Filed 6/1/22 P. v. Vazquez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B302686
(Super. Ct. No. CR44630)
Plaintiff and Respondent, (Ventura County)
v.
JOSE ALBERTO ALCANTAR
VAZQUEZ,
Defendant and Appellant.
In 1999, appellant Jose Alberto Alcantar Vazquez was
convicted of first-degree murder (Pen. Code,1 §§ 187, subd. (a),
189) and other crimes. The jury also found true special
circumstance allegations that the murder occurred during the
commission of an attempted kidnapping and burglary (§ 190.2,
subds. (a)(17)(B) & (G)). In 2019, appellant filed a petition for
resentencing under section 1170.95. In denying the petition
1 All undesignated statutory references are to the Penal
Code.
following an evidentiary hearing, the trial court found appellant
was ineligible for relief under section 1170.95 because the
evidence, when viewed in light of the factors set forth in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark), was sufficient to support the jury’s true
findings on the felony-murder special circumstance allegations,
i.e., that appellant was a major participant in the burglary and
attempted kidnapping and acted with reckless indifference to
human life. Appellant contends among other things that the
court erred in failing to apply the beyond-a-reasonable-doubt
standard of proof in making its findings, as set forth in
subdivision (d) of section 1170.95. We affirm.
FACTS AND PROCEDURAL HISTORY2
Appellant married Monica Donahoo in June of 1997. They
had dated each other when they were teenagers, but had broken
up because their parents did not approve of the relationship. In
the intervening years, Donahoo married a professional gambler
several years her senior, who died of cancer in 1996. She
inherited his house, a large sum of cash, and his interest in the
Players Club card room, a poker parlor.
After her first husband’s death, but before her marriage to
appellant, Donahoo became enamored with Felipe Arambula, the
victim in this case. Arambula was married and had three
children. He was the part owner in a Mexican restaurant, and
employees of the restaurant reported that Donahoo often visited
2The relevant facts are recited from our prior opinion
affirming the judgment against appellant on direct appeal.
(People v. Vazquez (Apr. 24, 2001, B135076) [nonpub. opn.].) We
previously granted appellant’s request for judicial notice of this
opinion and the trial transcripts in the prior appeal.
2
and brought Arambula gifts. Arambula instructed his employees
not to tell Donahoo that he was married. In March of 1997,
Donahoo gave Arambula two cashiers checks for $25,000 apiece,
which he later used to purchase a home for his family. She also
gave him a power of attorney to sell a Lincoln Town Car, which
he drove for several months and eventually sold for $10,000.
Manny Vasquez (no relation to appellant) worked at Jiffy
Lube and serviced appellant’s car on May 3, 1997. During the
summer of 1997, Vasquez asked his friend Erick Gonzalez to help
him kidnap someone. He told Gonzalez that he had been hired by
a person who worked at or owned a card club, and that the
intended victim owed that person a lot of money. Vasquez
showed Gonzalez a box containing rope, tape and handcuffs, and
said they were going to take the guy to “Jose’s” house. He
showed Gonzalez a gun and said he got it from “Jose.” Vasquez
later introduced Gonzalez to appellant, who asked Gonzalez
where he could buy guns. Gonzalez told appellant he might be
able to get guns for him, but ultimately decided not to participate
in the kidnapping.
Vasquez asked another friend, Angel Gutierrez, if he would
be interested in helping Vasquez kidnap somebody. Vasquez told
Gutierrez that the man who was hiring him owned a card room.
He took Gutierrez to the house where appellant and Donahoo
lived, but appellant was not home. Vasquez also took Gutierrez
to the restaurant owned by Arambula and told him the owner
was the man he planned to kidnap. Gutierrez declined to
participate in the kidnapping. Vasquez later introduced him to
appellant in the parking lot of a Toys R Us, and told appellant,
“[T]his is the guy I tried to hire.”
3
Vasquez also discussed his plan with a third friend,
Richard Garcia. Vasquez did not ask Garcia to help him, but told
him that the owner of the Players Club was going to pay him to
do a kidnapping. Vasquez told Garcia that he got a gun from the
man who owned the club.
On June 13, 1998, Vasquez spent the afternoon and early
evening with Gonzalez, Gutierrez and Garcia. David Hampton
was also with the group. Vasquez showed his friends a gun and a
stun gun. At about 9:00 p.m., Vasquez and Hampton left the
group, saying they were going to “handle this thing.”
Vasquez and Hampton entered Arambula’s home at about
9:45 p.m., armed with a nine-millimeter Beretta and a stun gun.
Arambula had not yet returned home, but his wife was putting
their children to bed. Vasquez ordered Arambula’s wife to
remain in one of the bedrooms and said they would not hurt her.
Vasquez told her that Arambula owed $100,000, and that they
were there for the money. Arambula’s wife did not see Hampton,
but heard someone talking on the phone in another room of the
house. She believed that a third person was present.
Arambula came home shortly after 10:00 p.m., carrying
over $2,000 in cash receipts from his restaurant. His wife heard
a struggle and the buzzing sound of a stun gun, followed by
several gunshots. Vasquez and Hampton fled the house.
Arambula had been shot six times by a nine-millimeter weapon
and died from his wounds. A Nokia cellular phone and a single
athletic shoe were discovered at the scene.
Vasquez and Hampton spoke to Gonzalez, Gutierrez and
Garcia after the shooting and described what had happened.
They said that when Arambula came home, they used the stun
gun and tried to grab him but he put up a struggle. Vasquez
4
dropped the nine-millimeter weapon during the struggle and
Hampton picked it up and shot Arambula. Vasquez said he had
dropped his cellular phone at the house and Hampton said he
had lost one of his shoes.
The cellular phone was registered in the name of Vasquez’s
mother. Telephone company records showed that a few minutes
before the shooting, several calls were made from that cellular
phone to appellant’s residence. There had also been several calls
between the two telephone numbers during the previous year.
Vasquez went into hiding and had not been located at the time of
appellant’s trial. Before he disappeared, Vasquez met briefly
with appellant at a Black Angus restaurant.
Hampton met with his parents a few days after the
shooting and told them what had happened. He showed them a
wad of cash and said he had been paid $1,000. Appellant
purchased a one-way airline ticket for Hampton to Austin, Texas
and arranged for Hampton to stay with a friend of his. Hampton
and appellant spoke on the telephone several times while
Hampton was in Texas. Hampton was eventually apprehended
but did not testify at appellant’s trial.
Appellant and Donahoo flew to Mexico after the shooting.
Appellant was arrested upon their return in August of 1998, and
was interviewed by police. He denied knowing any details about
Donahoo’s former relationship with Arambula, but said he had
noticed that she behaved strangely one day when they went to
Arambula’s restaurant. Later, a man appellant did not know
approached him at a gas station, told him to watch his back, and
mentioned that name “Felipe.” Appellant wanted to find out
what was going on, so he asked Vasquez to contact Arambula and
set up a meeting. Appellant claimed he only wanted Vasquez to
5
tell Arambula that he wanted to talk to him; he did not want
Arambula to be kidnapped or harmed in any way. When he
learned about what had happened, he was frightened, so he gave
$300 to Hampton and arranged for him to go to a friend’s house
in Texas.
A jury convicted appellant of murder, attempted
kidnapping (§§ 207, subd. (a), 664), burglary (§ 459), assault with
a stun gun (§ 244.5, subd. (b)), and false imprisonment by
violence (§ 236). The jury also found true allegations that the
murder occurred during the commission of a burglary and
attempted kidnapping (§ 190.2, subds. (a)(17)(B) & (G)), and that
appellant was armed with a firearm and had furnished a firearm
to another during the commission of each offense except the
assault with a stun gun (§§ 12202, subd. (a)(1)), 12022.4). The
trial court sentenced him to life without the possibility of parole
plus four years and eight months. We subsequently affirmed the
judgment on appeal. (People v. Vazquez, supra, B135076.) In
2002, we summarily denied appellant’s petition for a writ of
habeas corpus in which he contended among other things that his
appellate counsel had provided ineffective assistance by failing to
challenge the special circumstance findings. (In re Vazquez (Apr.
3, 2002, B157027).)
Our Supreme Court’s decision in Banks was issued in 2015,
and Clark was issued in June 2016. In April 2017, appellant filed
a petition for a writ of habeas corpus in the trial court alleging
that the evidence was insufficient to support the special
circumstance findings, i.e. that he was a major participant in the
underlying felonies who acted with reckless indifference to
human life. On May 9, 2017, Ventura County Superior Court
Judge Ryan Wright issued a written ruling denying the petition
6
on the merits.3 We summarily denied appellant’s ensuing
Habeas petition.
In 2019, appellant filed a petition for resentencing under
section 1170.95. Because the trial judge who sentenced appellant
had retired, the matter was assigned to Judge Anthony Sabo.
(§ 1170.95, subd. (b)(1).) In his petition, appellant reiterated his
rejected habeas claim that the evidence was insufficient to
support the jury’s findings that he was a major participant in the
underlying felonies and acted with reckless indifference to
human life. In opposing the motion, the People argued among
other things that the jury’s true findings on the felony-murder
allegations categorically precluded appellant from obtaining
relief under section 1170.95.
The trial court’s ensuing order setting the matter for an
evidentiary hearing made no mention of this request.4
In denying the petition the trial court stated that it
reviewed the trial transcripts, our opinion affirming the
judgment on direct appeal, the probation report, and appellant’s
habeas petition. It found the evidence sufficient to support the
special circumstance finding. It stated that its task was to
“examine[] the evidence to determine if, when viewed in the light
most favorable to the verdict, each essential element of the crime
was proven beyond a reasonable doubt.”
DISCUSSION
Appellant contends the order denying his section 1170.95
petition must be reversed because the trial court erroneously
3On our own motion, we take judicial notice of these court
records. (Evid. Code, § 452, subd. (d).)
4 Section 1170.95, subdivision (c).
7
applied the substantial evidence standard of review in concluding
the evidence was sufficient to support the jury’s findings that he
was a major participant in the underlying felonies and acted with
reckless indifference to human life.5 In response, the People
reassert their claim below that the jury’s true findings on the
felony-murder special circumstance allegations categorically
preclude appellant from obtaining relief under section 1170.95.6
Although the jury made those findings before Banks and Clark
were decided, the People contend that such findings are binding
unless and until appellant succeeds in having them reversed
through habeas proceedings. The People also contend the court
applied the correct standard of review in concluding the evidence
was sufficient to support the special circumstance findings in
light of Banks and Clark, and that the court did not err in so
finding.
Our Supreme Court has granted review to decide whether a
felony-murder special-circumstance finding made before Banks
and Clark precludes a petitioner from making a prima facie
showing of eligibility for relief under section 1170.95. (People v.
Strong (Dec. 18, 2020, C091162) [nonpub. opn.], rev. granted
5 Appellant also contends that the court erroneously relied
on the probation report in making its findings. This claim was
not raised below and is thus forfeited. In any event, we do not
consider the probation report in concluding that the evidence at
trial was sufficient to support the jury’s special circumstance
findings under Banks and Clark. (See post, at pp. 12-16.)
6 We reject appellant’s contention that the People forfeited
this claim by failing to appeal from the trial court’s order to show
cause. (People v. Medrano (2021) 68 Cal.App.5th 177, 182 [order
to show cause under section 1170.95 is not an appealable order].)
8
Mar. 10, 2021, S266606.) Some courts have held that petitioners
with pre-Banks/Clark special circumstance findings are not
barred from seeking relief under section 1170.95 and are entitled
to factfinding following an evidentiary hearing. (See People v.
Price (2021) 71 Cal.App.5th 1128, 1147 (Price), review granted
Feb. 9, 2022, S272572; see also ibid., fn. 10, and cases cited
therein, including People v. Gomez (2020) 52 Cal.App.5th 1, 16-17
(Gomez), review granted Oct. 14, 2020, S264033.) Others have
held that a special circumstance finding made prior to Banks and
Clark bars relief “unless and until the petitioner first obtains a
ruling, on direct appeal or habeas corpus review, that the special
circumstance finding is not supported by substantial evidence
under the Banks/Clark standard.” (Price, supra, 71 Cal.App.5th
at p. 1147, fn. omitted; see also ibid., fn. 9, and cases cited
therein, including People v. Smith (2020) 49 Cal.App.5th 85, 95
(Smith), review granted July 22, 2020, S262835.)
A third line of cases provide that “‘where 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, [either] at the trial or appellate level,’ he or she may
seek resentencing under section 1170.95, but the resentencing
court should undertake a sufficiency-of-the-evidence analysis ‘at
the prima facie entitlement-to-relief stage of a resentencing
proceeding under subdivision (c) of [section 1170.95].’ [Citation.]
Only if the resentencing court first determines the record of
conviction does not contain substantial evidence to support the
finding under Banks and Clark is the petitioner entitled to an
order to show cause and an evidentiary hearing. [Citations.] If
the resentencing court concludes sufficient evidence in the trial
record ‘meets the minimum threshold of personal culpability set
9
by Banks and Clark,’ the felony-murder special circumstance
finding will ‘foreclose resentencing as a matter of law.” (Price,
supra, 71 Cal.App.5th at p. 1149, quoting People v. Secrease
(2021) 63 Cal.App.5th 231, 261 (Secrease), review granted June
30, 2021, S268862, fn. omitted; see also ibid., fn. 13, and cases
cited therein.)
“The Secrease and Gomez lines of cases agree that ‘section
1170.95, subdivision (c) cannot reasonably be read to permit a
“do-over” of factual issues that were necessarily resolved against
a section 1170.95 petitioner by a jury. [Citations.] Both lines of
cases hold that Banks and Clark require substantial evidence
review of a previous special circumstance finding made under
section 190.2 before an individual can seek relief under section
1170.95. They disagree primarily on whether that review must
be performed by an appellate court via habeas corpus or direct
appeal or may be accomplished by a trial court considering a
section 1170.95 resentencing petition. The Smith line of cases, on
the other hand, interpret Senate Bill No. 1437 . . . as affording a
new and different remedy to petitioners raising such a challenge,
an evidentiary hearing under section 1170.95, subdivision (d), at
which the parties may submit additional evidence and the People
bear the burden of proof to show beyond a reasonable doubt that
the petitioner is ineligible for resentencing, meaning that he
meets one of the three criteria for murder stated in section 189,
subdivision (e), which are the same as the special circumstances
outlined in section 190.2.” (Price, supra, 71 Cal.App.5th at pp.
1149-1150, fn. omitted.)
We agree with our colleagues in Price that “the Secrease
and Gomez lines of cases have the better argument” on this issue.
(Price, supra, 71 Cal.App.5th at p. 1150.) Senate Bill No. 1437
10
“‘did not change any of the requirements for the special
circumstance finding announced in Banks and Clark.’ The
remedy the Banks and Clark decisions provide for special
circumstance findings is not an evidentiary hearing but a form of
substantial evidence review.” (Ibid.) We also “disagree with
cases like Smith that posit that relitigation of special
circumstance findings should be permitted under section 1170.95
because ‘the jury did not have the same questions before them’ in
cases decided prior to Banks and Clark as in cases decided after
them. [Citation.] There is no indication the questions put to the
jury have changed as a result of Banks and Clark. ‘[O]ur
Supreme Court has not required that juries be instructed on the
clarifications, and in the wake of Banks and Clark, no mandatory
language or material changes were made to the CALCRIM
special circumstance instructions. [Citations.]” (Price, at
p. 1152.)7
As we have noted, the Gomez and Secrease line of cases
disagree on whether an individual seeking a Banks/Clark review
must do so in an appeal or habeas petition (e.g., Gomez, supra, 52
Cal.App.5th at pp. 16-17), or may instead obtain such review at
7 After the parties appeared at oral argument, we deferred
submission of the matter to allow them to submit supplemental
briefs regarding the retroactivity of the amendments to section
1170.95 that went into effect on January 1, 2022, pursuant to
Senate Bill No. 775. As relevant here, subdivision (d)(3) of
section 1170.95 was amended to make clear that the burden of
proof at an evidentiary hearing is proof beyond a reasonable
doubt, and to more specifically set forth the type of evidence that
may be admitted at such hearings. Because we conclude that
appellant was not entitled to an evidentiary hearing, these recent
statutory changes are irrelevant to our resolution of this appeal.
11
the prima facie stage of a section 1170.95 petition (e.g., Secrease,
supra, 63 Cal.App.5th at p. 255). The Secrease line of cases
recognize, however, that review at the prima facie stage of the
petition is warranted only if the petitioner “has never been
afforded a Banks and Clark sufficiency-of-the-evidence review by
any court, [either] at the trial or appellate level.” (Secrease, at
p. 255.) Here, appellant filed a post-Banks/Clark habeas petition
in the trial court and Judge Wright issued a written ruling
denying the petition on the merits. Although the order did not
cite to Clark, the Banks and Clark factors overlap. (Clark, supra,
63 Cal.4th at pp. 614-615; In re Loza (2017) 10 Cal.App.5th 38,
52.)
In any event, the evidence is sufficient to support the jury’s
true findings on the felony-murder special circumstance
allegations. (See People v. Law (2020) 48 Cal.App.5th 811, 822,
review granted July 8, 2020, S2262490 [“Whether there is
sufficient evidence that [an individual] was a major participant
. . . who acted with reckless indifference to human life is a
question we can decide on appeal”].)
A “major participant” in a felony is one whose “personal
involvement” is “greater than the actions of an ordinary aider
and abettor to an ordinary felony murder.” (Banks, supra, 61
Cal.4th at p. 802.) An individual acts with reckless indifference
to human life when he or she ““‘knowingly engag[es] in criminal
activities known to carry a grave risk of death.’”” (Id. at p. 801,
quoting People v. Estrada (1995) 11 Cal.4th 568, 577, quoting
Tison v. Arizona (1987) 481 U.S. 137, 157 [95 L.Ed.2d 127].) This
standard “has a subjective and an objective” component. (In re
Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).) To satisfy the
subjective component, “‘[t]he defendant must be aware of and
12
willingly involved in the violent manner in which the [underlying
felony] is committed,’ and . . . must consciously disregard ‘the
significant risk of death his or her actions create.’” (Ibid., quoting
Banks, at p. 801.) The issue is whether the defendant evinces “a
willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire
that death as the outcome of his actions.” (Clark, supra, 63
Cal.4th at p. 617.) To satisfy the objective component, the risk of
death ““‘must be of such a nature and degree that, considering
the nature and purpose of the [defendant’s] conduct and the
circumstances known to him . . . , its disregard involves a gross
deviation from the standard of conduct that a law-abiding person
would observe in the [defendant's] situation.’”” (Scoggins, at
p. 677, quoting Clark, at p. 617.)
Banks and Clark instruct that the totality of the
circumstances should be examined when evaluating the extent of
an individual’s participation in an underlying felony and suggest
several relevant but nondispositive factors to consider: (1) “Did
the defendant use or know that a gun would be used during the
[underlying] felony,” and “[h]ow many weapons were ultimately
used?”; (2) “Was the defendant physically present at the crime,”
such that he had “the opportunity to restrain the crime or aid the
victim?”; (3) “What was the duration of the interaction between
the perpetrators of the [underlying] felony and the victims?”; (4)
“What was the defendant’s knowledge of his . . . confederate’s
propensity for violence or likelihood of using lethal force?”; and
(5) “What efforts did the defendant make to minimize the risks of
violence during the felony?” (Scoggins, supra, 9 Cal.5th at p. 677,
citing Clark, supra, 63 Cal.4th at pp. 618-623.) The court made
clear, however, that “‘no one of these considerations is necessary,
13
nor is any one of them necessarily sufficient.’” (Clark, at p. 618,
quoting Banks, supra, 61 Cal.4th at p. 803.)
The record of appellant’s conviction, when reviewed in light
of the factors set forth in Banks and Clark, supports the jury’s
findings that he was a major participant in the underlying
felonies who acted with reckless indifference to human life.
Appellant was the mastermind of the plot to kidnap the victim in
his home, hired Vasquez and Hampton to commit the crime, and
provided them with weapons including a loaded firearm.
Moreover, the crime was not a “garden-variety robbery” in which
nothing pointed to an elevated risk to human life beyond those
risks inherent in such an offense. (See Clark, supra, 63 Cal.4th
at 617, fn. 74 [explaining that “a robbery in which the only factor
supporting reckless indifference to human life is the fact of the
use of a gun is what we meant by ‘a garden-variety armed
robbery’ in Banks”].) On the contrary, appellant planned and
orchestrated an ambush-style home invasion kidnapping of the
victim by two men armed with a loaded firearm and a stun gun.
As Judge Wright reasoned in denying appellant’s habeas petition,
“[appellant’s] entire kidnapping plan relied upon the victim
returning home while his accomplices were present. A conflict
with the victim was inevitable, and [appellant] arranged for his
accomplices to both be armed. [Appellant] failed to take any
steps that would have diminished the grave risk of death, but
instead, at every step, made choices that only increased the
danger of violence and killing.”
Although appellant was not physically present at the scene
of the crime, he was on the phone with Vasquez while Vasquez
and Hampton were inside Arambula’s house and thus had the
opportunity to direct their actions. Moreover, appellant provided
14
Vasquez and Hampton with a loaded firearm. The jury could
thus infer that appellant intended for his accomplices to shoot
Arambula if he resisted, and conveyed that intent to his
accomplices by providing them with the loaded firearm. (See
People v. Williams (2015) 61 Cal.4th 1244, 1281-1282 [defendant
not physically present at scene who instructed carjacking
accomplices to shoot any resisting victims was major participant
who showed reckless indifference to human life].) Appellant’s
citations to In re Taylor (2019) 34 Cal.App.5th 543, and In re
Bennett (2018) 26 Cal.App.5th 1002, are unavailing because the
petitioners in those cases did not provide their accomplice with
any weapons, much less a loaded firearm that was used to kill
the victim. (In re Taylor, at p. 557; In re Bennett, at p. 1007.)
Although appellant notes there is no evidence he had any
knowledge of his accomplices’ propensity for violence, that the
duration of his accomplices’ interaction with the victim was
relatively brief, and that his absence from the scene of the crime
rendered him unable to aid the victim after he was shot, “‘[n]o
one of [the Banks/Clark] considerations is necessary, nor is any
one of them necessarily sufficient.’” (Clark, supra, 63 Cal.4th at
p. 618, quoting Banks, supra, 61 Cal.4th at p. 803.) The totality
of the considerations supports the jury’s finding that appellant
was a major participant in the attempted kidnapping and
burglary who acted with reckless indifference to human life.
Accordingly, appellant’s petition for resentencing under section
1170.95 was properly denied.8
8Appellant also cites Enmund v. Florida (1982) 458 U.S.
782, 795 [73 L.Ed.2d 1140] for the proposition that he could not
be convicted of first degree murder as a matter of law because “it
15
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
I concur:
YEGAN, Acting P.J.
is undisputed that [he] neither committed the homicide, nor was
present when the killing took place, nor schemed nor participated
in a plot to commit murder.” Enmund, in which the defendant
was “the minor actor in an armed robbery” (Tison, supra, 481
U.S. at p. 149), does not support appellant’s position. As the
United States Supreme Court subsequently recognized, “‘major
participation in the felony committed, combined with reckless
indifference to human life, is sufficient to satisfy the Enmund
culpability requirement.” (Id. at p. 163; see also Banks, supra, 61
Cal.4th at p. 800.)
16
TANGEMAN, J., Dissenting:
I respectfully dissent. The order denying resentencing
pursuant to Penal Code section 1170.951 must be reversed
because the trial court found that appellant acted with reckless
indifference to human life based on a substantial evidence review
of a jury verdict that predated the Banks and Clark2 decisions
rather than evaluating the evidence as an independent finder of
fact.
Courts of Appeal have split on the question of reliance on
pre-Banks and Clark verdicts, which is pending review in our
Supreme Court.3 The majority here follows the view that Banks
and Clark are of no consequence in the context of section 1170.95.
I conclude that those cases that reach the opposite conclusion are
more persuasive.
Regardless of whether one concludes that our Supreme
Court modified the requirements for first degree murder
culpability based on a special circumstance finding, or merely
clarified existing law when it decided those cases, one result is
inescapable: the pathway to such culpability was narrowed.
“While it is true that the language of section 189, subdivision
(e)(3) tracks language that has always been a part of section
190.2, subdivision (d), Banks and Clark placed new limits on its
meaning.” (People v. Secrease (2021) 63 Cal.App.5th 231, 254,
review granted June 30, 2021, S268862.) Thus, by any definition,
1 Unlabeled statutory references are to the Penal Code.
2People v. Banks (2015) 61 Cal.4th 788 (Banks); People v.
Clark (2016) 63 Cal.4th 522 (Clark).
People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.]
3
2020 WL 7417057, review granted Mar. 10, 2021, S266606.
1
or under any analysis, fewer people were, and are, culpable for
first degree murder after Banks and Clark were decided than
before. The question posed here is whether appellant is one of
them.
For those reasons expressed in People v. Secrease, supra, 63
Cal.App.5th at pp. 248-254, review granted, and People v. Smith
(2020) 49 Cal.App.5th 85, 93-94, review granted July 22, 2020,
S262835,4 I am persuaded that a felony-murder special-
circumstance finding predating the Banks and Clark decisions
does not render 1170.95 petitioners ineligible for relief. Because
the jury finding precedes Banks and Clark, “the factual issues
that the jury was asked to resolve . . . are not the same factual
issues our Supreme Court has since identified as controlling.”
(Smith, at p. 93.)
In cases where the trial court summarily denied an 1170.95
petition based on a pre-Banks and Clark special circumstance
finding, the “better approach” is to remand to the trial court to
conduct a “case-specific . . . ‘analysis of the facts involved.’”
(People v. Secrease, supra, 63 Cal.App.5th at p. 259, review
granted.) Here, the trial court analyzed the facts at an
evidentiary hearing. But the analysis was flawed because the
court reviewed the jury’s finding for substantial evidence rather
4See also People v. Mejorado (2022) 73 Cal.App.5th 562,
571, review granted Mar. 23, 2022, S273159; People v. Wilson
(2021) 69 Cal.App.5th 665, review granted Dec. 22, 2021,
S271604; People v. Pineda (2021) 66 Cal.App.5th 792, review
granted Sept. 29, 2021, S270513; People v. Gonzalez (2021) 65
Cal.App.5th 420, review granted Aug. 18, 2021, S269792; People
v. Harris (2021) 60 Cal.App.5th 939, 956-958, review granted
April 28, 2021, S267802; People v. York (2020) 54 Cal.App.5th
250, 259-261, review granted Nov. 18, 2020, S264954.
2
than making an independent evaluation of whether the facts
established reckless indifference to human life.5
The trial court adopted the standard of People v. Edwards,
supra, 57 Cal.4th at p. 715, which provides that on appeal of a
conviction, the appellate court “‘review[s] the entire record in the
light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’” The court here employed the substantial evidence
standard when it “examine[d] the evidence . . . in the light most
favorable to the verdict.” Specifically, the court found “[t]he jury
could have logically concluded that the petitioner was being
informed of exactly what was taking place,” and “[i]t was
reasonable for the jury to conclude that the petitioner was aware
of what was taking place and the possible consequences of the
crime with the supplied weapons.” (Italics added.)
But “substantial evidence” is the wrong standard. Instead,
the trial court must “act[] as an independent fact finder, to
determine beyond a reasonable doubt whether defendant is guilty
of murder under a valid theory of murder.” (People v. Garrison
(2021) 73 Cal.App.5th 735, 745.) Senate Bill No. 775 (2021-2022
Reg. Sess.) “[r]eaffirms that the proper burden of proof at a
resentencing hearing under this section is proof beyond a
5 The trial court posed the issue presented as follows: “In
deciding on this petition, the court examines the evidence to
determine if, when viewed in the light most favorable to the
verdict, each essential element of the crime was proven beyond a
reasonable doubt. This same standard also applies to challenges
to the evidence where a special circumstance is found to be true.
People v. Edwards (2013) 57 Cal.4th 658, 715.”
3
reasonable doubt.” (Stats. 2021, ch. 551, § 1(c).) As amended,
section 1170.95 clarifies that at the evidentiary hearing, “the
burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is guilty of murder or
attempted murder under California law as amended by the
changes to Section 188 or 189 made effective January 1, 2019. . . .
A finding that there is substantial evidence to support a
conviction for murder . . . is insufficient to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3).)
Review of the jury’s special circumstance finding for
substantial evidence was prejudicial because the verdict preceded
Banks and Clark. The error was not harmless because the
evidence of reckless indifference to human life was not
overwhelming. (See People v. Glukhoy (2022) 77 Cal.App.5th 576,
599, 607.) Although the finding was supported by evidence that
appellant planned the crime and supplied the weapons, there was
no evidence he was aware that other participants had violent
propensities. Nor was he present during the commission of the
crimes, or in a position to aid the victim.
In my opinion, the trial court erred when it denied
appellant section 1170.95 relief based on a substantial evidence
review of the pre-Banks and Clark special circumstance finding.
I would therefore reverse and remand for a new evidentiary
hearing on his eligibility for relief.
NOT TO BE PUBLISHED.
TANGEMAN, J.
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Anthony J. Sabo, Judge
Superior Court County of Ventura
______________________________
Todd W. Howeth, Public Defender, William Quest, Senior
Deputy Public Defender, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Charles S. Lee,
Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff
and Respondent.