Filed 4/25/22 P. v. Faulalo CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C094142
Plaintiff and Respondent, (Super. Ct. No. 04F02695)
v.
LANGIMA'A FAULALO,
Defendant and Appellant.
Defendant Langima’a Faulalo challenges the trial court’s denial of his petition for
resentencing under Penal Code section 1170.95 (statutory section citations that follow are
to the Penal Code) based on changes made to the felony-murder rule by Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). Defendant contends the trial court
erred in relying on the jury’s special circumstance finding to deny his petition. We affirm
the judgment.
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FACTS AND HISTORY OF THE PROCEEDINGS
We have granted defendant’s motion for judicial notice of our prior decision in his
direct appeal. (Evid. Code, § 452, subd. (d).)
On March 10, 2004, defendant participated in a home invasion robbery with three
others. (People v. Faulalo (Nov. 17, 2008, C055080) [nonpub. opn.] (Faulalo).) During
the robbery, one of the assailants shot and killed Danny Johnson. (Ibid.) The jury
convicted defendant of first degree murder and robbery along with finding true several
sentence enhancement allegations, including the special circumstance that the murder
was committed in the commission of a robbery under section 190.2, subdivision (a)(17).
Defendant was sentenced to life without the possibility of parole plus 10 years for
a firearm enhancement. Defendant appealed his convictions and we modified a fee
imposed but otherwise affirmed the judgment. (Faulalo, supra, C055080.)
On April 26, 2019, defendant filed a form petition for resentencing pursuant to
section 1170.95. On the form, he checked various boxes stating that a complaint 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, that at trial he was
convicted of first or second degree murder pursuant to the felony-murder rule or the
natural and probable consequences doctrine, and that he could not now be convicted of
first or second degree murder because of changes made to sections 188 and 189, effective
January 1, 2019. Defendant also checked the boxes stating that he was not the actual
killer, did not aid or abet the killing with the intent to kill, and that he was not a major
participant in the felony or that he acted with reckless indifference to human life. The
prosecutor filed a response and motion to dismiss and defense counsel filed an
opposition. Defendant attached the jury instructions and signed verdict forms to his brief,
including the special circumstance jury instruction.
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On April 19, 2021, the trial court filed a written order denying the petition without
prejudice, allowing him to refile the petition if he in the future obtains relief through a
habeas corpus petition. The court explained that defendant is ineligible because, though
he was found guilty on a felony murder theory, the jury found true the special
circumstance, so it necessarily found defendant was the actual killer, had the intent to
kill, or was a major participant who acted with reckless indifference to human life. It also
concluded defendant could not challenge this finding under the recent California
Supreme Court cases People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016)
63 Cal.4th 522 through a section 1170.95 petition, but instead must first seek relief
through a habeas corpus petition.
DISCUSSION
Defendant argues that the trial court erred in concluding the special circumstance
finding rendered defendant ineligible as a matter of law because that finding was made
before Banks and Clark. He argues that, because the California Supreme Court altered
the analysis for determining when a defendant is a major participant who acted with
reckless indifference to human life, he is not ineligible as a matter of law. Further, he
contends he can seek reversal of the special circumstance finding under Banks and Clark
through a section 1170.95 petition.
I
Senate Bill 1437 and Special Circumstance Finding
Senate Bill 1437 was enacted 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 in the underlying felony who acted with reckless indifference to human life.”
(Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 achieves these goals by amending
section 188 to require that a principal act with express or implied malice (§ 188, as
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amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state that a
person can be liable for felony murder only if (1) the “person was the actual killer”; (2)
the person, with an intent to kill, was an aider or abettor in the commission of murder in
the first degree; or (3) the “person was a major participant in the underlying felony and
acted with reckless indifference to human life.” (§ 189, subd. (e), as amended by Stats.
2018, ch. 1015, § 3.)
Senate Bill 1437 also added section 1170.95 to provide the resentencing petition
process for a “person convicted of felony murder or murder under a natural and probable
consequences theory . . . .” (§ 1170.95, subd. (a).) After a defendant submits a petition
and the court performs an initial review for missing information, subdivision (c) of
section 1170.95 provides: “The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner falls within the provisions of
this section. If the petitioner has requested counsel, the court shall appoint counsel to
represent the petitioner. The prosecutor shall file and serve a response within 60 days of
service of the petition and the petitioner may file and serve a reply within 30 days after
the prosecutor response is served. These deadlines shall be extended for good cause. 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.”
In performing this preliminary screening function, trial courts are not limited to
the allegations of the petition; rather, they may “rely on the record of conviction in
determining whether that single prima facie showing is made.” (People v. Lewis (2021)
11 Cal.5th 952, 970.) If the record of conviction establishes the petition lacks merit, the
trial court may deny the petition without conducting further proceedings. (Id. at p. 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”].)
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Section 190.2, subdivision (d) provides that, for the purposes of those special
circumstances based on the enumerated felonies in paragraph (17) of subdivision (a),
which include robbery, an aider and abettor must have been a “major participant” and
have acted “with reckless indifference to human life.” (§ 190.2, subd. (d); Tapia v.
Superior Court (1991) 53 Cal.3d 282, 298.) Thus, on its face, a special circumstance
finding satisfies the requirements for accomplice murder liability even after Senate
Bill 1437. (§ 189, subd. (e).)
That is the case here. As confirmed by the jury instructions and jury verdict
forms, the jury at defendant’s trial necessarily found that defendant was at a minimum a
major participant who acted with reckless indifference to human life. This means he
could still be found guilty of felony murder even after Senate Bill 1437, rendering him
ineligible for resentencing as a matter of law. And as the instructions and verdicts are
part of the record of conviction, the trial court could properly rely on these to deny
defendant’s section 1170.95 petition.
II
Special Circumstance finding after Banks and Clark
Since defendant’s conviction, the Supreme Court has refined the analysis for who
qualifies as a major participant acting with reckless indifference to human life in Banks
and Clark and “construed section 190.2, subdivision (d) in a significantly different, and
narrower manner than courts had previously construed the statute.” (People v. Torres
(2020) 46 Cal.App.5th 1168, 1179, review granted June 24, 2020, S262011, abrog. on
another ground by People v. Lewis, supra, 11 Cal.5th at p. 963.) In some cases,
defendants convicted prior to Banks and Clark have subsequently had their special
circumstance findings reversed for insufficient evidence under the modified analysis
through habeas corpus petitions. (See In re Scoggins (2020) 9 Cal.5th 667, 683.) A
reversal of a special circumstance finding can qualify a defendant for resentencing under
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Senate Bill 1437 through section 1170.95. (See People v. Ramirez (2019) 41 Cal.App.5th
923 [where appellate court had previously determined on a habeas petition that the
defendant was not a major participant in the underlying felony and did not act with
reckless indifference to human life, the trial court was required to vacate the defendant’s
murder conviction and resentence him under § 1170.95].)
But challenging a special circumstance finding under the Banks/Clark analysis is
reserved for a habeas petition. There is a split of authority on this issue and whether a
defendant with a special circumstance finding must first seek relief under Banks/Clark
through a habeas petition before filing a section 1170.95 petition. (See People v. Gomez
(2020) 52 Cal.App.5th 1, 17 [defendants seeking relief on the basis of Banks/Clark must
do so through habeas corpus], review granted Oct. 14, 2020, S264033 (Gomez); People v.
Galvan (2020) 52 Cal.App.5th 1134, 1142-1143 [same], review granted Oct. 14, 2020,
S264284; People v. York (2020) 54 Cal.App.5th 250, 260 [“We part ways with Galvan
and Gomez because we do not agree that section 1170.95 requires a defendant to
challenge a pre-Banks and Clark special circumstance finding in a habeas corpus
proceeding before he or she may successfully challenge the underlying murder conviction
in a section 1170.95 proceeding”], review granted Nov. 18, 2020, S264954 (York).)
Defendant recognizes the cases that disagree with his position but asks us to
follow contrary case law that instead finds a Banks/Clark challenge can be brought in a
section 1170.95 petition. We will not do so.
We instead agree with those authorities finding section 1170.95 is not the
appropriate avenue to challenge a special circumstance finding under Banks and Clark.
(See Gomez, supra, 52 Cal.App.5th at p. 17, review granted; People v. Galvan, supra,
52 Cal.App.5th at pp. 1142-1143, review granted; People v. Allison (2020)
55 Cal.App.5th 449, 458-462; People v. Jones (2020) 56 Cal.App.5th 474, 491-492,
review granted Jan. 27, 2021, S265854.)
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The purpose of section 1170.95 is to permit resentencing for individuals who
could not now be convicted under sections 188 and 189 because of Senate Bill 1437.
(Stats. 2018, ch. 1015 [“This bill would provide a means of vacating the conviction and
resentencing a defendant” where “the defendant could not be charged with murder after
the enactment of this bill”].) One of the three initial conditions for section 1170.95 to
apply is “[t]he petitioner could not be convicted of first or second degree murder because
of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd.
(a)(3), italics added.) Defendants who are potentially eligible for relief because of the
modified special circumstances analysis do not satisfy this initial hurdle because they
would have been able to seek relief via a habeas petition regardless of Senate Bill 1437.
(See In re Miller (2017) 14 Cal.App.5th 960, 976-977, 980 [granting a habeas corpus
petition before passage of Sen. Bill 1437 after finding insufficient evidence supported
special circumstance finding under Banks and Clark].)
Permitting a Banks/Clark review by way of a section 1170.95 petition also would
shift the burden from the defendant under a substantial evidence review (as in a habeas
petition challenging the sufficiency of the evidence) to the prosecutor under a beyond-a-
reasonable-doubt standard (as in a section 1170.95 hearing). (See Gomez, supra,
52 Cal.App.5th at p. 17, review granted.)
Further, there is an indication in the statutory text that the Legislature assumed a
defendant first would seek relief in a habeas petition. Section 1170.95, subdivision (d)(2)
provides in pertinent part: “If there was a prior finding by a court or jury that the
petitioner did not act with reckless indifference to human life or was not a major
participant in the felony, the court shall vacate the petitioner’s conviction and resentence
the petitioner.” This provision requires trial courts to grant a section 1170.95 petition if a
court has reversed a special circumstance finding under Banks and Clark. (People v.
Ramirez, supra, 41 Cal.App.5th at p. 933.)
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Defendant relies on York, supra, 54 Cal.App.5th 250, which found the defendant
may bring a Banks/Clark challenge through a section 1170.95 petition. The York court
reasoned that because the statute does not include a counterpart to subdivision (d)(2)
accounting for a situation where there is a prior finding that a petitioner did act with
reckless indifference to human life and was a major participant in the underlying felony,
such a finding should not preclude a petitioner from relief. (York, at pp. 260-261, review
granted.) But this reasoning ignores that sections 188 and 189 after Senate Bill 1437
maintain liability for murder for those who were major participants who acted with
reckless indifference to human life. This situation is therefore accounted for in section
1170.95 because petitioners who had been found to have acted in such a manner would
not satisfy the requirement for eligibility that they “could not be convicted of first or
second degree murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a)(3).) This is defendant’s circumstance.
The York court also analyzed the “because of” Senate Bill 1437 provision, finding
that “even a petitioner who successfully challenged a special circumstance finding after
Banks and Clark, but before Senate Bill 1437 became effective, remained convicted of
murder. [Citation.] It took the changes wrought by Senate Bill 1437 to permit the
challenge to the murder conviction itself.” (York, supra, 54 Cal.App.5th at p. 261, review
granted.)
This analysis only confirms our conclusion. For defendants with a special
circumstance finding before Banks and Clark, there is an initial step before being eligible
for relief—invalidation of the special circumstance finding. Such invalidation, and
eventual eligibility, would not occur because of Senate Bill 1437, but because of habeas
relief under the Supreme Court’s analysis in Banks and Clark, or some other invalidating
mechanism outside of Senate Bill 1437. Without this first step, there is a valid finding
that the defendant was a major participant who acted with reckless indifference to human
life, and even after Senate Bill 1437, this finding can justify a murder conviction.
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This understanding also belies the “middle ground” approach recently developed
by some other courts that conclude: “[W]here a petitioner facing 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.” (People v.
Secrease (2021) 63 Cal.App.5th 231, 247, 255, review granted June 30, 2021, S268862;
People v. Pineda (2021) 66 Cal.App.5th 792, 801, review granted Sept. 29, 2021,
S270513.)
This process unnaturally grafts habeas-like relief onto section 1170.95
unsupported by any statutory language and runs counter to the purpose of the provision -
to provide relief for those eligible for resentencing because of legislative changes to the
murder statutes, not judicial interpretations to the special circumstance analysis. We
must assume the Legislature was aware of Banks and Clark when it passed Senate Bill
1437. (People v. Harrison (1989) 48 Cal.3d 321, 329 [“The Legislature, of course, is
deemed to be aware of statutes and judicial decisions already in existence, and to have
enacted or amended a statute in light thereof”].) Yet it made no mention in the statute of
performing a “sufficiency-of-the-evidence review” for a special circumstance finding to
address Banks and Clark. We refuse to bend the statutory language to support such an
interpretation.
We conclude, therefore, a section 1170.95 petition is not the proper avenue to
challenge a special circumstance finding. And since defendant’s special circumstance
finding was not previously overturned through a habeas corpus proceeding, the trial court
here properly denied defendant’s section 1170.95 petition.
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III
Senate Bill 775
Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) modified
section 1170.95 after briefing in this case. After ordering and receiving supplemental
briefing from the parties on Senate Bill No. 775, we find it does not affect the outcome of
this case because the changes do not address a special circumstance finding or the
Banks/Clark issue. Section 1170.95, however, does now require a prima facie hearing on
all petitions, and there does not appear to have been such a hearing in this matter. But
even if there was not, any error would be harmless under any standard because a prima
facie hearing could not change defendant’s special circumstance finding and his
ineligibility as a matter of law.
DISPOSITION
The trial court’s denial of defendant’s section 1170.95 petition is affirmed.
HULL, Acting P. J.
We concur:
HOCH, J.
KRAUSE, J.
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