People v. Pereles CA6

Filed 3/10/22 P. v. Pereles CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H049218
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 186103)

v.

EDDY JAY PERELES,

Defendant and Appellant.

I. INTRODUCTION
In 1997, a jury convicted defendant Eddy Jay Pereles of first degree murder
(Pen. Code, § 187),1 conspiracy to commit robbery (§ 182, subd. (a)(1)), and second
degree robbery (§§ 211, 212.5, subd. (b)). The jury found true the special circumstance
allegation that defendant committed the murder during a robbery (§ 190.2, subd. (a)(17)),
and the allegation that a principal was armed with a firearm (§ 12022, subd. (d)) during
the commission of the murder and the robbery. The superior court sentenced defendant
to life without the possibility of parole, with a consecutive two-year term for the arming
enhancement associated with the murder count. In 2000, this court ordered a restitution
fine stricken and affirmed the judgment in case No. H018342.2

1
All further statutory references are to the Penal Code unless otherwise indicated.
2
This court took judicial notice of the opinion in case No. H018342 by separate
order. (See Evid. Code, § 452.)
 Defendant subsequently filed a petition for writ of habeas corpus, contending that
there was insufficient evidence to support the felony-murder special circumstance finding
under People v. Banks (2015) 61 Cal.4th 788 (Banks). The superior court denied the
petition in 2017, concluding that defendant’s conduct supported the felony-murder
special circumstance finding in light of the factors discussed by the California Supreme
Court in Banks and People v. Clark (2016) 63 Cal.4th 522 (Clark).
In 2021, defendant filed a petition for resentencing pursuant to section 1170.95,
which was enacted by the Legislature through its passage of Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (Senate Bill 1437). (Stats. 2018, ch. 1015, § 4.) As relevant here,
section 1170.95 allows individuals convicted of felony murder to petition the superior
court to vacate the conviction under recent changes to the law that limited the scope of
the felony murder rule to individuals who were major participants in the underlying
felony and acted with reckless indifference to human life. The superior court denied the
petition, finding that “readily ascertainable facts from the record demonstrate that
[defendant] is ineligible for relief as a matter of law,” based on the jury’s felony-murder
special circumstance finding and the superior court’s denial of defendant’s habeas
petition.
Defendant challenges the denial of his section 1170.95 petition, contending that
the superior court erred because it relied on the record of conviction to deny the petition
without first appointing counsel. Defendant further contends that the court erred in
relying on the habeas ruling to deny the section 1170.95 petition, as the habeas petition
was “summarily denied” and required a higher showing to establish a prima facie case.
The Attorney General concedes that the superior court should have appointed defendant
counsel but contends that the error was harmless because the record establishes that
defendant is ineligible for section 1170.95 relief as a matter of law “based on the
undisturbed special circumstance finding.”

2
 For reasons that we will explain, we conclude that the trial court erred when it
denied the petition without appointing defendant counsel but that the error was harmless.
Accordingly, we affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background3
1. Robbery and Murder of David Liu
On November 13, 1994, Stanford graduate student David Liu died from a single
gunshot wound. The .22-caliber bullet entered his back and perforated his aorta, lung,
and liver. The shooting occurred in front of an apartment complex on Tanland Drive in
Palo Alto. Defendant was a former resident of the apartment complex.
Shortly before Liu was shot, a high school student saw two Black men standing
next to his car, which was in the parking area of the apartment complex. The student
greeted the men, and one of them commented that the student appeared to be scared. One
of the men was wearing a baseball cap; the other was wearing a Raiders jacket. One was
short (about 5’8” or 5’9”) and chubby; the other was tall (about 6’2” or 6’3”) and
skinnier. The student helped the police make a sketch of the shorter man, whom he
subsequently identified as Larry Paul. Evidence at trial established that defendant, who is
Black, was 6’2” to 6’3” tall and weighed between 150 and 155 pounds.
An 18-year-old living on the second floor of the Tanland apartment complex heard
scuffling outside on the night of November 13, 1994. He looked out his window and saw
Liu lying face down on the ground in front of a car. Two Black men were nearby: one
was standing above the victim; the other was crouched down or kneeling. The standing
man was holding a wallet and keys. He was kicking the victim. The crouching man was
looking around. The standing man was about 6 feet tall, had very short hair, and was

3
The factual background is a summary of the facts stated in this court’s opinion in
case No. H018342.

3
wearing a Raiders jacket. The crouching man was holding a gun and wearing a hat or a
hood.
After the two men left, the 18-year-old went outside. He saw that Liu had been
shot. He placed Liu on his side to let blood drain from his mouth, then ran to a nearby
apartment, where he told the residents to call 9-1-1.
2. Robbery of Sergio Barajas
On October 22, 1994, a few weeks before the Liu robbery/homicide, Sergio
Barajas was assaulted and robbed in front of a video store on University Avenue in East
Palo Alto. Police found Barajas bleeding from a head wound. Barajas claimed two
Black males had attacked and robbed him after he had parked his car.
Police investigated the Barajas robbery and the Liu robbery/homicide as one of a
series of similar robberies. During their investigation, they obtained information linking
Paul and defendant to some of the robberies. The police discovered Paul’s bloody
clothing in A.L.’s4 apartment.
3. Defendant’s Police Interviews
San Mateo County Sheriff’s deputies went to defendant’s residence on January 10,
1995, and defendant agreed to come to the Hall of Justice, where he was placed in an
interview room and Mirandized.5
Defendant was first questioned about the Barajas robbery. Defendant indicated
that he knew about the robbery, but repeatedly denied involvement, claiming that he was
at his mother’s house all day. Defendant stated that Paul told him that the police were
looking for them both.
After a break in the interview, defendant told the officers about his involvement in
a robbery on Woodland Avenue in East Palo Alto. He explained that he and Paul had

4
Pursuant to California Rules of Court, rule 8.90(b)(10), we refer to A.L. by her
initials.
5
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

4
been standing outside of their friend A.L.’s house when a car stopped in front of them.
Paul approached the car, and the two men in the car indicated they wanted drugs. Paul
went into the house and obtained some soap that had been chopped up to resemble
narcotics. He gave it to the men in the car and the men gave him money. As Paul walked
away, one of the men got out of the car and followed him, saying, “[C]ome here, come
here, this ain’t real.” Paul turned around and hit the man with his fist, causing the man to
fall onto the car and then onto the ground, where he bled and convulsed. Paul took the
victim’s wallet, and then he and defendant ran into A.L.’s house, where Paul changed his
clothes.
The officers told defendant that they were investigating a different robbery, which
had occurred on University Avenue and involved a Mexican victim who was hit with a
pipe or shotgun and robbed of his wallet as he prepared to make a phone call. Defendant
continued to deny any involvement in the Barajas robbery and reiterated that he had
heard about it from Paul. The interview about the Barajas robbery ended.
A Palo Alto detective then interviewed defendant about Liu’s robbery/homicide.
Defendant stated, “About a week after Halloween, um, there was a murder that I was
involved in, but didn’t . . . do nothing. There was a Chinese man that was shot by . . .
[Paul].” Defendant continued, “I didn’t know he was going to be shot. It, it didn’t
happen the way it was supposed to.” He explained, “I just thought he’s just gonna beat
him up and just go run through his pockets like he did all the other times.”
The detective asked defendant to confirm that he had previously admitted that
“[Paul] had conducted three separate robberies with you present where he’d done the
same thing. He’d hit somebody and taken their property.” Defendant said that was true.
He then confirmed that he had been present, but not involved in, the Barajas robbery, the
robbery of three people with a broken-down car, and the robbery of the two men in the
car on Woodland. Defendant stated that Paul had not given him any of the proceeds from
any of the robberies.

5
 Defendant then provided information about the Liu robbery/homicide. He met
Paul at about 4:30 p.m. They went to Paul’s grandmother’s house, where Paul obtained
his gun. Paul told defendant that he wanted to do a robbery. They walked over to the
Tanland Apartment complex, where they interacted with the high school student.
Defendant stated, “My understanding was, we’s just supposed to pull a lick. Not
hurt no one.” He continued, “Not hurt anyone in no kind of way. Um . . . he . . . robbed
somebody, the Chinese man. He beat him. While I was standing there watching, and
then he just, shot him. Shot the uh, Chinese man. For no reason after he’s already beat
up. After he really had beat him up.” Defendant indicated that he felt sorry that Liu had
died. He expressed his wish that “it would of happened differently.” He had not spoken
with Paul since the homicide.
Defendant described what he was wearing at the time: a Miami hat and a gray and
maroon derby coat, similar to a Raiders jacket. Paul was wearing all black clothing.
After the shooting, he asked Paul why he had shot Liu. Paul replied that he “just did it.”
Paul did not give defendant any money from the robbery, or any of the items he took
from Liu, which included a set of keys, a car alarm, and a wallet.
In a subsequent interview, defendant provided details about the Barajas robbery.
He and Paul had been at A.L.’s house. Paul picked up a pipe and said, “I’m gonna try to
find me a lick.” They began to walk around the neighborhood, ending up at a video store
on University Avenue. Paul had the pipe underneath his jacket. Barajas drove up in a
pick-up truck, parked, and approached the telephone. Paul stated, “This is the lick.”
Defendant looked around “to make sure it was okay” and then said, “[I]t’s cool.” Paul
walked up behind the victim and hit him in the head with the pipe several times. When
the victim fell down, Paul looked through the pick-up truck and went through the
victim’s pockets. Paul and defendant then returned to A.L.’s house, where Paul changed
his clothes.

6
 Next, defendant provided information about the robbery of the three people with
the broken-down car. He and Paul had been standing in front of A-1 Liquors on
University Avenue. Paul, who was armed with a gun, believed the victims “probably had
money.” He walked up to them and told them to “break themselves.” He then began
“pistol whipping” the male. Paul went through the male’s pockets and threatened the
females with his gun.
The officers asked defendant what he was thinking when Paul committed the
robberies and whether he had ever told Paul to stop. Defendant explained, “I can’t stop
him. Can’t say nothing to him. . . . He gets a rush off. Violence is him. . . .” Defendant
described an incident where Paul had beat up a “dope fiend that had ten dollars.”
Defendant subsequently pled no contest to charges of assault with a deadly
weapon and second degree robbery of Barajas. As part of a plea bargain, charges related
to the University Avenue robbery were dropped.
Defendant presented evidence at trial. A professor testified on police tactics used
to elicit a confession. Defendant’s mother testified that defendant and defendant’s
girlfriend were watching videos at her house all day on the date of Liu’s
robbery/homicide. A defense investigator testified that she was unable to subpoena
defendant’s girlfriend for trial.
B. Procedural History
1. Trial Proceedings and Direct Appeal
A jury convicted defendant of first degree murder (§ 187), conspiracy to commit
robbery (§ 182, subd. (a)(1)), and second degree robbery (§§ 211, 212.5, subd. (b)). The
jury found true the special circumstance allegation that defendant committed the murder
during a robbery (§ 190.2, subd. (a)(17)), and the allegation that a principal was armed
with a firearm (§ 12022, subd. (d)) during the commission of the murder and the robbery.
The superior court sentenced defendant to life without the possibility of parole, with a
consecutive two-year term for the arming enhancement associated with the murder count.

7
 Defendant contended on appeal that (1) his confession was coerced and should
have been suppressed; (2) trial counsel was ineffective for failing to seek suppression of
the confession on the ground that defendant’s Miranda waiver was invalid because the
police affirmatively misrepresented the scope of the interrogation; (3) the trial court erred
by excluding a conversation between defendant and his girlfriend; (4) trial counsel was
ineffective for failing to set forth additional grounds for the admission of defendant’s
conversation with his girlfriend and for failing to seek admission of a redacted version of
the conversation; (5) the trial court erred by instructing the jury on reasonable doubt
pursuant to CALJIC No. 2.90 (6th ed. 1996); and (6) the trial court erred by imposing a
restitution fine pursuant to section 1202.45.
In 2000, this court ordered the restitution fine stricken and affirmed the judgment.
2. Habeas Proceedings
Defendant filed a petition for writ of habeas corpus, contending that there was
insufficient evidence to support the special circumstance finding under Banks.6
The superior court denied the petition in 2017, analyzing the sufficiency of the
evidence under Banks and Clark and determining that defendant’s “conduct supported a
special circumstance finding.” Noting the factors discussed in Banks to determine
whether a defendant’s participation in the underlying crimes was “ ‘sufficiently
significant to be considered “major,” ’ ” the court determined that defendant was a major
participant in Liu’s robbery because he “beat Liu, conducted surveillance, and stood there
and watched, while Paul shot and killed Liu.” Regarding reckless indifference to human
life, the court found defendant’s “active participation in orchestrating the robbery, his
knowledge of Paul’s past violent behavior, and his own violent actions [during the

6
Defendant also contended in his habeas petition that his LWOP sentence was
disproportionate and unconstitutional.

8
robbery] demonstrate a finding of reckless indifference to human life,” contrasting this
case with Banks and Clark.
3. Section 1170.95 Proceedings
In 2021, defendant filed a section 1170.95 petition in the superior court. As
relevant here, the petition stated that “[a] complaint, information, or indictment was filed
against [him] that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine”; he “could not now be
convicted of 1st or 2nd degree murder because of changes made to . . . § § 188 and 189,
effective January 1, 2019”; he “was not the actual killer”; he “did not, with the intent to
kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the
commission of murder in the first degree”; he “was not a major participant in the felony
or . . . did not act with reckless indifference to human life during the course of the crime
or felony”; and the victim was not a peace officer in the performance of his or her duties.
Defendant requested counsel.
Following this court’s decision in People v. Drayton (2020) 47 Cal.App.5th 965,
975-976 (Drayton), overruled in part by People v. Lewis (2021) 11 Cal.5th 952, 963
(Lewis), the superior court denied the petition without appointing counsel, determining
that “readily ascertainable facts from the record demonstrate that [defendant] is ineligible
for [section 1170.95] relief as a matter of law.” Recognizing the split in the Courts of
Appeal regarding the preclusive effect of a pre-Banks and Clark felony-murder special
circumstance finding, the court followed the cases that hold that a felony-murder
special circumstance finding, including a finding made pre-Banks and Clark, bars
section 1170.95 relief as a matter of law. The court further found, “That conclusion is
even more appropriate given this particular record of conviction, where the felony murder
special circumstance has been upheld by a court applying a post-Banks and Clark
understanding of ‘major participant’ and ‘reckless indifference to human life.’ ”

9
 III. DISCUSSION
A. Statutory Framework and the Standard of Review
The Legislature enacted Senate Bill 1437 to “amend the felony murder rule and
the natural and probable consequences doctrine . . . 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 of the underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill amended sections 188 and
189, which pertain to the definition of malice and the degrees of murder. (Stats. 2018,
ch. 1015, §§ 2-3.)
The Legislature amended section 188 by adding subdivision (a)(3), which
provides: “Except as stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a crime.” (Stats. 2018,
ch. 1015, § 2; § 188, subd. (a)(3).) And section 189, subdivision (e), now limits liability
for murder to a person who was either the actual killer or, though not the actual killer,
acted “with intent to kill” and “aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer” in the commission of first degree murder, or 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.” (Stats. 2018, ch. 1015, § 3;
§ 189, subd. (e).)
In addition to the amendments to sections 188 and 189, Senate Bill 1437 added
section 1170.95. (Stats. 2018, ch. 1015, § 4.) As relevant here, section 1170.95 allows
“[a] person convicted of felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is imputed to a person based
solely on that person’s participation in a crime” to petition the sentencing court to vacate
the murder conviction and be resentenced on any remaining counts. (§ 1170.95,
subd. (a).) All of the following conditions must apply to warrant section 1170.95 relief:

10
“(1) A complaint, information, or indictment was filed against the petitioner that allowed
the prosecution to proceed under a theory of felony murder, murder under the natural and
probable consequences doctrine, or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime”; “(2) The petitioner was
convicted of murder . . . following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder”; and “(3) The petitioner could
not presently be convicted of murder . . . because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a).)
A section 1170.95 petition is required to include: “(A) A declaration by the
petitioner that the petitioner is eligible for relief under this section, based on all the
requirements of subdivision (a). [¶] (B) The superior court case number and year of
the petitioner’s conviction. [And] [¶] (C) [w]hether the petitioner requests the
appointment of counsel.” (§ 1170.95, subd. (b)(1).) “[U]pon the filing of a facially
sufficient petition,” the statute “requir[es] that counsel be appointed.” (Lewis, supra,
11 Cal.5th at p. 970.) “[T]hen the court proceeds to subdivision (c) to assess whether the
petitioner has made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)” (Id. at
p. 960.)
“[T]he prima facie inquiry under subdivision (c) is limited. Like the analogous
prima facie inquiry in habeas corpus proceedings, ‘ “the court takes petitioner’s factual
allegations as true and makes a preliminary assessment regarding whether the petitioner
would be entitled to relief if his or her factual allegations were proved. If so, the court
must issue an order to show cause.” ’ [Citations.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without first conducting an
evidentiary hearing.’ [Citations.] ‘However, if the record, including the court’s own
documents, “contain[s] facts refuting the allegations made in the petition,” then “the court
is justified in making a credibility determination adverse to the petitioner.” ’ [Citations.]”
(Lewis, supra, 11 Cal.5th at p. 971.)

11
 We determine questions of statutory interpretation de novo. (See Lewis, supra,
11 Cal.5th at p. 961.)
B. The Felony-Murder Special Circumstance Statute and Banks and Clark
An individual convicted of first degree murder may be sentenced to death or life
without the possibility of parole if a special circumstance enumerated under section 190.2
is found true. “One such special circumstance is the felony-murder special circumstance.
The requirements of the felony-murder special circumstance mirror the post-Senate
Bill 1437 requirements of felony murder. [Citations.] That is, the felony-murder special
circumstance applies where (1) the murder occurred during the commission of a specified
felony and (2) the defendant was the actual killer; with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted in the commission of
the murder; or with reckless indifference to human life and as a major participant, aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted in the
commission of the felony. (§ 190.2, subds. (a)(17), (c), (d).)” (People v. Pineda (2021)
66 Cal.App.5th 792, 798 (Pineda), review granted Sept. 29, 2021, S270513.)
In Banks and Clark, the California Supreme Court “clarified the meaning of the
special circumstances statute.” (In re Scoggins (2020) 9 Cal.5th 667, 671.) In Banks, the
court considered “under what circumstances an accomplice who lacks the intent to kill
may qualify as a major participant” under section 190.2. (Banks, supra, 61 Cal.4th at
p. 794.) The court held that “a defendant’s personal involvement must be substantial,
greater than the actions of an ordinary aider and abettor to an ordinary felony murder,”
and identified five factors relevant to that determination. (Id. at pp. 802, 803.) The
factors are: (1) “What role did the defendant have in planning the criminal enterprise
that led to one or more deaths?”; (2) “What role did the defendant have in supplying or
using lethal weapons?”; (3) “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?”; (4) “Was the defendant present at the scene of the killing, in

12
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?”; and (5) “What did the defendant do after
lethal force was used?” (Id. at p. 803, fn. omitted.) “No one of these considerations is
necessary, nor is any one of them necessarily sufficient.” (Ibid.)
In Clark, the California Supreme Court held that reckless indifference to human
life has “both subjective and objective elements.” (Clark, supra, 63 Cal.4th at p. 617.)
“The subjective element is the defendant’s conscious disregard of [the grave] risks [of
death] known to him or her.” (Ibid.) As to the objective element, “ ‘[t]he risk [of death]
must be of such a nature and degree that, considering the nature and purpose of the
actor’s conduct and the circumstances known to him [or her], its disregard involves a
gross deviation from the standard of conduct that a law-abiding person would observe
in the actor’s situation.’ ” (Ibid.) The court identified five factors relevant to whether
the defendant acted with reckless indifference to human life under the totality of the
circumstances. (Id. at pp. 618-622.) Those factors are: (1) the defendant’s knowledge of
weapons, the number of weapons, and whether the defendant used a weapon; (2) the
defendant’s physical presence at the crime and opportunities to restrain the crime and/or
aid the victim; (3) the duration of the underlying felony; (4) the defendant’s knowledge
of his or her cohort’s likelihood of killing; and (5) the defendant’s efforts to minimize
the risks of violence during the underlying felony. (Ibid.) “Just 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.’ ” (Id. at p. 618.)
“A defendant with a pre-Banks and Clark felony-murder special-circumstance
finding whose conviction became final prior to Banks and Clark may file a petition for
habeas corpus seeking to have the finding invalidated. Such a defendant ‘is entitled to
habeas corpus relief “ ‘if there is no material dispute as to the facts relating to his
conviction’ ” ’ and ‘the special circumstances statute as construed in Banks and Clark’
did not prohibit his conduct.” (Pineda, supra, 66 Cal.App.5th at p. 799.)

13
 C. The Superior Court’s Failure to Appoint Counsel
In Lewis, the California Supreme Court recently held that section 1170.95
requires “the appointment of counsel upon the filing of a facially sufficient petition
(see § 1170.95, subds. (b), (c)) and that only after the appointment of counsel and the
opportunity for briefing may the superior court consider the record of conviction to
determine whether ‘the petitioner makes a prima facie showing that he or she is entitled
to relief.’ (§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at p. 957.) It overruled the
Courts of Appeal, including this court in Drayton, that held that section 1170.95 requires
superior courts to conduct a two-step prima facie review, determining instead that
section 1170.95, subdivision (c) “describe[s] only a single prima facie showing.” (Lewis,
supra, at p. 962.) Thus, if a petition complying with section 1170.95, subdivision (b)(1)
is filed, “the court appoints counsel, if requested; the issue is briefed; and then the court
makes [a] prima facie determination” of petitioner’s eligibility for relief. (Lewis, supra,
at p. 966, fn. omitted.)
Here, as the Attorney General concedes, the superior court erred when it denied
defendant’s petition by relying on the record of conviction without first appointing
defendant counsel.

D. The Failure to Appoint Counsel Was Harmless
The California Supreme Court determined in Lewis that a superior court’s failure
to appoint counsel upon the filing of a facially sufficient section 1170.95 petition is state
law error only that does not amount to structural error. (Lewis, supra, 11 Cal.5th at
p. 973.) Thus, when a superior court has denied a facially sufficient petition at the prima
facie stage without appointing counsel, the petitioner must “ ‘demonstrate there is a
reasonable probability that in the absence of the error he [or she] would have obtained a
more favorable result.’ [Citations.]” (Id. at p. 974.)
The Courts of Appeal are divided on whether a pre-Banks and Clark felony-
murder special circumstance finding prevents a defendant from demonstrating prima

14
facie entitlement to section 1170.95 relief (see Pineda, supra, 66 Cal.App.5th at pp. 799-
801 [detailing the split]), and the issue is currently pending before the California Supreme
Court (see People v. Strong (Dec. 18, 2020, C091162) __ Cal.App.5th __ [2020
Cal.App.Unpub.LEXIS 8505], review granted Mar. 10, 2021, S266606). In Pineda, this
court followed the First District’s determination in People v. Secrease (2021) 63
Cal.App.5th 231, 255 (Secrease) that when a defendant convicted of murder with a
felony-murder special circumstance finding “ ‘has never been afforded a Banks and Clark
sufficiency-of-the-evidence review—by any court, at the trial or appellate level—
section 1170.95 courts have an obligation to undertake such an analysis at the prima facie
entitlement-to-relief stage of a resentencing proceeding under subdivision (c) of the
statute.’ ” (Pineda, supra, at p. 801.) Because the defendant in Pineda had never had a
Banks and Clark sufficiency of the evidence review, this court remanded the matter to the
superior court for it to determine at the prima facie stage of the section 1170.95
proceedings whether there was sufficient evidence in the record that defendant’s conduct
was proscribed by the felony-murder special circumstance statute as construed in Banks
and Clark. (Pineda, supra, at pp. 801-802; see also Secrease, supra, at p. 264 [same].)
Unlike the defendants in Pineda and Secrease, defendant has had a Banks and
Clark sufficiency of the evidence review of the felony-murder special circumstance
finding. Specifically, the superior court in the habeas proceeding found when
considering the factors discussed in Banks and Clark that “there is substantial evidence
demonstrating that [defendant] was a ‘major participant’ in the Liu robbery” and that
defendant’s “active participation in orchestrating the robbery, his knowledge of Paul’s
past violent behavior, and his own violent actions demonstrate a finding of reckless
indifference to human life.” This finding forecloses defendant from establishing a prima
facie case of entitlement to section 1170.95 relief because it refutes the allegation in
defendant’s petition that he could not currently be convicted of murder as he “was not a
major participant in the felony or . . . did not act with reckless indifference to human life

15
during the course of the crime or felony.” (See Lewis, 11 Cal.5th at p. 971; Pineda,
supra, 66 Cal.App.5th at p. 798 [“[t]he requirements of the felony-murder special
circumstance mirror the post-Senate Bill 1437 requirements of felony murder”];
Secrease, supra, 63 Cal.App.5th at p. 264 [a defendant is ineligible for section 1170.95
relief if there is sufficient evidence under Banks and Clark to support a felony-murder
special circumstance finding].)
Defendant asserts that the superior court’s finding of sufficiency under Banks and
Clark “should not have any preclusive or determinative effect” in these proceedings
because the habeas petition was “summarily denied” and the burden to establish a
prima facie case in habeas proceedings is higher than the prima facie burden under
section 1170.95. But “[t]he remedy the Banks and Clark decisions provide for [pre-
Banks and Clark] special circumstance findings is not an evidentiary hearing but a form
of substantial evidence review.” (People v. Price (2021) 71 Cal.App.5th 1128, 1150,
review granted Feb. 9, 2022, S272572.) Defendant received that review in the habeas
proceeding, and he may not challenge the outcome here.
Because the record conclusively refutes defendant’s allegation that he could not
presently be convicted of murder, defendant cannot demonstrate that he was prejudiced
by the superior court’s failure to appoint counsel before relying on the record of
conviction to deny the section 1170.95 petition. In other words, defendant cannot
“ ‘demonstrate there is a reasonable probability that in the absence of the error he . . .
would have obtained a more favorable result.’ ” (Lewis, supra, 11 Cal.5th at p. 974.)
For these reasons, we conclude that the superior court’s failure to appoint counsel
was harmless and affirm the denial of the section 1170.95 petition.
IV. DISPOSITION
The superior court’s order denying defendant’s Penal Code section 1170.95
petition is affirmed.

16
 BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

GROVER, J.

DANNER, J.

People v. Pereles
H049218