Filed 5/5/22 P. v. Hearn CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081651
Plaintiff and Respondent,
(Super. Ct. No. SC076841A)
v.
CHRISTOPHER JAMES HEARN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez,
Eric L. Christoffersen, Amanda D. Cary, and William K. Kim, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and Snauffer, J.
INTRODUCTION
In 1999, a jury convicted petitioner Christopher James Hearn of the first degree
murder of I.T. (Pen. Code,1 §§ 187, subd. (a), 189, count 1) with the special circumstance
petitioner committed the murder while engaged in the commission or attempted
commission of robbery (§ 190.2, subd. (a)(17)(A)).2 For this offense, the trial court
sentenced petitioner to a term of life without the possibility of parole. (People v. Hearn
(Feb. 4, 2002, F034832) [as modified Feb. 27, 2002] [opn. ordered nonpub. May 1, 2002,
S105347] (Hearn).)
In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95.
The trial court initially found petitioner made a prima facie showing pursuant to section
1170.95 and issued an order to show cause. However, after a motion for reconsideration,
the trial court denied the petition on the ground the special circumstance finding made
petitioner ineligible for resentencing as a matter of law.
On appeal, petitioner contends the trial court erred in finding that the special
circumstance finding excluded him from resentencing relief. We conclude the special
circumstance finding is dispositive thereby making petitioner ineligible for resentencing
relief as a matter of law. Accordingly, we affirm the trial court’s order denying
resentencing relief pursuant to section 1170.95.
FACTUAL AND PROCEDURAL BACKGROUND
We include the statement of facts from our prior opinion in petitioner’s direct
appeal in full:3
1
Subsequent statutory references are to the Penal Code, unless otherwise
indicated.
2 Petitioner was convicted of additional offenses and enhancements, as described
below.
This court previously granted petitioner’s request for judicial notice of this
3
court’s prior opinion in petitioner’s direct appeal. We provide these facts because they
2.
“On April 9, 1996, an off-duty sheriff’s deputy entered [a liquor
store] in Ridgecrest. He found the store’s clerk, [I.T.], lying on his back
behind the counter in a pool of blood. The deputy quickly left the store and
called 911.
“[I.T.] had sustained three gunshot wounds, two to the head and one
through his left arm. There were no powder burns, and the shots were fired
from a large caliber gun, such as a .40 caliber. Five .40 caliber expended
casings were found in the store and an additional casing was found on the
victim’s gurney. Police also found a glass pipe, lighter and colored ski
mask near some dumpsters behind the store.
“Between 8:30 p.m. and 8:50 p.m. on April 9, witness Brian H[.]
drove past the [liquor] store and three people ran in front of his car. They
were wearing dark clothing and their faces were covered. [Brian] thought
two of the people were male, between five feet, ten inches and six feet, two
inches, and one was a female, much shorter, with a ponytail. He thought
the person with a ponytail was carrying a backpack.
“Annette R.’s Statements and Trial Testimony
“Barstow police detective Frank Espinoza assisted the Ridgecrest
police with the murder investigation. On December 5, 1997, he telephoned
Annette R. (who was now living in Nevada) and asked her about the
robbery and murder. He knew Annette R. because she had previously lived
in Barstow and Detective Espinoza was familiar with her. He attempted to
tape record the conversation, but only successfully taped portions of
Annette R.’s initial statement to police. During the conversation Annette R.
stated that she, [Barbara] Chavez, [Jeanette] Serafin and [petitioner] went to
Ridgecrest to do a robbery. Serafin stayed in the car, and Chavez and
Annette R. got out of the car with [petitioner]. [Petitioner] went into the
store and there were gunshots, and [petitioner] shot the clerk in the head
with a .38 or .357 caliber gun. Annette R. stated that she had better not be
arrested or she would change her story and reveal nothing.
“Later that same day, Detective Espinoza taped another telephone
conversation with Annette R. Annette R. stated she was outside the store
when she first heard gun shots, and that she ran into the store and did not
see the victim but thought he got shot in the head.
were relied on by the trial court. However, we do not rely on these facts in resolving the
issues presented in this appeal. (See § 1170.95, subd. (d)(3).)
3.
“On December 10, 1997, Annette R. was interviewed by Ridgecrest
Detective Ortiz. She told Ortiz that she heard two different guns, and that
the clerk shot first and then [petitioner] shot. She believed the victim was
shot in the head, but everything was blurry. She stated that [petitioner] shot
because the clerk shot first, and that she later heard rumors that [petitioner]
said she was the shooter.
“At trial, Annette R. testified under a grant of immunity. On April 9,
1996, she was 15 years old and living in Barstow with Barbara Chavez.
Chavez and Chavez’s cousin Serafin returned to Chavez’s house and told
Annette they were going to ‘pull a liq,’ meaning a robbery. Annette R.
agreed to participate. Serafin drove them to Chavez’s cousin’s house, a
woman known to Annette R. as ‘Gina Dean,’ whose actual name was
Regina Eason. Chavez told Eason they needed a male to go with them to
do the robbery, and Eason suggested her brother, [petitioner], who was
across the street. Annette R. went across the street to get [petitioner].
[Petitioner] agreed to go with them to Ridgecrest for the robbery, and
Eason gave a gun to [petitioner] and a gun to Chavez. Annette R. was
angry she was not given a gun. Eason was to receive a portion of the
robbery loot in return.
“Serafin then drove Annette R., Chavez and [petitioner] to
Ridgecrest. Chavez and Annette R. did not want to commit a robbery in
Barstow because they had already been questioned about a previous
robbery there. They drank beer and smoked marijuana during the car ride
to Ridgecrest. Once in Ridgecrest, they stopped at Chavez’s sister
Dolores’s house. They then went to the home of an unidentified man who
suggested the [liquor store] as a robbery target. Chavez, Serafin, Annette
R. and [petitioner] left to drive by the store. They had two ski masks and
were all wearing dark clothing. [Petitioner], who is about six feet tall, had
a ponytail.
“They drove back to Dolores’s house and waited there until after
dark. They then returned to the unidentified man’s house to plan the
robbery. Serafin was going to wait in the car by [a fast food restaurant]
across the street, [petitioner] would enter the store with a gun and Annette
R. and Chavez would enter the store after they had counted to three.
Annette R. or Chavez would then duct-tape the clerk. All four of them
participated in that conversation planning how the robbery would take
place.
“The four then went to the liquor store, and Serafin dropped them
off. The guns were in the backpack. [Petitioner] entered the store, and
Annette R. and Chavez waited outside. Annette R. heard gunshots almost
4.
immediately. She ran into the store and saw [petitioner] shoot the clerk
more than twice. [Petitioner] said ‘Fuck you, Cuz,’ and was leaning across
the counter as he shot the clerk. [Petitioner] went around the counter and
fired more shots. He then ran out of the store and Chavez and Annette R.
ran with him back to Serafin’s car.
“They drove back to Dolores’s house, with [petitioner] and Annette
R. lying down in the back seat and Chavez sitting in the front seat.
[Petitioner] cried and said he did not mean to do it. They left Dolores’s
house and returned to Eason’s house in Barstow. Chavez and Annette R.
told Eason that the clerk had been shot, and [petitioner] said nothing but
continued to cry.
“Regina Eason’s Statements and Trial Testimony
“Eason is [petitioner]’s sister. At trial she denied supplying any
guns for the robbery and denied that [petitioner] and Chavez returned to her
house together April 9th. [Petitioner] was drunk and did not arrive with
Chavez, who arrived later. Eason did not recall Annette R. being at her
house. Eason asked if anyone was killed, and Chavez told her [petitioner]
had to shoot to protect them. Eason walked [petitioner] to his mother’s
residence, and then to his girlfriend April’s house. Eason asked [petitioner]
if he thought he had killed anyone and he said ‘No.’
“Eason was interviewed by Detective Ortiz on December 31, 1997,
and on February 24, 1998. Eason initially denied knowing anything, but
later admitted she had given a gun to Chavez. She said [petitioner] was
present when Chavez and the other girls asked him to participate in a
robbery. The group returned and [petitioner] had been drunk and
hysterical. Annette R. told [petitioner] he had killed the clerk. Eason stated
she had difficulty understanding [petitioner] because he was so upset, but
she thought he had shot someone while defending Chavez and Annette R.
“In a second tape-recorded interview of Eason she denied many of
the statements she initially made. She stated that Chavez returned the gun
she had given her because it did not work, and she had heard nothing about
a robbery. She explained the change in her story by stating that she made
the earlier statements in an attempt to make her brother look better in case
he had done something wrong, but she did not know if any of it was the
truth.
5.
“J[ea]nette Serafin’s Statements and Trial Testimony
“Serafin testified at trial under grant of immunity. Serafin testified
that on the day of the robbery Chavez asked her to give her a ride to
Ridgecrest. Chavez brought along Annette R. and a small Black man she
had never seen before, called ‘Tim.’ She was unsure if [petitioner] was the
person she believed was called ‘Tim.’ She dropped ‘Tim,’ Chavez and
Annette R. off in front of the liquor store, and they returned a short time
later upset. She did not recall what they talked about and did not recall
seeing a gun or bullets.
“A prior interview of Serafin taped on December 5, 1997, was
played for the jury. At that time Serafin stated that Annette R. and Chavez
called the man with them ‘Tim.’ Serafin dropped Chavez, Annette R. and
‘Tim’ off in front of the liquor store and then heard shots. Chavez ran to
Serafin’s car and told her to start it. Serafin did not see a gun, but heard the
three keep asking who shot first. Serafin described ‘Tim’ as about the same
height as Chavez (short) and very thin.
“Serafin was interviewed again on October 20, 1998. The interview
was also taped and played for the jury. At that time Serafin stated that
Chavez wanted to borrow money from someone in Ridgecrest named Chris
or Jay, and Annette R. came along for the ride. She did not know the name
of the Black male who also rode with them. She dropped the three off on a
corner where they left to go borrow the money. They told her to wait by
[the fast food restaurant] so they could get something to eat on their way
out of town. She waited 15 or 20 minutes, and heard three gunshots.
Chavez came running to her car and seemed hysterical. Chavez and the
male told her to drive. She never contacted the police because she was
scared.
“Dolores Chavez’s Prior Statements and Testimony
“Dolores Chavez (Dolores), Barbara Chavez’s sister who is also
known as Nene, testified that she rode with Chavez, Annette R. and Serafin
to Ridgecrest. She said a male accompanied them that the other girls called
‘Chris,’ but she could not identify [petitioner] as that person. She said the
male was thin and had long hair. The group dropped her off at her
apartment and returned about 9:00 p.m., two hours later than they had said
they would return, and seemed in a rush. Chavez told her to hurry up.
“In a separate interview with detectives, Dolores gave a substantially
similar statement, and said Chavez told her ‘Chris’ and Annette R. had
6.
done it. Dolores said any rumor that Chris had not entered the store was
false, but that Chavez had never entered the store.
“Other Testimony
“Evelyn R[.], a relative of Barbara and Dolores Chavez and
J[ea]nette Serafin, testified that she had a conversation with [petitioner]’s
brother Frederick H[.]. Detective Ortiz testified [Evelyn] said that
Frederick told her that [petitioner] told Frederick he was at the store the
night of the shooting and had a gun but ran out of the store when he saw a
gun, however, [Evelyn] denied the statement at trial. Frederick told
Detective Ortiz that the information he (Frederick) had given to [Evelyn] he
received from his and [petitioner’s] father. Frederick has a mental problem,
and sometimes hears voices.
“Defense Case
“[Petitioner]’s wife (then girlfriend) April and his mother both
testified that [petitioner] was never gone from his mother’s house for more
than an hour or so in the weeks surrounding April 9, because April was due
to have a baby. They testified [petitioner] never came home crying.
“Kenneth [H.] testified that before becoming imprisoned for a parole
violation he asked Annette R. to watch four guns for him which were stored
in a Nike bag. The bag also contained ski masks with holes cut out. When
[Kenneth] was released from prison in July 1996, Annette R. told him the
guns had been stolen. However, she later told him when she was drunk that
she did not mean to do it, it was an accident and she did not ‘mean to shoot
the ol’ boy.’
“Pamela [M.], a friend of Annette R.’s, testified that Annette told her
about having committed a robbery like in the movie ‘Menace to Society.’
Annette R. said she and her ‘homey’ entered the store, she grabbed a ‘40
ounce’ then went up to the store counter and started firing the gun.
“The defense presented the testimony of a forensic analyst that there
was no evidence from the crime scene that the shots were fired from across
the counter.
“Yolanda [J.] testified at Eason’s trial that Annette R. had bragged
about being the shooter in an attempted robbery at a liquor store.
“Analyses of head hairs from a ski cap found outside the liquor store
ruled out [petitioner] as their source.” (Hearn, supra, F034832, fns.
omitted.)
7.
On April 2, 1999, the Kern County District Attorney filed an information charging
petitioner with premeditated first degree murder (§§ 187, subd. (a), 189; count 1) with the
special circumstances that the offense was committed during the commission or
attempted commission of robbery (§ 190.2, subd. (a)(17)(A)) and burglary (§ 190.2,
subd. (a)(17)(G)), along with a firearm enhancement (§ 12022.5, subd. (a)); second
degree burglary (§§ 459, 460, subd. (b); count 2) with a firearm enhancement (§ 12022.5,
subd. (a)); attempted robbery (§§ 212.5, subd. (c), 664; count 3) with a firearm
enhancement (§ 12022.5, subd. (a)); and conspiracy to commit robbery (§§ 182, subd.
(a)(1), 212.5, subd. (c); count 4)).
On December 16, 1999, a jury convicted petitioner of premeditated first degree
murder (§§ 187, subd. (a), 189; count 1) and found true the special circumstance that the
offense was committed during the commission or attempted commission of robbery
(§ 190.2, subd. (a)(17)(A))4, but found not true the firearm enhancement (§ 12022.5,
subd. (a)). The jury was unable to reach a verdict on count 2; the court subsequently
declared a mistrial on that count and the charge was dismissed on motion by the district
attorney. The jury found petitioner guilty of count 3, but found not true the firearm
enhancement (§ 12022.5, subd. (a)). The jury found petitioner guilty of count 4 and
found true the overt acts that he planned a robbery and drove the other participants to
Ridgecrest. However, as to count 4, the jury found not true the overt acts that petitioner
obtained a gun from Regina Eason to use in the robbery and that he entered the liquor
store in Ridgecrest.
4 The jury did not make a finding as to the special circumstance that the offense
was committed during the commission or attempted commission of burglary (§ 190.2,
subd. (a)(17)(G)), and the court determined it was not necessary for the jury to make a
finding as to that allegation in light of their inability to reach a verdict on count 2
(§§ 459, 460, subd. (b)). Therefore, we only address whether petitioner is ineligible for
section 1170.95 resentencing relief, as a matter of law, based on the jury’s true finding on
the robbery special circumstance allegation pursuant to section 190.2, subdivision
(a)(17)(A).
8.
On January 19, 2000, the trial court sentenced petitioner on count 1 to a term of
life without the possibility of parole. As to count 3, the trial court sentenced petitioner to
the upper term of 30 months, but stayed the sentence pursuant to section 654. As to
count 4, the trial court sentenced petitioner to the upper term of 5 years, but stayed the
sentence pursuant to section 654. On appeal, this court affirmed the judgment. (Hearn,
supra, F034832.)
On July 18, 2019, petitioner, in propria persona, filed a petition for resentencing
pursuant to section 1170.95. In the form petition, petitioner stated a complaint,
information, or indictment was filed against him that allowed him to be prosecuted under
a theory of felony murder or murder under the natural and probable consequences
doctrine; he was convicted of first or second degree murder at trial; and 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. He also requested the court appoint counsel during
the resentencing process and stated he was convicted of first degree murder and could not
now be convicted because 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 that the murder victim was not a peace officer acting in the performance of
his or her duties.
The court subsequently appointed counsel to represent petitioner.
In response, the district attorney filed a motion to dismiss the petition based on the
unconstitutionality of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill
No. 1437) and petitioner, through counsel, filed a reply arguing that the amended law was
constitutional. The trial court concluded Senate Bill No. 1437 is constitutional and
denied the motion to dismiss.
9.
Subsequently, the district attorney filed a response to the petition on the merits,
arguing the special circumstance finding established the jury had found petitioner to be a
major participant who acted with reckless indifference to human life, rendering him
ineligible for resentencing. Petitioner filed a reply arguing he had made a prima facie
showing he is entitled to resentencing relief. Petitioner specifically argued our Supreme
Court’s holding in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark), both filed after the jury’s verdict, altered the standards for
a “major participant” who acted with “reckless indifference to human life,” and thus the
special circumstance finding did not establish facts necessary to uphold his conviction for
purposes of Senate Bill No. 1437. Petitioner subsequently filed a supplemental reply,
expanding on his argument that he was not a major participant who acted with reckless
indifference to human life under the standards announced under Banks and Clark.
On June 17, 2020, the trial court concluded that petitioner had made a prima facie
showing and issued an order to show cause. In light of the trial court’s finding, the
district attorney filed a motion for reconsideration based on newly published case law;
petitioner subsequently filed an opposition.
On August 21, 2020, the trial court granted the motion for reconsideration and
found that petitioner had not established a prima facie case pursuant to section 1170.95.
Specifically, the trial court reasoned:
“In reviewing the most recent cases . . . the Court finds the Galvan[5]
case the more persuasive and better reasoned Opinion. And it’s also
5 People v. Galvan (2020) 52 Cal.App.5th 1134 (Galvan).
10.
significant that the Galvan Court distinguished and disagreed with the
rulings in the Torres[6] and Smith[7] cases and explaining why.
“And the Court finds the Galvan Opinion and the reasoning of that
Opinion more persuasive, explaining that if the issue about whether there’s
sufficient evidence to support the special circumstance findings, the way it
must be addressed now, in light of the change of the law after Banks[,
supra, 61 Cal.4th 788] and Clark[, supra, 63 Cal.4th 522], is that the
burden is on the defense in a habeas corpus proceeding to establish that
there is not sufficient evidence to support that special circumstance finding
in light of the new case law.
“And the Galvan Court -- and I agree with their reasoning -- states
that it would be inappropriate to shift the burden to the People to now have
to prove that beyond a reasonable doubt through the 1170.95 proceedings.
That would be inconsistent with the legislative intent, in looking at the
language of the statute.
“So I do find Galvan and Gomez[8]to be persuasive to reach a
tentative decision to grant the motion for reconsideration and find that
[petitioner] has not made a prima facie case as a matter of law.” (Italics
added.)
The court subsequently confirmed its tentative ruling, stating, “I do agree with the
reasoning and the Galvan Court that Section 1170.95 is not the proper vehicle to
challenge the special circumstance finding in this case and that the challenge would be
properly brought as a writ of habeas corpus.” The court further found petitioner
ineligible for resentencing as a matter of law, and that he had not met his burden to
establish a prima facie case. Accordingly, the petition was denied.
A timely appeal followed.
6People v. Torres (2020) 46 Cal.App.5th 1168, 1179, review granted June 24,
2020, S262011 (Torres), abrogated on another ground by People v. Lewis (2021) 11
Cal.5th 952, 962-963 (Lewis).
7
People v. Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020,
S262835 (Smith).
8
People v. Gomez (2020) 52 Cal.App.5th 1, review granted October 14, 2020,
S264033 (Gomez).
11.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 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 in the underlying felony who acted
with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill
accomplished this task by adding three separate provisions to the Penal Code. (People v.
Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable
consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a
principal to act with malice aforethought before he or she may be convicted of murder.
(§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to amend the felony-
murder rule, the bill added section 189, subdivision (e):
“A participant in the perpetration or attempted perpetration of [qualifying
felonies] 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 reckless
indifference to human life, as described in subdivision (d) of Section
190.2.”9 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill added section 1170.95 to provide a procedure for those convicted of a
qualifying offense “to seek relief under the two ameliorative provisions above.” (Gentile,
at p. 843.) This procedure is available to persons 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, attempted
9Additionally, section 189 was amended to allow for felony-murder liability
where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672.)
12.
murder under the natural and probable consequences doctrine, or manslaughter.”
(§ 1170.95, subd. (a).)
“Section 1170.95 lays out a process” for a person convicted of one of the
aforementioned offenses “to seek vacatur of his or her conviction and resentencing.”
(Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the
sentencing court averring that:
“(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, or attempted murder under the natural and
probable consequences doctrine[;]
“(2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted
murder[; and]
“(3) The petitioner could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective January 1,
2019.” (§ 1170.95, subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A); accord,
Lewis, supra, 11 Cal.5th at pp. 959-960.)
Additionally, the petition shall state “[w]hether the petitioner requests the appointment of
counsel.” (§ 1170.95, subd. (b)(1)(C).)
If a petition fails to contain the required information and the information cannot be
“readily ascertained” by the court, the petition may be denied without prejudice to the
filing of another petition. (§ 1170.95, subd. (b)(2).) Otherwise, counsel must be
appointed, if requested. (§ 1170.95, subd. (b)(3).) The prosecutor must file a response
and the petitioner may file a reply. The trial court must then hold a hearing to determine
if the petitioner has made a prima facie showing that he or she is entitled to relief.
(§ 1170.95, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making
this determination, the court may rely on the record of conviction. (Lewis, at pp. 970-
13.
971.) The record of conviction includes, but is not limited to, jury instructions and
verdict forms. (See generally id. at p. 972.) However, the prima facie inquiry is limited
and, at this stage of the proceedings, the court “should not engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion.’ ” (Id. at pp. 971-972.)
If the court determines the petitioner has met his or her prima facie burden, “the
trial court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder[, attempted murder, or manslaughter] conviction and to resentence the
petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at p. 853; accord,
§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must “prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd.
(d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet
their respective burdens. The admission of evidence at the hearing is governed by the
Evidence Code. However, the court also “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,” as well as the “procedural
history of the case recited in any prior appellate opinion.” (§ 1170.95, subd. (d)(3).)
Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b)
of section 872 is inadmissible at the evidentiary hearing, unless made admissible by
another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)
II. Analysis
Petitioner contends the trial erred in finding that the special circumstance finding
automatically excluded him from section 1170.95 resentencing relief, as a matter of law.
Specifically, petitioner argues that because the special circumstance finding predated
both Banks and Clark, it is unclear whether a jury today would conclude that he was a
“major participant” who acted with “reckless indifference to human life.” Therefore, the
jury’s true finding on the special circumstance cannot automatically exclude him from
relief. We disagree and conclude the special circumstance finding is dispositive thereby
14.
making petitioner ineligible for resentencing as a matter of law. Moreover, we conclude
that Banks and Clark did not substantively change the language of section 190.2,
subdivision (d) and that the proper vehicle to challenge a special circumstance finding is
not through a section 1170.95 petition, but rather through a petition for writ of habeas
corpus.
A. The Special Circumstance Finding is Dispositive.
To be eligible for relief pursuant to section 1170.95, petitioner must not have been
the actual killer, must not have acted with the intent to kill or malice aforethought, and
must not have been a major participant in the underlying felony who acted with reckless
indifference to human life. (§§ 188, subd. (a)(3), 189, subd. (e), 1170.95, subd. (a)(3);
see Gentile, supra, 10 Cal.5th at p. 842.) Here, as to the first degree murder count, the
jury found true the robbery special circumstance (§ 190.2, subd. (a)(17)(A)). To find this
special circumstance true, the jury was required to find that petitioner acted “with
reckless indifference to human life and as a major participant” in aiding and abetting the
commission of the underlying felony. (§ 190.2, subd. (d).) “ ‘[T]he language of the
special circumstance tracks the language of Senate Bill [No.] 1437 and the new felony-
murder statutes.’ ” (People v. Simmons (2021) 65 Cal.App.5th 739, 747, review granted
Sept. 1, 2021, S270048.) Therefore, by finding the special circumstance true, the jury
made the requisite findings necessary to sustain a felony-murder conviction under the
amended law. Petitioner is therefore ineligible for resentencing relief pursuant to section
1170.95, as a matter of law.
B. A pre-Banks and Clark Special Circumstance Finding Pursuant to Section
190.2, subdivision (a)(17) Precludes Section 1170.95 Resentencing Relief
as a Matter of Law.
Nevertheless, petitioner argues that the special circumstance finding does not
render him ineligible for resentencing relief as a matter of law. Specifically, petitioner
cites Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522 for the proposition
15.
that these cases narrowed the legal meaning of “major participation” and “reckless
indifference to human life.” “Banks and Clark ‘clarified “what it means for an aiding and
abetting defendant to be a ‘major participant’ in a crime who acted with a ‘reckless
indifference to human life.’ ” ’ [Citation.] Banks identified certain factors to consider in
determining whether a defendant was a major participant; Clark identified factors to
guide the determination of whether the defendant acted with reckless indifference to
human life.” (Gomez, supra, 52 Cal.App.5th at p. 13, fn. 5, review granted.) Courts of
Appeal are split on the question of whether a special circumstance finding entered prior
to Banks and Clark renders a petitioner ineligible for section 1170.95 resentencing relief
as a matter of law (see People v. Jones (2020) 56 Cal.App.5th 474, 478-479, review
granted Jan. 27, 2021, S265854 (Jones) [collecting cases]), and our Supreme Court has
granted review to decide the issue (People v. Strong (Dec. 18, 2020, C091162) [nonpub.
opn.], review granted Mar. 10, 2021, S266606).
Courts which have held that a pre-Banks and Clark felony-murder special-
circumstance finding bars section 1170.95 resentencing relief have reasoned that Banks
and Clark merely clarified the law as it always was. (Jones, supra, 56 Cal.App.5th at
pp. 482, 484, review granted; accord, People v. Nunez (2020) 57 Cal.App.5th 78, 92,
review granted Jan. 13, 2021, S265918; People v. Allison (2020) 55 Cal.App.5th 449,
458.) These courts further note that our Supreme Court does not require juries to be
instructed on the Banks and Clark clarifications. “Rather, while CALCRIM No. 703 now
includes optional language drawn from Banks and Clark regarding the factors a jury may
consider, ‘[t]he bench notes to the instruction state that Banks “stopped short of holding
that the court has a sua sponte duty to instruct on those factors,” and Clark “did not hold
that the court has a sua sponte duty to instruct on those factors.” ’ ” (Nunez, at pp. 92-93;
accord, Jones, at p. 484; Allison, at pp. 458-459.) Thus, these courts found “no basis to
conclude as a general matter that a pre-Banks and Clark jury was instructed differently
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than a post-Banks and Clark jury, or resolved different factual issues, answered different
questions, or applied different standards.” (Nunez, at p. 94.)
These courts have also held that an attack on a special circumstance finding in a
section 1170.95 proceeding effectively constitutes a collateral attack on the judgment.
(Galvan, supra, 52 Cal.App.5th at p. 1142; Gomez, supra, 52 Cal.App.5th at p. 16,
review granted.) According to these courts, a petitioner who wishes to argue the special
circumstance finding is invalid under current law must first seek to invalidate that finding
through a petition for writ of habeas corpus before seeking resentencing pursuant to
section 1170.95. (Galvan, at p. 1142; Gomez, at p. 17; Jones, supra, 56 Cal.App.5th at
p. 485, review granted.) These courts reason that a contrary interpretation “would read
into section 1170.95 a new procedure allowing petitioners to ignore a special
circumstance finding—no matter how well supported in the record—as well as the
recognized method of challenging it. Such petitioners would be allowed to relitigate a
prior jury finding at an evidentiary hearing where the prosecution bears the burden of
proving the truth of the finding, beyond a reasonable doubt, a second time.” (Jones, at
p. 485.)
On the other hand, courts that have found a special circumstance finding
insufficient to render a petitioner ineligible for relief have reasoned that Banks and Clark
“construed section 190.2, subdivision (d) in a significantly different, and narrower
manner than courts had previously construed the statute.” (Torres, supra, 46 Cal.App.5th
at p. 1179, review granted; accord, People v. Harris (2021) 60 Cal.App.5th 939, 958,
review granted Apr. 28, 2021, S267802.) Thus, these courts surmised that a petitioner
with a pre-Banks and Clark special circumstance finding may have been convicted based
on “conduct that is not prohibited by section 190.2 as currently understood.” (Torres, at
p. 1180; accord, Harris, at p. 958; People v. York (2020) 54 Cal.App.5th 250, 258, review
granted Nov. 18, 2020, S264954; Smith, supra, 49 Cal.App.5th at p. 93, review granted.)
To the extent the jury’s finding on a felony-murder special circumstance is legally
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insufficient under Banks and Clark, it cannot refute a prima facie showing of entitlement
to resentencing relief. (People v. Secrease (2021) 63 Cal.App.5th 231, 256, review
granted June 30, 2021, S268862.) Accordingly, in considering whether a petitioner is
entitled to relief pursuant to section 1170.95, the trial court must first determine whether
“the evidence presented at trial was sufficient to support the felony-murder special-
circumstance finding under Banks and Clark.” (Secrease, at p. 264.)
This court has decided to follow the line of authority holding that a special
circumstance finding precludes relief as a matter of law. (People v. Simmons, supra, 65
Cal.App.5th at pp. 748-749, review granted.) Banks and Clark did not state a new rule of
law. Rather, they relied on the United States Supreme Court’s decisions in Enmund v.
Florida (1982) 458 U.S. 782 and Tison v. Arizona (1987) 481 U.S. 137 to clarify
principles that had long been in existence at the time petitioner was convicted. (See In re
Miller (2017) 14 Cal.App.5th 960, 978; accord, People v. Allison, supra, 55 Cal.App.5th
at p. 458; Gomez, supra, 52 Cal.App.5th at p. 13, fn. 5, review granted.) Enmund
prohibited felony-murder liability for a defendant that “did not commit the homicide, was
not present when the killing took place, and did not participate in a plot or scheme to
murder,” and explained that, to be liable for felony murder, the aider and abettor must
himself “kill, attempt to kill, or intend that a killing take place or that lethal force will be
employed.” (Enmund, at pp. 795, 797.) Tison held that, “major participation in the
felony committed, combined with reckless indifference to human life, is sufficient to
satisfy the Enmund culpability requirement.” (Tison, at pp. 151, 158.) As Banks noted,
this language from Tison was later codified by the California electorate in section 190.2,
subdivision (d). (Banks, supra, 61 Cal.4th at p. 800.) To the extent Banks and Clark
illuminated factors a fact finder might consider in determining whether a defendant was a
major contributor who acted with reckless indifference to human life, they drew those
factors from Edmund and Tison. (See Banks, at pp. 801, 803; see also Clark, supra, 63
Cal.4th at pp. 615, 618-623.) These principles existed when petitioner was convicted
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and, absent a determination on direct appeal or in habeas that the evidence was
insufficient to support the jury’s finding, there is no basis to conclude petitioner’s jury
applied different standards than those described in Banks and Clark.
Accordingly, petitioner is ineligible for resentencing on his murder conviction as a
matter of law.
DISPOSITION
The order dismissing petitioner’s section 1170.95 petition is affirmed.
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