined
by the court” ’ ”].)
B. The jury’s felony-murder special circumstance
finding precludes section 1170.95 relief even though
appellant’s conviction predated the Supreme Court’s
Banks and Clark decisions
Appellant argues that the evidence does not support a
finding that he was a major participant in the second robbery
attempt who acted with reckless indifference to human life as
those concepts were clarified first by the United States Supreme
Court in Enmund v. Florida (1982) 458 U.S. 782 (Enmund) and
Tison v. Arizona (1987) 481 U.S. 137 (Tison), and later by the
California Supreme Court in Banks and Clark. Thus, according
to appellant, the jury’s pre-Banks and Clark special-circumstance
finding does not preclude relief under section 1170.95. We
disagree. Banks and Clark did not create new law, but instead
“merely clarified the ‘major participant’ and ‘reckless indifference
to human life’ principles that existed when defendant’s conviction
became final.” (In re Miller (2017) 14 Cal.App.5th 960, 978

13
(Miller); Allison, supra, 55 Cal.App.5th at p. 458; Nunez, supra,
57 Cal.App.5th at p. 92, rev.gr.; Jones, supra, 56 Cal.App.5th at
p. 482, rev.gr.)
Following its examination of the two United States
Supreme Court decisions in Enmund and Tison, our Supreme
Court set forth a nonexclusive set of factors to aid the
determination of whether an individual was a “major participant”
in a crime. (Banks, supra, 61 Cal.4th at pp. 803–805.) The court
held that the totality of the circumstances should be examined
when evaluating the extent of participation, explaining that a
“major participant” in a robbery is one whose “personal
involvement” is “substantial.” (Banks, at p. 802.) While such a
participant “need not be the ringleader” (People v. Williams
(2015) 61 Cal.4th 1244, 1281), his or her involvement must be
“greater than the actions of an ordinary aider and abettor”
(Banks, at p. 802).
A defendant acts with reckless indifference to human life
when he or she “has ‘ “knowingly engag[ed] in criminal activities
known to carry a grave risk of death.” ’ ” (Banks, supra, 61
Cal.4th at p. 801.) Specifically, “[t]he 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.” (Ibid.) In Clark, the court put it this way: “ ‘reckless
indifference’ . . . encompasses a willingness to kill (or to assist
another in killing) to achieve a distinct aim, even if the defendant
does not specifically desire that death as the outcome of his
actions.” (Clark, supra, 63 Cal.4th at p. 617.)
To assist appellate review of a jury’s reckless indifference
finding, Clark set out a series of considerations relevant to

14
determining whether a defendant acted with reckless indifference
to human life. (Clark, supra, 63 Cal.4th at pp. 618–622.) But
“[j]ust as [the court] said of the factors concerning major
participant status in Banks, ‘[n]o one of these considerations is
necessary, nor is any one of them necessarily sufficient’ ” to
establish whether a defendant was a major participant who acted
with reckless indifference to human life. (Clark, at p. 618,
quoting Banks, supra, 61 Cal.4th at p. 803.)
Not only did the Banks and Clark decisions mark no
change in the law, they also did not fundamentally change the
meaning of the phrases “major participant” and “reckless
indifference to human life.” (Allison, supra, 55 Cal.App.5th at
p. 458; Nunez, supra, 57 Cal.App.5th at p. 92, rev.gr.; Jones,
supra, 56 Cal.App.5th at p. 484, rev.gr.) Rather, the high court in
those cases “simply stated what section 190.2, subdivision (d) has
always meant.” (Miller, supra, 14 Cal.App.5th at p. 979.) Indeed,
our Supreme Court has not required any new jury instruction on
the clarifications, and no mandatory language or material
changes have been made to the CALJIC or CALCRIM special-
circumstance instructions since Banks and Clark were decided.
(Compare CALJIC No. 8.80.1 (1996 rev.) (6th ed. 1996) with
CALJIC No. 8.80.1 (Fall 2015 ed.); see also Nunez, at p. 92,
rev.gr.; Gomez, supra, 52 Cal.5th at p. 14, fn. 6, rev.gr.
[CALCRIM No. 703 before Banks and Clark]; CALCRIM No. 703
(2020 ed.).) Rather, while both CALJIC No. 8.80.1 and
CALCRIM No. 703 now include optional language drawn from
Banks and Clark regarding the factors a jury may consider,
neither Banks nor Clark held that the trial court has a sua
sponte duty to instruct on those factors. (People v. Price (2017) 8
Cal.App.5th 409, 450–451 (Price) [jury instructions that omit the

15
Banks and Clark factors are not defective]; Allison, at pp. 458–
459; Bench Notes to CALCRIM No. 703 (2020 ed.) p. 452.)
In short, as we observed in Nunez, “the felony-murder
special-circumstance instructions given post-Banks and Clark do
not necessarily differ at all from pre-Banks and Clark felony-
murder special-circumstance instructions⎯the factors, issues,
and questions the post- and pre-Banks and Clark juries consider
to make the [major participant/reckless indifference] finding are
exactly the same. Accordingly, whether a jury made a post- or
pre-Banks and Clark [major participant/reckless indifference]
finding, that finding establishes as a matter of law the
defendant’s ineligibility for relief under section 1170.95 because
he was found either to have participated in the specified felony
with the intent to kill, or he was a major participant who acted
with reckless indifference to human life and could still be
convicted of murder notwithstanding the changes to section 189.”
(Nunez, supra, 57 Cal.App.5th at p. 93, fn. omitted, rev.gr.)
In this regard, we reiterate our disagreement with the
decisions in Torres, supra, 46 Cal.App.5th 1168, rev.gr., Smith,
supra, 49 Cal.App.5th 85, rev.gr., and York, supra, 54
Cal.App.5th 250, rev.gr. (see also Harris, supra, 60 Cal.App.5th
at pp. 958–959, rev.gr.) because all of these cases misinterpret
the scope and effect of Banks and Clark. (Nunez, supra, 57
Cal.App.5th at p. 93, rev.gr.; Jones, supra, 56 Cal.App.5th at
p. 484, rev.gr.; Allison, supra, 55 Cal.App.5th at pp. 458–459.)
According to these courts, because “the factual issues that
the jury was asked to resolve [before the Banks and Clark
decisions] are not the same factual issues our Supreme Court has
since identified as controlling” (Smith, supra, 49 Cal.App.5th at
p. 93, rev.gr.), such findings should not be treated “as if they

16
resolved key disputed facts” (ibid.; Torres, supra, 46 Cal.App.5th
at p. 1180, rev.gr.). York went a step further, holding that for
purposes of section 1170.95, a pre-Banks and Clark jury finding
that the defendant acted with reckless indifference to human life
as a major participant should be treated as if that finding simply
did not exist. (York, supra, 54 Cal.App.5th at p. 258, rev.gr.)
However, contrary to these decisions’ holdings, we find “no
basis to conclude as a general matter that a pre-Banks and Clark
jury was instructed differently than a post-Banks and Clark jury,
or resolved different factual issues, answered different questions,
or applied different standards. The mandatory instructions did
not change, and the pre-Banks and Clark jury necessarily
resolved the same factual issues beyond a reasonable doubt that
a post-Banks and Clark jury would necessarily resolve beyond a
reasonable doubt.” (Nunez, supra, 57 Cal.App.5th at p. 94,
rev.gr.; Jones, supra, 56 Cal.App.5th at p. 484, rev.gr.; Allison,
supra, 55 Cal.App.5th at pp. 458–459.)
We therefore reject the approach taken by the courts in
Torres, Smith, and York, and decline to proceed as though the
jury’s special-circumstance findings simply did not exist. Indeed,
as we noted in Nunez, “jury findings in a final judgment are
generally considered to be valid and binding unless and until
they are overturned by collateral attack, regardless of whether
they were subjected to appellate review. Nothing in Banks or
Clark supports the automatic invalidation or disregard of such
findings by a properly instructed jury.” (Nunez, supra, 57
Cal.App.5th at p. 94, rev.gr.)

17
 C. Appellant may not challenge his murder conviction
by relitigating prior findings of fact in a section 1170.95
proceeding
We have previously held that a jury’s findings that the
defendant was a major participant who acted with reckless
disregard for human life may not be relitigated in a section
1170.95 proceeding. (Nunez, supra, 57 Cal.App.5th at pp. 83, 95–
96, rev.gr.) In so holding we have agreed with other appellate
courts that a section 1170.95 petition is not the appropriate
vehicle for a person convicted prior to Banks and Clark to
challenge a felony-murder special circumstance, which must first
be challenged by way of habeas corpus or other available
collateral attack. (Nunez, supra, at p. 83, citing Allison, supra, 55
Cal.App.5th at pp. 458, 461; Murillo, supra, 54 Cal.App.5th at
p. 168, rev.gr.; Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr.;
and Gomez, supra, 52 Cal.App.5th at pp. 16–17, rev.gr.; accord,
Simmons, supra, 65 Cal.App.5th at pp. 748–749, rev.gr.; Jones,
supra, 56 Cal.App.5th at p. 482, rev.gr.)
Senate Bill No. 1437 contains no indication in its text or
history that the Legislature intended to permit defendants to
challenge their murder convictions by attacking prior findings of
fact. Indeed, the Legislature made plain that its purpose in
enacting section 1170.95 was to give defendants the benefit of the
amendments to sections 188 and 189 in the absence of a factual
basis for a murder conviction in light of the statutory revisions.
As the court in Allison observed, “subdivision (a)(3) of section
1170.95 says nothing about erroneous prior findings or the
possibility of proving contrary facts if given a second chance.
Rather, it requires that the petitioner could not be convicted of
murder because of the changes to sections 188 and 189, not

18
because a prior fact finder got the facts wrong.” (Allison, supra,
55 Cal.App.5th at p. 461.)
Accordingly, as we held in Nunez, a defendant whose pre-
Banks and Clark special-circumstance finding cannot withstand
post-Banks and Clark scrutiny should seek relief by way of a
petition for habeas corpus in which the petitioner would properly
bear the burden of proof.10 (Nunez, supra, 57 Cal.App.5th at
pp. 95–96; Jones, supra, 56 Cal.App.5th at pp. 482–483, rev.gr.;
Murillo, supra, 54 Cal.App.5th at p. 168, rev.gr.; Galvan, supra,
52 Cal.App.5th at p. 1142, rev.gr. [“If [appellant] is 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”].)

10 In light of our holding, we need not address respondent’s
alternative contention that a Banks/Clark legal analysis to
determine whether the special circumstance finding was
supported by substantial evidence may be conducted by the
superior court as part of the prima facie analysis or on de novo
review by the reviewing court. (See People v. Law (2020) 48
Cal.App.5th 811, 822, 825, review granted July 8, 2020, S262490;
Murillo, supra, 54 Cal.App.5th at pp. 169–173, rev.gr.; see also
People v. Pineda (2021) 66 Cal.App.5th 792, 795, 801–802, review
granted Sept. 29, 2021, S270513; People v. Secrease (2021) 63
Cal.App.5th 231, 236, 255–256 [“As is always the case with
sufficiency-of-the-evidence review, the application of Banks and
Clark to a given set of facts ultimately presents an issue of law”],
review granted June 30, 2021, S268862.)

19
 DISPOSITION
The superior court’s order denying relief under Penal Code
section 1170.95 is affirmed.
NOT TO BE PUBLISHED.

LUI, P. J.
I concur:

CHAVEZ, J.

20
People v. Richardson, B308673

ASHMANN-GERST, J., Concurring in the judgment.

I agree with the majority that the trial court properly
denied defendant Michael Richardson’s petition for resentencing
under Penal Code section 1170.95.1 In finding the special
circumstance (§ 190.2, subd. (a)(17)) true, the jury necessarily
found either that defendant was an aider and abettor who
harbored an intent to kill or a major participant who acted with
reckless indifference to human life, findings that would make him
guilty of murder under the amended law. (See §§ 189, subd.
(e)(3), 1170.95, subd. (a).) Either finding makes defendant
ineligible as a matter of law. (People v. Farfan (2021)
71 Cal.App.5th 942, 954 [“the jury’s true finding on the special
circumstance establishes appellant is ineligible for section
1170.95 relief as a matter of law”].)
And, the jury’s special circumstance finding is supported by
substantial evidence through the prism of People v. Banks (2015)
61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. (See,
e.g., People v. Secrease (2021) 63 Cal.App.5th 231, 255, review
granted June 30, 2021, S268862.)

1 All further statutory references are to the Penal Code
unless otherwise indicated.
 Pursuant to my concurring opinion in People v. Nunez
(2020) 57 Cal.App.5th 78, 97–99, review granted January 13,
2021, S265918, I do not join in the majority’s conclusion that the
jury’s finding “must first be challenged by way of habeas corpus
or other available collateral attack.” (Maj. Opn., at p. 18.)

__________________________, J.
ASHMANN-GERST

2