People v. Santana CA2/6

Filed 3/22/22 P. v. Santana CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B299353
(Super. Ct. No. TA063973)
Plaintiff and Respondent, (Los Angeles County)

v. ORDER DENYING PETITION
FOR REHEARING AND
ANDRES SANTANA, MODIFYING OPINION
(No Change in Judgment)
Defendant and Appellant.

THE COURT:
Appellant’s petition for rehearing is denied. It is ordered
that the opinion filed herein on March 3, 2022, be modified as
follows:
1. On Page 10, add the following language as a new
paragraph at the end of footnote 5:
On March 10, 2022, appellant filed a petition for rehearing,
claiming we did not address all the issues he personally raised in
the supplemental briefs he submitted after his appellate counsel
filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436.
Appellant’s supplemental briefs raised the Banks/Clark issue,
which we have discussed at length, and argued that his section
1170.95 petition stated a prima facie case for relief and that he
was entitled to the appointment of counsel. Our determination
that the special circumstance finding renders him ineligible for
section 1170.95 relief as a matter of law resolves these issues
against him.
No change in judgment.

GILBERT, P.J. YEGAN, J. PERREN, J.

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Filed 3/3/22 P. v. Santana CA2/6 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B299353
(Super. Ct. No. TA063973)
Plaintiff and Respondent, (Los Angeles County)

v.

ANDRES SANTANA,

Defendant and Appellant.

In 2002, Andres Santana was convicted of two counts of
murder (Pen. Code, § 187, subd. (a))1 and two counts of robbery
(§ 211). The jury found true the special circumstance allegations
that Santana committed the murders while engaged in a robbery
(§ 190.2, subds. (a)(17)(A), (d)), for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)), which resulted in multiple murders
(§ 190.2, subd. (a)(3)). The trial court sentenced Santana to life
without the possibility of parole plus 10 years for the gang

1 All statutory references are to the Penal Code.
enhancement. (People v. Santana (Apr. 11, 2005, B167415)
[nonpub. opn.].)2
In 2019, Santana filed a petition to vacate his murder
convictions and obtain resentencing pursuant to section 1170.95,
which was added to the Penal Code by Senate Bill No. 1437 (S.B.
1437). (Stats. 2018, ch. 1015, § 4.) The trial court denied the
petition without appointing counsel. It determined the petition
lacked merit because (1) the jury found Santana “was a major
participant in the underlying crime” by finding the felony-murder
special circumstance true and (2) the jury was not instructed on
the natural and probable consequences doctrine.
Santana appeals the order denying the petition. We
conclude the true finding on the felony-murder special
circumstance allegation rendered him ineligible for section
1170.95 relief as a matter of law. Accordingly, we affirm.
FACTS
The following summary of the facts is taken from our
unpublished 2005 opinion (People v. Santana, supra, B167415):
In the late evening, victims Reynaldo Aguilar and Tony
Esquer were sitting in a parked SUV with Raul Mata. The three
men had smoked crack cocaine earlier that day and were
drinking beer in the SUV.
Mata saw Santana and a man named Eric walk by. Mata
recognized Santana as a man he had seen in the neighborhood

2 On direct appeal, we struck the 10-year gang
enhancement but otherwise affirmed the judgment. (People v.
Santana, supra, B167415.) The California Supreme Court
granted Santana’s petition for review and directed us to
reconsider our decision in light of People v. Lopez (2005) 34
Cal.4th 1002. We again affirmed. (People v. Santana, supra,
B167415.)

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from time to time over the past few years. Mata knew that
Santana and Eric were members of the Lynnwood Dukes street
gang.
Mata left the SUV to buy more beer while Aguilar and
Esquer remained in the vehicle. While Mata was on the street,
Santana and Eric approached him and demanded money. Eric
took $10 out of Mata’s pocket.
Santana and Eric began walking towards the SUV. Mata
followed. As Santana and Eric reached the SUV, Mata saw a
third person hiding behind the vehicle. Either Santana or Eric
opened the door. They demanded money and started beating
Aguilar. Mata hid for a few minutes and then fled and called
911. It was later determined that Aguilar and Esquer suffered
multiple bruises and more serious wounds to the head. Both died
from skull fractures caused by a blunt instrument.
A few minutes after Mata’s 911 call, police officers arrived
at the scene and discovered the bodies near the SUV. Mata
approached the police and immediately identified the assailants
as Santana and Eric. An officer testified that Mata described
Santana as five feet ten inches tall with a bald head. But, at
trial, Mata testified that Santana was about five feet five or six
inches tall. Mata admitted that he had consumed about 18 beers
during the day, including four within two or three hours prior to
the murders.
The morning after the murders, Mata was asked to look at
a photographic “six-pack” provided by the police. He stated he
did not want to get involved and at first failed to identify Santana
or anyone else. After a break, Mata identified Santana as one of
the assailants. Mata also identified Santana in a lineup in June
2002, and at trial in November 2002.

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 DISCUSSION
“Under the felony-murder rule as it existed prior to Senate
Bill 1437, a defendant who intended to commit a specified felony
could be convicted of murder for a killing during the felony, or
attempted felony, without further examination of his or her
mental state. [Citation.] . . . [¶] Independent of the felony-
murder rule, the natural and probable consequences doctrine
rendered a defendant liable for murder if he or she aided and
abetted the commission of a criminal act (a target offense), and a
principal in the target offense committed murder (a nontarget
offense) that, even if unintended, was a natural and probable
consequence of the target offense. [Citation.]” (People v.
Lamoureux (2019) 42 Cal.App.5th 241, 247-248.)
The Legislature amended “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).)
To achieve this goal, S.B. 1437 amended section 189,
insofar as it pertains to the felony-murder rule, to add
subdivision (e), which provides: “A participant in the
perpetration or attempted perpetration of a felony listed in
subdivision (a) [e.g., robbery] in which a death occurs is liable for
murder only if one of the following is proven: (1) The person was
the actual killer. (2) The person was not the actual killer, but,
with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. (3) The person was a
major participant in the underlying felony and acted with

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reckless indifference to human life, as described in subdivision (d)
of Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
Section 1170.95, added by S.B. 1437, gives retroactive effect
to the changes in sections 188 and 189. It provides: “A person
convicted of felony murder or murder under the natural and
probable consequences doctrine . . . may file a petition with the
court that sentenced the petitioner to have the petitioner’s
murder . . . conviction vacated and to be resentenced on any
remaining counts when” certain conditions apply. (§ 1170.95,
subd. (a).) One of the conditions is that “[t]he petitioner could not
be convicted of murder . . . because of changes to Section 188 or
189 made [by S.B. 1437] effective January 1, 2019.” (Id., subd.
(a)(3).) The petition must include a declaration by the petitioner
showing he is eligible for the relief afforded by section 1170.95.
(Id., subd. (b)(1)(A).)
Santana claims he is entitled to section 1170.95 relief
because he was convicted of murder under a felony-murder
theory that is not permitted under current law. Citing Gikas v.
Zolin (1993) 6 Cal.4th 841, Santana contends that a “true”
finding on felony murder special circumstances may not be used
to deny section 1170.95 relief because the Legislature prohibited
such use by specifying that only a “not true” finding on the
special circumstance was preclusive. We are not persuaded. The
Legislature is presumptively aware of existing law when it enacts
new laws. (People v. Lawson (2020) 52 Cal.App.5th 1121, 1130-
1131.) Considering section 1170.95’s statutory scheme, it is
apparent the Legislature intended to bar relief to a petitioner
who was a major participant in the underlying felony who acted
with reckless indifference to human life, as reflected in the jury’s
true finding on the felony-murder special circumstance. (See
§ 189, subd. (e).)

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 Santana also argues he is entitled to relief under section
1170.95 because his conviction predated our high Court’s
decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks), and
People v. Clark (2016) 63 Cal.4th 522 (Clark). “Banks and Clark
did not create a new rule of law, but rather ‘clarified’ the already-
existing meaning of the phrases ‘major participant’ and ‘reckless
indifference to human life’ for purposes of special circumstance
allegations under section 190.2, subdivision (d).” (People v. Jones
(2020) 56 Cal.App.5th 474, 482, review granted Jan. 27, 2021,
S265854 (Jones).)
Banks concluded: “Reckless indifference to human life
‘requires the defendant be “subjectively aware that his or her
participation in the felony involved a grave risk of death.’””
(Banks, supra, 61 Cal.4th at p. 807, italics omitted.) In
determining whether the defendant was a major participant, the
Court noted that “the ultimate question” is “whether the
defendant’s participation ‘in criminal activities known to carry a
grave risk of death’ [citation] was sufficiently significant to be
considered ‘major’ [citations].” (Id. at p. 803.) In Clark, the
Court set forth factors to be considered in deciding whether the
defendant was a major participant and acted with reckless
indifference to human life. (Clark, supra, 63 Cal.4th at pp. 611,
618-623.)
Santana contends he is not ineligible for section 1170.95
relief as a matter of law because no court or jury has ever found
that he acted with reckless indifference to human life as a major
participant as those terms are now understood under Banks/
Clark. “Our appellate courts have recently split over whether . . .
a pre-Banks/Clark special circumstance finding renders a
petitioner ineligible for relief under section 1170.95 as a matter of

6
law.3 (Compare People v. Gomez (2020) 52 Cal.App.5th 1,
. . . [review granted Oct. 14, 2020, S264033] (Gomez); People v.
Galvan (2020) 52 Cal.App.5th 1134 . . . review granted Oct. 14,
2020, S264284 (Galvan); and People v. Allison (2020) 55
Cal.App.5th 449 . . . [review denied Dec. 23, 2020, S265450]
(Allison) [concluding the special circumstance finding renders a
petitioner ineligible for relief as a matter of law], with People v.
Torres (2020) 46 Cal.App.5th 1168 . . . review granted June 24,
2020, S262011 . . . ; People v. Smith (2020) 49 Cal.App.5th 85 . . .
review granted July 22, 2020, S262835 . . . ; and People v. York
(2020) 54 Cal.App.5th 250 . . . [review granted Nov. 18, 2020,
S264954] . . . .[concluding section 1170.95 relief may be available
if the special circumstance finding predates Banks/Clark].) As
we will explain, we agree with the Gomez/Galvan[/Allison] line of
decisions and hold that a petitioner with a pre-Banks/Clark
finding is ineligible for relief under section 1170.95 as a matter of
law.” (Jones, supra, 56 Cal.App.5th at pp. 478-479.)
First, we “turn[] to the language of section 1170.95 itself:
In order to be eligible for resentencing, a defendant must show
that he or she ‘could not be convicted of first or second degree
murder because of changes to Section[s] 188 or 189 made
effective’ as part of Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).)

3 The issue is pending before the Supreme Court in People
v. Strong (Dec. 18, 2020, No. C091162) 2020 Cal.App.Unpub
Lexis 8505, review granted Mar. 10, 2021, S266606. According to
the Supreme Court’s website, “[t]his case presents the following
issue: 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?”

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[¶] In this case, that requirement is not met. Although [Santana]
is asserting that he could not now be convicted of murder, the
alleged inability to obtain such a conviction is not ‘because of
changes’ made by Senate Bill No. 1437, but because of the
clarification of the requirements for the special circumstance
finding in Banks and Clark. Nothing about those requirements
changed as a result of Senate Bill No. 1437. Just as was the case
before that law went into effect, the special circumstance applies
to defendants who were major participants in an underlying
felony and acted with reckless indifference to human life. If
[Santana] 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.” (Galvan, supra, 52 Cal.App.5th at
p. 1142; accord Gomez, supra, 52 Cal.App.5th at p. 17 [“[T]he
proper procedure for [petitioner] to challenge her special
circumstance findings based on clarification of the relevant law in
Banks and Clark is to bring a petition for habeas corpus, in which
she would bear the burden of showing the findings must be
vacated on the ground there is insufficient evidence to support
them”]; see also In re Scoggins (2020) 9 Cal.5th 667, 676
[petitioner convicted of special circumstance murder prior to
Banks/Clark is entitled to habeas corpus relief if his conduct did
not fall within the scope of the special circumstance statute as
clarified by Banks/Clark].)4
“Courts which have held that a pre-Banks and Clark
felony-murder special-circumstance finding bars section 1170.95

4 On December 18, 2019, Santana filed an in pro per
petition for habeas corpus based on Banks/Clark. We deferred
ruling in that matter (No. B303073) pending our decision in this
appeal. Given our decision, we are issuing a separate order
denying the habeas petition.

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resentencing relief have [also] . . . note[d] that our Supreme
Court does not require juries to be instructed on the Banks and
Clark [factors]. . . . Thus, these courts found ‘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.’” (People v. Simmons (2021) 65
Cal.App.5th 739, 747-748, review granted Sept. 1, 2021,
S270048.)
CONCLUSION
A petitioner is entitled to relief only if “[t]he petitioner
could not be presently convicted of murder . . . because of changes
to Section 188 or 189 made effective January 1, 2019 [by S.B.
1437].” (§ 1170.95, subd. (a)(3).) The Banks/Clark clarification
of “reckless indifference to human life” and “major participant”
became effective long before January 1, 2019. Banks was decided
in 2015; Clark was decided in 2016. S.B. 1437’s changes to
sections 188 and 189 had no impact on the prior Banks/Clark
clarification. The language of section 1170.95, subdivision (a)(3)
is clear on its face – the petitioner is eligible for relief only if he
could not be convicted of murder because of statutory changes
“made effective January 1, 2019,” not because of the Supreme
Court’s clarification of the law prior to January 1, 2019.
Accordingly, “[w]e . . . conclude [Santana’s] special
circumstance finding renders him ineligible for relief under
section 1170.95 as a matter of law and the trial court properly
denied his petition without an evidentiary hearing.” (Jones,
supra, 56 Cal.App.5th at p. 485.) “The purpose of section 1170.95
is to give defendants the benefit of amended sections 188 and
189 with respect to issues not previously determined, not to

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provide a do-over on factual disputes that have already been
resolved.”5 (Allison, supra, 55 Cal.App.5th at p. 461.)
DISPOSITION
The order denying Santana’s petition for relief under
section 1170.95 is affirmed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

5 On April 15, 2021, the People filed a request for judicial
notice of the record in the prior appeal (People v. Santana, supra,
B167415), which Santana opposed. We deny the request.

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 Michael J. Shultz, Judge
Superior Court County of Los Angeles
______________________________

Larry Pizarro, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Senior Assistant Attorney
General, Idan Ivri and Yun K. Lee, Deputy Attorneys General,
for Plaintiff and Respondent.

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