People v. Taylor CA2/4

Filed 4/21/22 P. v. Taylor CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B312057
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. LA033959)

v.

KIRELL FRANCIS TAYLOR,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles
County, Eric P. Harmon, Judge. Reversed and remanded.
Joanna Rehm, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Noah P. Hill, Supervising Deputy Attorney General, Nima Razfar,
Deputy Attorney General, for Plaintiff and Respondent.
 This is an appeal from the denial of appellant Kirell Francis
Taylor’s petition for resentencing under Penal Code section 1170.95.1
In 2001, appellant was convicted of nine substantive offenses, including
one count of special circumstance murder (§ 187, subd. (a), count 1), the
only offense at issue in this appeal. As to that count, the jury found
true that the murder was committed in the commission of burglary,
robbery, carjacking, and kidnapping (§ 190.2, subd. (a)(17)).
In 2002, this court modified appellant’s sentence and affirmed his
conviction in all other respects. (See People v. Taylor (Aug. 29, 2002,
B153903) [nonpub. opn.] (Taylor I)).
In January 2020, appellant filed a verified petition for
resentencing under section 1170.95, which provides that persons who
were convicted under theories of felony murder or murder under the
natural and probable consequences doctrine, and who could no longer be
convicted of murder following the enactment of Senate Bill No. 1437
(S.B. 1437), may petition the sentencing court to vacate the conviction
and resentence on any remaining counts. (Stats. 2018, ch. 1015, § 1,
subd. (f).)
Following the appointment of counsel and briefing by the parties,
on March 22, 2021, the court held a hearing on appellant’s petition.
During the hearing, the prosecution withdrew its opposition to
appellant’s petition at the prima facie stage of review under the
reasoning set forth in People v. York (2020) 54 Cal.App.5th 250 (York),

1 Undesignated statutory references are to the Penal Code.

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review granted Nov. 18, 2020, S264954. In York, our colleagues in
Division Five held that a jury’s true finding under the felony-murder
special circumstance statute (§ 190.2, subd. (a)(17)), made before the
Supreme Court decided People v. Banks (2015) 61 Cal.4th 788 (Banks)
and People v. Clark (2016) 63 Cal.4th 522 (Clark), cannot preclude
eligibility for relief under section 1170.95 as a matter of law. (York,
supra, at p. 258.)
Mindful of the prosecution’s change in position, after taking the
matter under submission, the court issued a written ruling summarily
denying appellant’s petition. In so ruling, the court identified the
current split in authority regarding a pre-Banks and Clark felony-
murder special circumstance finding. Disagreeing with the
prosecution’s position, the trial court elected to follow the line of cases
holding that a felony-murder special circumstance finding predating
Banks and Clark precludes relief under section 1170.95 as a matter of
law. (See, e.g., People v. Galvan (2020) 52 Cal.App.5th 1134, 1141–1143
(Galvan), rev. granted Oct. 14, 2020, S264284; People v. Allison (2020)
55 Cal.App.5th 449, 457–458, 461 (Allison); People v. Jones (2020) 56
Cal.App.5th 474, 482, rev. granted Jan. 27, 2021, S265854; People v.
Gomez (2020) 52 Cal.App.5th 1, 14–15 (Gomez), rev. granted Oct. 14,
2020, S264033; People v. Murillo (2020) 54 Cal.App.5th 160, 168, rev.
granted Nov. 18, 2020, S264978.)
On appeal from the trial court’s order, appellant contends that the
trial court erred by relying on the Galvan/Allison/Gomez line of cases.
He asserts these cases were incorrectly decided, and requests that we

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apply the so-called Torres/Smith/York line of cases, which hold that a
pre-Banks and pre-Clark special circumstance finding does not render a
section 1170.95 petitioner ineligible for relief as a matter of law. (See
York, supra, 54 Cal.App.5th at p. 258; People v. Torres (2020) 46
Cal.App.5th 1168, 1173 (Torres), rev. granted June 24, 2020, S262011,
overruled on another ground in People v. Lewis (2021) 11 Cal.5th 952
(Lewis); People v. Smith (2020) 49 Cal.App.5th 85, 93 (Smith), rev.
granted, July 22, 2020, S262835; accord, People v. Gonzalez (2021) 65
Cal.App.5th 420, 431, rev. granted, Aug. 18, 2021, S269792; People v.
Arias (2021) 66 Cal.App.5th 987, 1004, rev. granted Sept. 29, 2021,
S270555; People v. Secrease (2021) 63 Cal.App.5th 231, 255, rev.
granted, June 30, 2021, S268862; People v. Harris (2021) 60
Cal.App.5th 939, 958 (Harris), rev. granted, Apr. 28, 2021, S267802.)
Despite the prosecution’s change in position favoring
Torres/Smith/York, the Attorney General now contends that those
cases were incorrectly decided, and that Galvan/Allison/Gomez should
control our analysis. He also asserts that even if the
Torres/Smith/York line of cases was correctly decided, appellant is still
ineligible for relief because his actions rise to the level of major
participation and reckless indifference under Banks and Clark.
Consistent with our prior decisions on the issue, we reverse the
trial court’s order in light of Torres/Smith/York. We also refrain from
engaging, in the first instance, in the factfinding necessary to determine
major participation and reckless indifference under the standards
established by Banks and Clark. We reverse the order summarily

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denying defendant’s petition, and direct the court to issue an order to
show cause and proceed consistent with section 1170.95, subdivision (d).

BACKGROUND
We recite the factual background from Taylor I, which has been
made part of the record on appeal. Around 8:00 p.m. on February 8,
1999, appellant and another man, both wearing ski masks, followed
Christopher Rawlings into his garage as he returned to his home. The
assailants held Rawlings in the garage, stole valuables from his home,
and then drove him away in his Bentley sedan. Rawlings’s wife, who
had been inside the home, heard loud music and voices in the garage,
and opened a door to the garage to see what was taking place. She ran
back into the home and called 911. The police responded, and a high-
speed chase ensued, which culminated when the driver of the Bentley
struck another car, spun into a utility pole, and came to rest against a
tree. The assailants fled from the car, leaving Rawlings unconscious at
the scene of the crash. Rawlings died from head injuries suffered in the
crash. (Taylor I, supra, at pp. 2–3.)
By amended information, appellant was charged with first degree
murder (§ 187, subd. (a), count 1), kidnapping to commit robbery (§ 209,
subd. (b)(1), count 2), kidnapping during commission of carjacking
(§ 209.5, subd. (a), count 3), robbery (§ 211, counts 4, 9), burglary (§ 459,
count 5), carjacking (§ 215, subd. (a), counts 6, 8), and evading an officer
causing death (Veh. Code, § 2800.3, count 7). As to count 1, the
information also alleged that the murder was committed during the
commission of burglary, robbery, carjacking, and kidnapping (§ 190.2,

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subd. (a)(17)). The information also alleged that appellant personally
inflicted great bodily injury on the victim in the commission of each
felony in counts 2 through 6. Following trial, a jury convicted appellant
on all counts, and found the felony-murder special circumstance and
enhancement allegations to be true. Appellant was sentenced to an
overall term of life imprisonment without the possibility of parole plus
24 years four months.
In his direct appeal, this court modified appellant’s sentence to life
imprisonment without the possibility of parole (we stayed the
determinate sentence of 24 years four months under section 654), and
affirmed the judgment in all other respects. (Taylor I, supra, at pp. 2,
5–6.)
In January 2020, appellant filed a verified petition for
resentencing under section 1170.95, claiming entitlement to relief
because he was convicted of first degree murder under a felony-murder
theory. Appellant also claimed he was not the actual killer; did not aid
and abet with the intent to kill; and did not act with reckless
indifference as a major participant to the underlying felonies.
Appellant requested that counsel be appointed on his behalf, and
declared that he intended to offer “new scientific evidence.” The court
appointed counsel, the prosecution filed an opposition, and appellant
filed a reply.
At a March 22, 2021 hearing on appellant’s petition, the court
stated that it had received the parties’ briefs and attached exhibits.
During argument, the prosecutor stated that her office (the Office of the
District Attorney of Los Angeles) had recently changed its position on

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the effect of a pre-Banks and Clark felony-murder special circumstance
finding on the prima facie stage of review. The prosecutor explained
that her office found York, supra, 54 Cal.App.5th 250, which “requires
an evidentiary hearing because that matter predated . . . Banks and . . .
Clark,” to be controlling authority on the issue. In candor, the
prosecutor informed the court that there is current split in authority.
Defense counsel submitted on the briefs, and the court took the matter
under submission.
In a subsequent written ruling, the court relied on the
Galvan/Allison/Gomez line of cases, and found appellant “ineligible for
resentencing relief [as a matter of law] because his murder conviction
included four felony-murder special circumstances which required the
jury to find beyond a reasonable doubt that [he] was a major participant
in the underlying robbery, kidnapping, carjacking, and residential
burglary, and that he acted with reckless indifferent to human life.”2

DISCUSSION
Appellant contends the court prejudicially erred by denying his
section 1170.95 petition without issuing an order to show cause in

2 Relying on the reporter’s transcripts from trial, the court stated that
the “jury was instructed that if [appellant] was not the actual killer (or if it
could not determine whether he was), it could not find the special
circumstances true unless it was satisfied beyond a reasonable doubt that he,
with the intent to kill, directly aided and abetted the murder; or, with
reckless indifference to human life and as a major participant, aided and
abetted the underlying offenses of robbery, kidnapping, carjacking, and
residential burglary.”

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reliance on the jury’s true findings under the felony-murder special
circumstance statute (§ 190.2, subd. (a)(17)) that pre-date Banks and
Clark. We agree with appellant’s contention, and decline the Attorney
General’s request to engage in factfinding in the first instance under
Banks and Clark to determine if appellant was a major participant who
acted with reckless indifference to human life.3

1. Governing Law
The legislature enacted S.B. 1437 “to amend the felony murder
rule and the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a person who
is not the actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); accord,
§ 189, subd. (e); Lewis, supra, 11 Cal.5th at p. 959.)

3 In light of our conclusion, we do not consider appellant’s alternative
contention regarding the effect of the jury’s true finding under section
12022.7, subdivision (a), that he personally inflicted great bodily injury on
the victim during the commission of the felonies in counts 2 through 6. The
trial court did not rely on this enhancement when determining appellant’s
eligibility for relief, and instead noted that it had “not been able to find any
authority for the proposition that enhancement under section 12022.7
precludes relief as a matter of law.” (Accord, People v. Elder (2014) 227
Cal.App.4th 411, 424 [section 12022.7 does not require that a defendant
intend to inflict great bodily injury; “[i]t makes no difference whether
defendant intentionally inflicted the injury . . . or the injury was inflicted
accidentally”].)

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 Section 1170.95, as enacted by S.B. 1437, permits individuals who
were convicted of felony murder or murder under the natural and
probable consequences doctrine, but who could not be convicted of
murder following the amendments to sections 188 and 189, to petition
the sentencing court to vacate the conviction and resentence on any
remaining counts. (See § 1170.95, subd. (a).) A petition for relief under
section 1170.95 must include a declaration by the petitioner that he is
eligible for relief under section 1170.95 based on all the requirements of
subdivision (a), the superior court case number and year of the
petitioner’s conviction, and a request for appointment of counsel, should
the petitioner seek appointment. (§ 1170.95, subd. (b)(1).)
Subdivision (c) of section 1170.95 provides that after the parties
submit briefing, “the court shall hold a hearing to determine whether
the petitioner has made a prima facie case for relief. If the petitioner
makes a prima facie showing that [he or she] is entitled to relief, the
court shall issue an order to show cause. If the court declines to make
an order to show cause, it shall provide a statement fully setting forth
its reasons for doing so.” (See also Lewis, supra, 11 Cal.5th at p. 962
[subd. (c) provides only for “a single prima facie” stage of review].)
To determine whether the petitioner has made a prima facie case
for section 1170.95 relief, 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.”’ ([People v.] Drayton [(2020)] 47 Cal.App.5th [965,] 978, quoting
Cal. Rules of Court, rule 4.551(c)(1).) ‘[A] court should not reject the

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petitioner’s factual allegations on credibility grounds without first
conducting an evidentiary hearing.’ (Drayton, at p. 978, fn. omitted,
citing In re Serrano (1995) 10 Cal.4th 447, 456.) ‘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.”’ (Drayton, at
p. 979, quoting Serrano, at p. 456.)” (Lewis, supra, 11 Cal.5th at
p. 971.) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion.’
(Drayton, . . . at p. 980.)” (Id. at p. 972.)
If the trial court determines that a prima facie showing for relief
has been made, it must issue an order to show cause and hold a hearing
“to determine whether to vacate the murder, . . . conviction and to recall
the sentence and resentence the petitioner on any remaining counts in
the same manner as if the petitioner had not previously been
sentenced.” (§ 1170.95, subd. (d)(1).) During the evidentiary hearing,
the prosecutor and the petitioner may offer new or additional evidence
to meet their respective burdens. (§ 1170.95, subd. (d)(3).)

2. Analysis
The parties dispute whether the jury’s felony-murder special
circumstance findings made prior to Banks and Clark preclude
appellant from making a prima facie showing under section 1170.95,
subdivision (c). Relying on Torres/Smith/York, appellant asserts that

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these findings do not preclude relief as a matter of law. The Attorney
General disagrees, and asserts that under Galvan/Allison/Gomez, the
special circumstance findings preclude appellant from making a prima
facie showing as a matter of law.
Pending guidance from the Supreme Court on this issue,4 and
consistent with our prior decisions on the issue, we follow the
Torres/Smith/York line of cases holding that a pre-Banks and Clark
special circumstance finding “cannot preclude eligibility for relief
under . . . section 1170.95 as a matter of law, because the factual issues
that the jury was asked to resolve in a trial that occurred before Banks
and Clark were decided are not the same factual issues our Supreme
Court has since identified as controlling.” (York, supra, 54 Cal.App.5th
at p. 258; accord, Smith, supra, 49 Cal.App.5th at p. 93; Torres, supra,
46 Cal.App.5th at p. 1179.)
As amended by S.B. 1437, subdivision (e) of section 189 provides
that participation in the perpetration or attempted perpetration of an
enumerated felony (here, burglary, robbery, carjacking, kidnapping to
commit robbery, and kidnapping during the commission of carjacking)
in which a death occurs renders a person liable for murder only if the
person was the actual killer, acted with the intent to kill as an aider
and abettor, or was a major participant in the underlying felony and

4 The Supreme Court has granted review in People v. Strong (Dec. 18,
2020, C091162) [nonpub. opn.], review granted March 10, 2021, S266606, to
resolve the following issue: “Does a felony-murder special circumstance
finding (Pen. Code, § 190.2, subd. (a)(17)) made before [Banks] and [Clark]
preclude a defendant from making a prima facie showing of eligibility for
relief under Penal Code section 1170.95?”

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acted with reckless indifference to human life as described in
subdivision (d) of section 190.2. Section 190.2, subdivision (d), in turn,
provides for a term of punishment by death or life imprisonment
without the possibility of parole for persons “not the actual killer, [but]
who, with reckless indifference to human life” and as major
participants, aid, abet or assist in the commission of any felony
enumerated in paragraph (17) of subdivision (a) which results in the
death of some person or persons, and who is found guilty of murder in
the first degree. Subdivision (a)(17) of section 190.2 lists burglary,
robbery, carjacking, kidnapping to commit robbery, and kidnapping
during the commission of carjacking as qualifying felonies. (§ 190.2,
subds. (a)(17)(A)-(B), (a)(17)(G), (a)(17)(L).)
The special circumstance findings in this case indicate that the
jury found that appellant, as an aider and abettor, either intended to
kill or acted with reckless indifference to human life as a major
participant in the robbery and burglary. However, because the jury
rendered its findings approximately 15 years prior to the Banks and
Clark decisions in which it did not specify whether appellant acted with
intent to kill, he is not precluded from showing that he could not be
convicted of first degree murder as redefined by S.B. 1437. (Torres,
supra, 46 Cal.App.5th at p. 1179.)
The Attorney General asserts that the Torres/Smith/York line of
cases was wrongly decided and urges us instead to follow the reasoning
set forth in Galvan/Allison/Gomez. In Galvan/Allison/Gomez, the
courts of appeal reasoned that the petitioners and others like them are
not entitled to relief under the plain language of section 1170.95,

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because the present inability to convict them of murder was not
“‘because of changes’” made by S.B. 1437 (see § 1170.95, subd. (a)(3)
[petitioners are entitled to relief because they “‘could not be convicted
of . . . murder because of changes to Section[s] 188 or 189 made
effective’” January 1, 2019]), but because of the “clarification of the
requirements for the special circumstance finding in Banks and Clark.”
(Galvan, supra, 52 Cal.App.5th at p. 1142; accord, Allison, supra, 55
Cal.App.5th at p. 460; Gomez, supra, 52 Cal.App.5th at pp. 14–15.) The
Galvan and Gomez courts also reasoned that a section 1170.95 petition
is not a “proper vehicle” for challenging a felony-murder special
circumstance finding, which must be challenged through habeas corpus
proceedings. (Galvan, supra, at p. 1141; accord, Gomez, supra, at p. 17.)
Pending resolution of this issue by the Supreme Court, we
continue to follow Torres/Smith/York. Appellant’s section 1170.95
petition seeks to have his “murder, . . . conviction vacated and to be
resentenced” on any remaining counts. (§ 1170.95, subd. (a); see York,
supra, 54 Cal.App.5th at p. 260 [“[o]ur analyses in Torres and Smith
recognized that section 1170.95 permits a petitioner to challenge a
murder conviction”].) Because a petitioner’s entitlement to section
1170.95 relief may require consideration of the verdict (including any
special circumstance findings), the Banks and Clark decisions remain
relevant for making such determination. And because the jury was not
instructed on the standards as set forth in Banks and Clark, and
because the jury did not find that appellant was the actual killer (a
contention unchallenged by the Attorney General), we cannot conclude

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that appellant is precluded from relief as a matter of law at this stage of
the proceedings.
The Attorney General contends that even under
Torres/Smith/York, any error by the trial court is harmless because
appellant’s “actions rise to the level required by Banks and Clark.” In
so arguing, the Attorney General asserts that this court may, in the
first instance, engage in a de novo review to determine whether
appellant committed the underlying felonies as a major participant who
acted with reckless indifference under the standards set forth in Banks
and Clark.
We do not agree with the Attorney General that the error
discussed above is subject to harmless error review under the principles
set forth in People v. Watson (1956) 46 Cal.2d 818. The Supreme Court
has clarified that a trial court’s authority at the prima facie stage of
review is “limited,” in that it may not “engage in ‘factfinding involving
the weighing of evidence.’” (Lewis, supra, at p. 972, quoting Drayton,
supra, 47 Cal.App.5th at p. 980.) Nor do we read section 1170.95 as
excluding a petitioner’s ability to proffer evidence not presented at trial
(which appellant has alleged he purports to do) to dispute whether he or
she was a major participant in the underlying felonies, or acted with
reckless indifference to human life. (See § 1170.95, subd. (d)(3) [at the
hearing to determine the petitioner’s entitlement to relief, “the court
may consider evidence previously admitted at any prior hearing or trial
that is admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court may also

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consider the procedural history of the case recited in any prior appellate
opinion. . . . The prosecutor and the petitioner may also offer new or
additional evidence to meet their respective burdens”]; Smith, supra, 49
Cal.App.5th at pp. 95–96; Harris, supra, 60 Cal.App.5th at pp. 959–960
& fn. 13.) We therefore decline the Attorney General’s request to
engage in factfinding in the first instance in this appeal. We reverse
the court’s order summarily denying appellant’s petition, and remand
the matter with directions for the trial court to issue an order to show
cause and hold a hearing under subdivision (d) of section 1170.95 in
which the parties may introduce new or additional evidence to meet
their respective burdens.

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

WILLHITE, J.
We concur:

MANELLA, P. J. COLLINS, J.

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