People v. Garcia CA2/2

Filed 2/4/22 P. v. Garcia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B308824

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA110432)
v.

FRANCISCO GARCIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County. Robert C. Vanderet, Judge. Affirmed.
Tracy J. Dressner, 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, Steven D. Matthews, Supervising
Deputy Attorney General, Idan Ivri and Roberta L. Davis,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
 This appeal from the denial of a petition for resentencing
under Penal Code1 section 1170.95 presents two issues we
addressed in People v. Nunez (2020) 57 Cal.App.5th 78, review
granted, January 13, 2021, S265918 (Nunez): (1) Does a jury’s
felony-murder special-circumstance finding, made before the
California Supreme Court’s decisions in People v. Banks (2015) 61
Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522
(Clark), make a defendant ineligible for relief under section
1170.95 as a matter of law? and (2) May a defendant avoid the
preclusive effect of the prior felony-murder special-circumstance
finding by challenging its validity under Banks and Clark in the
context of the 1170.95 petition?
Appellate courts are split on 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

1 Undesignated statutory references are to the Penal Code.

2
.)2 Until our Supreme Court
resolves this disagreement, we stand by our decision in Nunez,
and hold that a superior court may deny a section 1170.95
petition at the prima facie review stage 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.)

2 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 Aug. 18, 2021, S269792;
People v. Harris (2021) 60 Cal.App.5th 939, 956, review granted
Apr. 28, 2021, S267802; People v. York (2020) 54 Cal.App.5th 250,
260–261, review granted Nov. 18, 2020, S264954 (York); People v.
Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22,
2020, S262835 (Smith); 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., People v. Simmons (2021) 65
Cal.App.5th 739, 747, 749, review granted Sept. 1, 2021, S270048
(Simmons); Nunez, supra, 57 Cal.App.5th at p. 90, rev.gr.; People
v. Jones (2020) 56 Cal.App.5th 474, 478–479, review granted
Jan. 27, 2021, S265854 (Jones); People v. Allison (2020) 55
Cal.App.5th 449, 460–462 (Allison); 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).)

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 As in Nunez, we also conclude that a section 1170.95
petition is not the proper vehicle for challenging a murder
conviction by attacking, under our Supreme Court’s decisions in
Banks and Clark, the jury’s prior factual finding that the
defendant was a major participant who acted with reckless
indifference to human life. (See Nunez, supra, 57 Cal.App.5th at
pp. 83, 95–97, rev.gr.; Allison, supra, 55 Cal.App.5th at pp. 458,
461; Gomez, supra, 52 Cal.App.5th at pp. 16–17, rev.gr.; Galvan,
supra, 52 Cal.App.5th at p. 1142, rev.gr.; Murillo, supra, 54
Cal.App.5th at p. 168, rev.gr.; accord, Simmons, supra, 65
Cal.App.5th at p. 749, rev.gr.; Jones, supra, 56 Cal.App.5th at
p. 482, rev.gr.)
We also reject appellant’s claim that the superior court
violated his equal protection rights by denying appellant’s
request for a Franklin3 hearing to develop evidence for use in his
resentencing petition and for later use at a youth offender parole
hearing. Appellant was 19 years old when he committed his
offenses in 1995. While appellant’s resentencing petition under
section 1170.95 was pending, appellant filed a petition seeking a
Franklin hearing pursuant to sections 3051 and 1170,
subdivision (d)(2). The superior court correctly denied the
petition on the ground that appellant will be ineligible for a youth
offender parole hearing because he was not under the age of 18
when he committed the offense for which he was sentenced to life
in prison without the possibility of parole (LWOP). (See §§ 3051,
subd. (b)(4), 1170, subd. (d)(1) & (2).)

3 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).

4
 FACTUAL BACKGROUND4
On February 8, 1995, Pedro Arcos was living with his
girlfriend and her family in an apartment at the Maravilla
housing project in East Los Angeles. Arcos had just started a
construction job, and his truck with his tools was parked in the
parking lot on the side of the building. Arcos’s brother-in-law,
Osvaldo Venegas, came home late that night and saw appellant,
Julio Duenas, and Jaime Davalos drinking beer in the parking lot
near Arcos’s truck. All three men wore hooded black jackets.
Everyone in the residence was asleep when Venegas came
home. After he had gone inside, Venegas heard a noise and
looked outside to see Duenas and Davalos dragging a milk crate
to the backyard of a neighboring house as appellant looked on.
The crate contained Arcos’s tools from his truck. Venegas alerted
his sister and Arcos, who both went outside. Arcos spoke to the
three men and then returned to the house, angry because his
truck had been broken into and his tools taken. Venegas pointed
out where the tools were, and members of the family retrieved
the tools and brought them inside.
Venegas then saw Davalos or Duenas walk between 20 and
40 feet toward a large commercial Dumpster in the parking lot
and bend down as if to retrieve something. The man looked up to
see if anyone was watching and then bent down again, looking
three or four times. Appellant did not go near the Dumpster.

4 The factual background is drawn from the trial
transcripts, of which we have taken judicial notice, as well as the
statement of facts in the prior opinion in the direct appeal in this
case. (People v. Davalos and Garcia (Aug. 6, 1998, B109077)
[nonpub. opn.] (Garcia I).)

5
 Shortly thereafter, there was a loud knock at the front
door. The mother went to the door and heard a voice outside
cursing and demanding that the “ ‘ass hole’ ” come out. The
mother responded, “ ‘Leave us alone. He does not live here.’ ” At
that, the door was kicked open, hitting the mother and knocking
her to the floor. The mother saw that the first person to enter
had a gun in his hand, but she could not identify him.
According to Venegas, Duenas entered the house first, but
Venegas did not see Duenas with a gun. Duenas and Arcos began
to fight, and Duenas dragged the struggling Arcos into the
mother’s bedroom. While Duenas and Arcos were fighting in the
bedroom, Davalos came through the front door and hit Venegas
in the face with a closed fist. Davalos continued on into the
house. Venegas grabbed his mother and they ran out to the
backyard with the rest of the family.
Venegas was about to jump over the patio fence to get help
when appellant, who was standing outside, pointed a gun at
Venegas and said, “ ‘You are not going nowhere. Get your ass
down.’ ” Venegas went to the ground. The rest of his family was
huddled together on the ground, crying.
While appellant was holding the family at gunpoint
outside, Venegas could hear Arcos struggling and the sounds of
slugging and banging on furniture in the bedroom. He heard two
or three voices; one of them said in Spanish, “ ‘Give me your
money. All I want [sic] was the tools to get some money.’ ” Arcos
responded, “ ‘I don’t have any money. Take whatever you want.
Leave us all alone.’ ” While this was going on, appellant stood by
silently pointing his gun.
At some point, appellant left the backyard area and walked
toward the front of the house. As soon as appellant left, Venegas

6
jumped over the fence, broke into his neighbor’s house, and called
911. About three to four minutes after appellant had left the
backyard, and while Venegas was calling 911, Venegas heard two
gunshots. Then his sister yelled, “ ‘They shot him. They shot
him.’ ” The assailants left the house through the front door.
Arcos was found dead in the bedroom lying in a pool of
blood with his head in a bucket. He had sustained three gunshot
wounds, one to the head behind the right ear, one to his neck on a
trajectory to the brain, and another to his right shoulder.
PROCEDURAL BACKGROUND
Appellant and codefendant Davalos were tried and
convicted in 1996 of the first degree murder of Arcos. (§§ 187,
subd. (a).) The jury made special-circumstance findings that the
murder was committed while appellant was engaged in the
commission of a burglary and an attempted robbery. (§ 190.2,
subd. (a)(17).) Both defendants were also convicted of first degree
residential burglary (§ 459), attempted first degree robbery
(§§ 211, 664), and second degree burglary of a vehicle (§ 459),
with the finding as to all counts that a principal was armed with
a firearm (§ 12022, subd. (a)(1)). Appellant was sentenced to a
state prison term of life without the possibility of parole for the
murder conviction plus one year for the firearm enhancement,
and a concurrent two-year term for the second degree burglary.
This court affirmed appellant’s judgment of conviction on direct
appeal, rejecting, inter alia, appellant’s contention that the
evidence was insufficient to sustain the special-circumstance

7
finding that appellant was a major participant who acted with
reckless indifference to human life.5 (Garcia I, supra, B109077.)
In 2017, appellant filed a petition for writ of habeas corpus
in the superior court, claiming among other things, that the
evidence was insufficient to support the special-circumstance
findings because he was not a major participant who acted with
reckless indifference to human life within the meaning of Banks
and Clark. In a written decision the superior court rejected the
Banks and Clark claim and summarily denied the petition:
“[A]pplying Banks and Clark, the court finds the evidence
supports that Petitioner was a major participant who acted with
reckless indifference to human life.” In 2018 appellant filed a
petition for writ of habeas corpus in this court, in which he
claimed he was not a major participant in the crime with
sufficient notice of the real possibility of death to support a
robbery-murder special-circumstances finding within the
meaning of Banks and Clark. We summarily denied the petition.
(In re Francisco Garcia on habeas corpus, B292267.)
On May 28, 2019, appellant filed a petition for resentencing
under section 1170.95. The superior court appointed counsel for
appellant, and following briefing by the parties, issued a
tentative decision denying the petition on the ground that
appellant was ineligible for relief because the special-
circumstance finding established the jury had found appellant

5 The court applied the standard articulated by the United
States Supreme Court in Tison v. Arizona (1987) 481 U.S. 137,
158 (Tison) that had been incorporated in section 190.2,
subdivision (d) for determining whether a defendant who was not
the killer was a major participant in the murder who exhibited a
reckless disregard for human life.

8
was a major participant who acted with reckless indifference to
human life. Thereafter, the parties submitted supplemental
briefing in accordance with the superior court’s request. On
October 19, 2020, the superior court issued a written decision in
which it denied the petition on the ground that the felony-murder
special-circumstance finding rendered appellant ineligible for
section 1170.95 relief as a matter of law. The court further noted
that even under Banks and Clark, the evidence establishes that
appellant was a major participant who acted with reckless
indifference to human life.
While the resentencing petition was pending, appellant
petitioned the superior court for a Franklin6 hearing pursuant to
sections 3051 and 1170, subdivision (d)(2). On October 30, 2020,
the court denied the petition on the ground that appellant was
not under the age of 18 when he committed the offenses which
resulted in his LWOP sentence.
DISCUSSION
I. The Superior Court May Deny a Section 1170.95
Petition in the Prima Facie Stage of Review on the
Ground that a Petitioner Convicted of Murder with a
Felony-murder Special-circumstance Finding Is Not,
as a Matter of Law, Eligible for Resentencing Under
Section 1170.95
In order to obtain relief from his felony-murder conviction
under section 1170.95, a petitioner must make a prima facie
showing that he or she “could not presently be convicted of
murder or attempted murder because of changes to Section 188 or

6 Franklin, supra, 63 Cal.4th 261.

9
189” made by Senate Bill No. 1437.7 (§ 1170.95, subd. (a)(3),
italics added; People v. Lewis (2021) 11 Cal.5th 952, 957, 959, 971
(Lewis); People v. Gentile (2020) 10 Cal.5th 830, 842–843; Nunez,
supra, 57 Cal.App.5th at p. 90, rev.gr.) As the superior court
determined here, appellant cannot, as a matter of law, make the
requisite prima facie showing based on the jury’s felony-murder
special-circumstance findings in his case.
A. Applicable legal principals
When a petition for resentencing under section 1170.95
meets the basic requirements for relief, the superior court must
then determine whether the petitioner has made a prima facie
showing that he or she is entitled to relief, and if so, the court
must issue an order to show cause. (§ 1170.95, subds. (a)–(c);
Lewis, supra, 11 Cal.5th at p. 960.) In making this
determination, the superior court may consider the petitioner’s
record of conviction. (Lewis, 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, 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

7 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).)

10
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.)
B. Given the jury’s special-circumstance findings, the
superior court correctly determined that appellant could
still be convicted under the amended statute.
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).8 (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

8 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 1996 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.”

11
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
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 burglary- or 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 burglary or 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.” The jury found
the special circumstance true as to both underlying felonies
beyond a reasonable doubt, and thereby necessarily made the
factual findings that appellant participated in the burglary and
attempted robbery with the intent to kill Arcos, or he was a major
participant in the underlying felonies who acted with reckless
indifference to Arcos’s life. Either of these findings would allow
appellant to be convicted of first degree murder notwithstanding
Senate Bill No. 1437’s changes to section 189. (Farfan, supra, 71
Cal.App.5th at p. 954; Allison, supra, 55 Cal.App.5th at p. 457.)
Because 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 burglary and attempted

12
robbery, these findings establish appellant is ineligible for section
1170.95 relief as a matter of law. (See Farfan, supra, 71
Cal.App.5th at p. 954; Allison, supra, 55 Cal.App.5th at pp. 460–
462 [“If the prior finding shows the petitioner meets the
requirements for murder liability under amended sections 188
and 189, then it is not true that the petitioner could not be
convicted of murder because of the changes to sections 188 and
189, and the petition must be denied”]; Simmons, supra, 65
Cal.App.5th at pp. 747, 749, rev.gr.)
C. The jury’s felony-murder special-circumstance
findings preclude section 1170.95 relief even though
appellant’s conviction predated the Supreme Court’s
Banks and Clark decisions.
Appellant seeks to avoid the preclusive effect of the special-
circumstance findings to his section 1170.95 claim by challenging
the evidentiary support for those findings under our Supreme
Court’s decisions in Banks and Clark. Asserting that this court’s
prior rejection of the substantial evidence challenge to the
special-circumstance findings on direct appeal and the summary
denial of the habeas petition were “[b]ased on
[m]isrepresentations of [c]ritical [f]acts,” appellant argues the
evidence is insufficient to support the jury’s findings that he was
a major participant who acted with reckless indifference under
the criteria established by Banks and Clark. Thus, according to
appellant, the jury’s pre-Banks and Clark special-circumstance
findings do not preclude relief under section 1170.95. We
disagree.
To assist appellate review of a jury’s special-circumstance
findings, our Supreme Court set forth a nonexclusive set of
factors to aid in the determination of whether substantial

13
evidence supports the jury’s conclusion that an individual was a
“major participant” who acted with reckless disregard for human
life.9 (Banks, supra, 61 Cal.4th at p. 803; Clark, supra, 63
Cal.4th at pp. 618–622.) Following its examination of the two
United States Supreme Court decisions in Enmund v. Florida
(1982) 458 U.S. 782 and Tison, supra, 481 U.S. 137, Banks
explained that a “major participant” in a crime that results in a
murder 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). Our Supreme
Court held that the totality of the circumstances should be
examined when evaluating the extent of participation and
suggested several relevant but not dispositive factors to consider:
(1) the defendant/aider and abettor’s role in planning the robbery;
(2) his or her role in supplying or using lethal weapons; (3) his or
her awareness of the “particular dangers posed by the nature of
the crime, weapons used, or past experience or conduct of the
other participants”; (4) his or her presence at the scene of the

9 “The only necessary difference between a pre-Banks and
Clark felony-murder special-circumstance finding and one
returned after Banks and Clark arises at the level of appellate
review: If the finding was challenged on direct appeal before
Banks and Clark, appellate review of the sufficiency of the
evidence to support the finding was not informed by Banks and
Clark.” (Nunez, supra, 57 Cal.App.5th at p. 93, fn. 7, rev.gr.;
People v. Price (2017) 8 Cal.App.5th 409, 450–451 (Price) [Banks
and Clark decisions govern judicial review for sufficiency of the
evidence rather than the facts or elements a jury was required to
find].)

14
killing and thus whether he or she was “in a position to facilitate
or prevent the actual murder”; and (5) his or her actions after the
use of lethal force. (Banks, at p. 803; see Clark, at p. 611.)
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
determining whether a defendant acted with reckless indifference
to human life. (Clark, supra, 63 Cal.4th at pp. 618–622.) These
include: (1) the defendant’s use of a firearm, even if the
defendant did not kill the victim (id. at p. 618); (2) the
defendant’s physical presence at the crime, opportunities to
prevent or contain the crime and/or aid the victim (id. at p. 619);
(3) the duration of the underlying felony (id. at p. 620); (4) the
defendant’s awareness of the likelihood one of the perpetrators
will kill (id. at p. 621); and (5) any efforts by the defendant to
minimize the risks of violence during the commission of the
felony (ibid.). 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

15
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.)
Banks and Clark did not create new law, nor did they
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.” (In re Miller (2017) 14
Cal.App.5th 960, 979 & 978 [Banks and Clark “merely clarified
the ‘major participant’ and ‘reckless indifference to human life’
principles that existed when defendant’s conviction became
final”]; Nunez, supra, 57 Cal.App.5th at p. 92, rev.gr.; Allison,
supra, 55 Cal.App.5th at p. 458.)
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, supra, 57
Cal.App.5th 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. (Price, supra, 8
Cal.App.5th at pp. 450–451 [jury instructions that omit the
Banks and Clark factors are not defective]; Allison, supra, 55

16
Cal.App.5th at pp. 458–459]; Bench Notes to CALCRIM No. 703
(2020 ed.) p. 452.)
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 or she 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, 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., because all three of these cases
misinterpret the scope and effect of Banks and Clark.
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,” such findings should not be
treated “as if they resolved key disputed facts.” (Torres, supra, 46
Cal.App.5th at p. 1180, rev.gr.; Smith, supra, 49 Cal.App.5th at
p. 93, rev.gr.) York went a step further, holding that for purposes
of section 1170.95, a pre-Banks and Clark jury finding that the

17
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.; Nunez,
supra, 57 Cal.App.5th at p. 94, 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.)
Finally, 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.)
D. Appellant may not challenge his murder
conviction by relitigating prior findings of fact in a section
1170.95 proceeding.
Appellant contends that the evidence here is insufficient to
support a finding that he was a major participant who acted with
reckless indifference to human life. Acknowledging that he has
previously maintained this claim in the trial court, on direct
appeal, and in habeas petitions under Banks and Clark in the
superior court and in this court, appellant asserts that all of the
prior court rulings in this case erroneously rejected the claim on

18
the basis of “[m]isrepresentations of [c]ritical [f]acts.”
Specifically, appellant cites various conflicts and inconsistencies
in the evidence to contend that the evidence presented at trial
does not establish beyond a reasonable doubt that appellant had
a gun, that he held the family at gunpoint, or that he kept the
family from seeking help. According to appellant, a fair review of
the actual evidence presented at trial (with “significant
clarifications”) in light of the Banks and Clark factors establishes
appellant’s prima facie entitlement to relief under section
1170.95 We disagree.
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, at p. 83, rev.gr., 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.;
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

19
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
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

10 As Galvan noted, the guidance given by our Supreme
Court in Banks and Clark amounted to a sufficiently significant
clarification of the law that “courts have allowed defendants to
challenge the validity of pre-Banks and Clark special-
circumstance findings via habeas corpus, making an exception to
the rule that ordinarily bars a defendant from challenging the
sufficiency of the evidence in a habeas petition.” (Galvan, supra,
52 Cal.App.5th at p. 1141, rev.gr.; see In re Scoggins (2020) 9
Cal.5th 667, 673 [“Where a decision clarifies the kind of conduct
proscribed by a statute, a defendant whose conviction became
final before that decision ‘is entitled to post-conviction relief upon
a showing that his [or her] conduct was not prohibited by the
statute’ as construed in the decision”].) Thus, unlike its
preclusive effect with respect to his petition under section
1170.95, appellant’s direct challenge to the sufficiency of the
evidence in support of the jury’s special-circumstance findings in
Garcia I did not bar a habeas petition because this court’s

20
pp. 95–96, rev.gr.; 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”].)
Some courts have held that on appeal from the denial of a
section 1170.95 petition, a reviewing court may independently
conduct its own Banks/Clark analysis to determine whether the
special-circumstance finding was supported by substantial
evidence. (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 (Secrease).) According to these cases, if
the court determines the felony-murder special-circumstance
finding was supported by substantial evidence under the Banks
and Clark standards, the defendant is precluded from alleging
prima facie entitlement to relief under section 1170.95. (See
Secrease, at p. 236, rev.gr.; Murillo, at p. 173, rev.gr.; Law, at
p. 825, rev.gr.) On the other hand, if the felony-murder special-
circumstance finding fails analysis under Banks and Clark, an

rejection of the substantial evidence challenge was made without
the benefit of the Banks and Clark clarifications.

21
order to show cause must issue and the case must be set for an
evidentiary hearing. (Secrease, at p. 236, rev.gr.)
Here, even if we adopted the “middle ground” approach
favored by these courts (see Secrease, supra, 63 Cal.App.5th at
p. 247, rev.gr.), we would nevertheless be compelled to conclude
that appellant cannot make a prima facie showing of eligibility
for section 1170.95 relief as a matter of law for the simple reason
that substantial evidence supports the jury’s finding that
appellant was a major participant in the burglary and attempted
robbery who acted with reckless disregard for human life.
The standards under which we assess challenges to the
sufficiency of the evidence are well settled, and are the same
principles we apply to assess the sufficiency of the evidence
underlying a true finding on a special circumstance. (Banks,
supra, 61 Cal.4th at p. 804.) “ ‘When reviewing a challenge to the
sufficiency of the evidence, we ask “ ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’ ” [Citation.] Because the
sufficiency of the evidence is ultimately a legal question, we must
examine the record independently for “ ‘substantial evidence—
that is, evidence which is reasonable, credible, and of solid
value’ ” that would support a finding beyond a reasonable doubt.
[Citation.] In doing so, we ‘view the evidence in the light most
favorable to the jury verdict and presume the existence of every
fact that the jury could reasonably have deduced from that
evidence.’ [Citation.] ‘We must also “accept logical inferences
that the jury might have drawn from the circumstantial
evidence.” ’ [Citation.] We do not question the credibility of a
witness’s testimony, so long as it is ‘not inherently improbable,’

22
nor do we reconsider the weight to be given any particular item of
evidence.” (People v. Navarro (2021) 12 Cal.5th 285, 302; People
v. Brooks (2017) 3 Cal.5th 1, 57.)
Appellant’s challenge to the evidentiary support for the
major participant and reckless disregard findings hangs on his
assertion that the evidence does not support a finding beyond a
reasonable doubt that appellant had a gun or that he prevented
any family members from seeking help. But it is not for the
reviewing court to determine whether a fact has been proved
beyond a reasonable doubt; that is the province of the jury.
(People v. Reilly (1970) 3 Cal.3d 421, 425 [“The test on appeal is
whether substantial evidence supports the conclusion of the trier
of fact, not whether the evidence proves guilt beyond a reasonable
doubt”].) Here, Venegas testified at trial that appellant pointed a
gun at him and said, “ ‘You are not going nowhere. Get your ass
down.’ ” Although that testimony was impeached with Venegas’s
statement to police the night of the murder that the “little cholo”
in the back did not have a gun, and no one else in the family saw
appellant with a gun, it was the jury’s prerogative to weigh
Venegas’s credibility and accept or reject his trial testimony
about appellant’s use of a gun. As our Supreme Court has long
observed, “ ‘[i]f the circumstances reasonably justify the jury’s
findings, the reviewing court may not reverse the judgment
merely because it believes that the circumstances might also
support a contrary finding.’ ” (People v. Thompson (2010) 49
Cal.4th 79, 114, quoting People v. Ceja (1993) 4 Cal.4th 1134,
1139.)
Moreover, appellant’s claim that the evidence does not
support a finding that he kept the family from seeking help is
belied by the record. Venegas and his aunt both testified that

23
appellant ordered Venegas down from the fence when Venegas
was trying to get away to call the police, and Venegas complied.
Had Venegas been able to get away when he first tried, the police
might have arrived in time to prevent Arcos’s murder. As it was,
appellant did not leave his post allowing Venegas to call the
police until just before the shooting, when it was too late.
Finally, as the superior court explained in denying
appellant’s habeas petition, the balance of Banks and Clark
factors supports the jury’s determination that appellant was a
major participant in the burglary and attempted robbery who
acted with reckless disregard for human life. There was
substantial evidence that appellant used a gun to prevent the
victims from leaving the house to seek help. The jury could
reasonably infer that appellant was aware one of his cohorts had
retrieved a gun prior to breaking down the door to the house and
that violence would ensue. Appellant was also aware of the
dangerous nature of the crime because he, too, was armed. By
their very nature, guns are dangerous and deadly, and it is
reasonable to expect that the use of a gun would result in the
death of another. (See Clark, supra, 63 Cal.4th at p. 618.)
Appellant’s use of a gun also reflected his willingness to use
lethal force, thus supporting a finding that he acted with reckless
indifference to human life. By standing guard over the family
outside while Davalos and Duenas carried out the robbery inside,
appellant played an active role in the criminal enterprise leading
up to the murder, and fled the scene afterward.
II. The Superior Court Properly Denied Appellant’s
Petition for a Franklin Hearing
Appellant contends that section 3051 violates equal
protection by excluding people like him who were between the

24
ages of 18 and 25 when they committed murder and were
sentenced to life without the possibility of parole. He further
asserts that the superior court erred in denying the request for a
Franklin hearing because youth factors are relevant to the
question of whether, as a teenager, he acted with reckless
indifference to human life. We reject both claims.
A. Section 3051 does not violate equal protection by
treating youthful LWOP offenders over the age of 18
differently than both juvenile LWOP offenders and
youthful murderers not sentenced to LWOP.
“In response to a series of decisions addressing Eighth
Amendment limits on juvenile sentencing (see, e.g., Miller v.
Alabama (2012) 567 U.S. 460; Graham v. Florida (2010) 560 U.S.
48, 75), the Legislature enacted section 3051.” (People v. Sands
(2021) 70 Cal.App.5th 193, 197–198 (Sands); Sen. Bill No. 260
(2013–2014 Reg. Sess.); Stats. 2013, ch. 312, §§ 1, 4.) In its
current form, the statute grants to most persons convicted of
crimes committed before the age of 26 the right to a “youth
offender parole hearing” to be held 15, 20, or 25 years after the
imposition of sentence to enable the defendant to seek parole
based on his or her “diminished culpability [as a] juvenile[] as
compared to adults, the hallmark features of youth, and any
subsequent growth and increased maturity.” (§§ 3051, subds.
(a)(1) & (b), 4801, subd. (c); Stats. 2013, ch. 312, § 1; Sands, at
p. 198.)
In Franklin, our Supreme Court held that a juvenile is
entitled to an “adequate opportunity . . . to make a record of
mitigating evidence tied to his youth”—either at sentencing or,
failing that, at a separate hearing—for use at the youth offender
parole hearing to which he or she is entitled under section 3051.

25
(Franklin, supra, 63 Cal.4th at pp. 268–269, 283–284.) A few
years later in In re Cook (2019) 7 Cal.5th 439, our Supreme Court
held that an evidence preservation hearing of the type envisioned
by Franklin is available for offenders who are eligible for youthful
offender parole hearings under section 3051. (Cook, supra, at
pp. 458–459.) However, only those persons who are eligible for a
youthful offender parole hearing under section 3051 are entitled
to an evidentiary hearing under Franklin, and section 3051,
subdivision (h) makes ineligible for a youth offender parole
hearing those offenders who were over the age of 18 when they
committed their offense, if they were sentenced to LWOP or were
convicted under the One Strike or Three Strikes laws.
Appellant was 19 years old when he committed the offenses
for which he was sentenced to LWOP, and concedes that under
the current law he will not be eligible for a youth offender parole
hearing. He argues, however, that equal protection principles
require that he be treated as eligible for parole consideration.
Appellate courts throughout California have uniformly
rejected appellant’s equal protection argument, affirming orders
denying a Franklin-type hearing to a defendant sentenced to
LWOP for special-circumstance murder committed when he or
she was between 18 and 26 years old. (Sands, supra, 70
Cal.App.5th at pp. 203–205; In re Murray (2021) 68 Cal.App.5th
456, 463–464 (Murray); People v. Jackson (2021) 61 Cal.App.5th
189, 196–200 (Jackson); People v. Acosta (2021) 60 Cal.App.5th
769, 779–780; People v. Morales (2021) 67 Cal.App.5th 326, 347–
348 (Morales); In re Williams (2020) 57 Cal.App.5th 427, 435–436
(Williams); In re Jones (2019) 42 Cal.App.5th 477, 482–483.)
These courts have concluded that section 3051 does not violate
equal protection by treating young adult offenders sentenced to

26
LWOP more harshly than juvenile offenders sentenced to LWOP
because, even assuming these two groups are similarly situated,
an LWOP sentence imposed on a juvenile offender might violate
the constitution and the Legislature “could rationally decide to
remedy unconstitutional sentences but go no further.” (Sands, at
p. 204; but see Williams, at p. 435 [young adult offenders
sentenced to life without parole are not similarly situated to
those sentenced to de facto life without parole].)
Our Supreme Court has explained that courts “find a
denial of equal protection only if there is no rational relationship
between a disparity in treatment and some legitimate
government purpose. [Citation.] This core feature of equal
protection sets a high bar before a law is deemed to lack even the
minimal rationality necessary for it to survive constitutional
scrutiny. Coupled with a rebuttable presumption that legislation
is constitutional, this high bar helps ensure that democratically
enacted laws are not invalidated merely based on a court’s
cursory conclusion that a statute’s tradeoffs seem unwise or
unfair.” (People v. Chatman (2018) 4 Cal.5th 277, 288–289.)
Accordingly, we must accept any plausible rational basis without
questioning its wisdom, logic, persuasiveness, or fairness, and
regardless of whether the Legislature ever articulated it. (Id. at
p. 289.)
A sentence of life without parole may violate the Eighth
Amendment’s prohibition on cruel and unusual punishment if
imposed on a juvenile offender (Graham v. Florida (2010) 560
U.S. 48, 75; Miller v. Alabama (2012) 567 U.S. 460, 479), while
not offending the Eighth Amendment when imposed on an adult
(Sands, supra, 70 Cal.App.5th at p. 204; Morales, supra, 67
Cal.App.5th at p. 347). For this reason, we agree with the Courts

27
of Appeal which have uniformly determined that the Legislature
had a rational basis to distinguish between young adult and
juvenile offenders based on their age by choosing to remedy the
unconstitutionality of life without parole sentences for juvenile
offenders. (Sands, at p. 204; Murray, supra, 68 Cal.App.5th at
pp. 463–464 [age is rational basis for distinction]; Morales, supra,
67 Cal.App.5th at p. 347; Acosta, supra, 60 Cal.App.5th at pp.
779–780; Williams, supra, 57 Cal.App.5th at p. 435, fn. 5; see
Miller, supra, 567 U.S. at p. 481 [“[w]e have by now held on
multiple occasions that a sentencing rule permissible for adults
may not be so for children”]; Roper v. Simmons (2005) 543 U.S.
551, 574 [“[t]he age of 18 is the point where society draws the line
for many purposes between childhood and adulthood”].)
Despite finding a rational basis for the different treatment
of young adult and juvenile offenders under section 3051,
subdivision (h), many justices of the California Courts of Appeal
have called for legislative reconsideration of section 3051.
(Jackson, supra, 61 Cal.App.5th at pp. 201–202 (conc. opn. of
Dato, J.); Acosta, supra, 60 Cal.App.5th at p. 781 (maj. opn. of
Goethals, J., joined by Bedsworth, Acting P. J.); People v.
Montelongo (2020) 55 Cal.App.5th 1016, 1041 (conc. opn. of Segal,
J.); In re Jones, supra, 42 Cal.App.5th at pp. 486–487 (conc. opn.
of Pollak, P. J., joined by Streeter, J.); see also Williams, supra,
57 Cal.App.5th at p. 436, fn. 7 [acknowledging tension between
§ 3051’s parole eligibility scheme and equal protection principles];
People v. Escamilla (Mar. 18, 2021, F077568) [nonpub. opn.] (maj.
opn. of Meehan, J., joined by DeSantos, J.); People v. Smith
(Feb. 24, 2021, B305527) [nonpub. opn.] [same].) California
Supreme Court Justice Liu has echoed this invitation, urging
“ ‘the Legislature to reconsider whether our evolving knowledge

28
of brain development suggests that unalterable judgments about
individuals based on what they did between age 18 and 25 may
be unjustifiable.’ (Jackson, at pp. 201–202 (conc. opn. of Dato,
J.).)” (People v. Jackson (June 9, 2021, No. S267812)
___Cal.5th___ [2021 Cal. LEXIS 3874 at pp. *1–*3] (conc.
statement by Liu, J.).)
Unless and until the Legislature sees fit to amend section
3051, we hold that appellant is not entitled to an evidentiary
hearing under Franklin because he is not entitled to a youth
offender parole hearing under section 3051 in the first instance.
B. The superior court did not err by declining to
grant a Franklin-like hearing for purposes of the
resentencing petition under section 1170.95.
Appellant also contends the superior court erred in denying
his petition for a Franklin hearing “to gather the type of evidence
that could be used both at a youth offender parole hearing and as
part of an 1170.95 presentation on the issue of whether
appellant, as a 19-year-old, acted with reckless indifference to
human life.” As set forth above, however, appellant is ineligible
both for resentencing under section 1170.95 and for a youth
offender parole hearing under section 3051. He cites no law
suggesting he has any right to a Franklin hearing under these
circumstances. Accordingly, we find no error in the superior
court’s denial of appellant’s petition for a Franklin hearing.

29
 DISPOSITION
The orders of the superior court are affirmed.
NOT TO BE PUBLISHED.

LUI, P. J.
I concur:

CHAVEZ, J.

30
People v. Garcia, B308824

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

I agree with the majority that the trial court properly
denied defendant Francisco Garcia’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.)
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. 19.)

1 All further statutory references are to the Penal Code
unless otherwise indicated.
 Finally, I agree that the trial court properly denied
defendant’s petition for a hearing pursuant to People v. Franklin
(2016) 63 Cal.4th 261.

__________________________, J.
ASHMANN-GERST

2