People v. Ramnanan CA4/2

Filed 10/7/22 P. v. Ramnanan CA4/2
Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E077536

v. (Super. Ct. No. FBA4939)

ANDRE RAMNANAN, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson,

Judge. Reversed and remanded with directions.

Kenneth J. Vandevelde, under appointment by the Court of Appeal, for Defendant

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Steve Oetting

and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.

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 I.

INTRODUCTION

Defendant and appellant Andre Ramanan appeals from the trial court’s denial of
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his petition for resentencing pursuant to Penal Code former section 1170.95. He

contends the court erred in denying his petition finding him ineligible for relief as a

matter of law based on the jury’s special circumstances finding. While defendant’s
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appeal was pending, our Supreme Court held that a pre-Banks/Clark felony-murder

special circumstance finding does not render a former section 1170.95 petitioner

ineligible for relief as a matter of law. (People v. Strong (2022) 13 Cal.5th 698 (Strong).)

Based on Strong, we must vacate the trial court’s order and remand the matter for further

proceedings.

II.
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FACTUAL AND PROCEDURAL BACKGROUND

Lee and Peggy Williams (collectively “Williams”) lived in Yermo. They owned

1
All future references are to the Penal Code unless otherwise stated.

2
That section has since been renumbered as section 1172.6. (Stats. 2022, ch. 58,
§ 10.) However, because that change was nonsubstantive, we will cite to former section
1170.95 for ease of reference.

3
People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63
Cal.4th 522 (Clark).

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The factual background is taken verbatim from our nonpublished opinion in
defendant’s direct appeal. (See People v. Ramnanan (Jun. 29, 1998, E018243)
(Ramnanan I).)

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two horses, a horse trailer, a white dually (double-wheeled) Ford pickup, a motor home,

and a blue 1981 Pontiac LeMans. On the evening of December 3, 1992, four people --

Ramnanan, Tammy [Gamache], Tammy’s husband, Richard Gamache (Richard), and

another person, a minor boy -- gained entrance to the Williamses’ house on the pretense

of needing to use the phone. After seizing the Williamses, the intruders ransacked the

house for money, guns, and other property. They then departed taking the victims with

them.

Richard and Ramnanan drove the Williamses in the motor home. Tammy drove

the pickup. At one point, defendants stopped and forced the Williamses to sign bills of

sale transferring the truck, the horse trailer, the mobile home, and the Pontiac to them.

After driving a further distance, Ramnanan and Richard forced the Williamses to walk

out in the desert and lie face down. Richard said, “Have a nice day,” then shot Lee in the

head, killing him. He also shot Peggy twice. Peggy survived and was able to seek help.

Richard and Tammy were arrested on the morning of December 3 when they

returned in the pickup to retrieve the motor home, which they had left parked at a truck

stop. After driving and then abandoning the Pontiac, Ramnanan was arrested on

December 4. Various other kinds of physical evidence and testimony linked the three

defendants to the crimes committed against the Williamses. Richard admitted he shot

them. The horses and the trailer were found at Tammy’s friend’s home, where Tammy

and Richard had taken them after the shootings. Tammy also led the police to the

location of Lee’s body. (Ramnanan I, supra, E018243.)

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 On January 18, 1996, a jury convicted defendant of one count of first degree

murder (§187, subd. (a)), one count of attempted murder (§§ 664/187, subd, (a)), two

counts of kidnapping for robbery (§ 209, subd. (b)), and three counts of first degree

residential robbery (§ 211). In addition, the jury found true special circumstance

allegations that the murder occurred during the commission of a residential robbery, first

degree burglary, and kidnapping for the purpose of robbery (§ 190.2, subd. (a)(17)). The

jury also found true the allegations that defendant personally used a firearm in the

commission of the murder, attempted murder, and kidnapping for robbery (§ 12022.5,

subd. (a)(1)). Defendant was sentenced to life without the possibility of parole for the

murder; life with the possibility of parole for the attempted murder and each of the

kidnapping for robbery counts; and stayed determinate terms for the residential robbery

offenses.

On June 29, 1998, we affirmed defendant’s convictions and sentence. (See

Ramnanan I, supra, E018243.)

On February 21, 2019, defendant filed a petition for resentencing under former

section 1170.95, requesting that his murder conviction be vacated based on changes to

sections 188 and 189 as amended by Senate Bill No. 1437.

Following briefing and argument by the parties, the trial court denied the petition.

The court found that, based on the jury instructions given and the jury’s true findings on

the special circumstances allegations, defendant had not established a prima facie case for

relief as a matter of law under former section 1170.95.

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 Defendant subsequently appealed. In a nonpublished opinion filed July 13, 2022,

we affirmed the denial of resentencing under former section 1170.95. (People v.

Ramnanan (Jul. 13, 2022, E077536) [nonpub. opn.].)

On August 9, 2022, defendant filed a petition for rehearing, based on the our

Supreme Court’s decision in Strong, supra, 13 Cal.5th 698. On August 11, 2022, we

vacated the July 13, 2022 opinion and granted the petition. We deemed the petition a

supplemental opening brief and allowed for the filing of a supplemental respondent’s

brief. The People have filed their supplemental respondent’s brief, submitting that, in

light of Strong, the judgment should be reversed and the matter remanded to the superior

court for further proceedings.

III.

DISCUSSION

Defendant contends the jury’s special circumstances finding did not render him

ineligible for relief as a matter of law because his conviction predates our Supreme

Court’s decisions in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522,

which clarified the meaning of “major participant” and “reckless indifference to human

life.” He thus believes he has established a prima facie case for relief under section

1170.95 entitling him to an evidentiary hearing.

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 A. Legal Background

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “‘to amend

the felony murder rule and the natural and probable consequences doctrine, as it relates to

murder, to ensure that murder liability is not imposed on a person who is not the actual

killer, did not act with the intent to kill, or was not a major participant in the underlying

felony who acted with reckless indifference to human life.’” (People v. Gentile (2020) 10

Cal.5th 830, 846-847 (Gentile); see Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature

accomplished this by amending sections 188 and 189 and adding former section 1170.95

to the Penal Code. Senate Bill No. 775 expanded the scope of those changes to

encompass, among other things, murder convictions “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.” (Former § 1170.95, subd. (a), as

amended by Stats. 2021, ch. 551, § 2.)

Section 188, which defines malice, now provides in part: “Except as stated in

subdivision (e) of [s]ection 189, in order to be convicted of murder, a principal in a crime

shall act with malice aforethought. Malice shall not be imputed to a person based solely

on his or her participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)

Section 189, subdivision (e) now limits the circumstances under which a person may be

convicted of felony murder: “A participant in the perpetration or attempted perpetration

of a felony listed in subdivision (a) [defining first degree murder] in which a death occurs

is liable for murder only if one of the following is proven: [¶] (1) The person was the

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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 [s]ection 190.2.” (Stats. 2018, ch. 1015, § 3.)

Senate Bill No. 1437 also “added [former] section 1170.95 to provide a procedure

for those convicted of felony murder or murder under the natural and probable

consequences doctrine to seek relief.” (Gentile, supra, 10 Cal.5th at p. 843; see People v.

Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) Pursuant to former section 1170.95, an

offender must file a petition in the sentencing court declaring that: “(1) A complaint,

information, or indictment was filed against the petitioner that allowed the prosecution to

proceed under a theory of felony murder or 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 [s]ection 188 or 189 made effective January 1, 2019.” (Former

§ 1170.95, subds. (a)(1)-(3); see also former § 1170.95 subd. (b)(1)(A).)

On January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) became effective.

(Stats. 2021, ch. 551.) In Senate Bill No. 775, the Legislature amended the language of

former section 1170.95, expanding the scope of the petitioning process and clarifying

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some of the procedural requirements. (Stats. 2021, ch. 551, § 2.) Former section 1170.95

now provides that, upon receiving a petition, if the petitioner has requested counsel, the

court must appoint counsel to represent the petitioner. (Former § 1170.95, subd. (b)(3).)

“After the parties have had an opportunity to submit briefings, the court shall hold a

hearing to determine whether the petitioner has made a prima facie case for relief.”

(Former § 1170.95, subd. (c).) If the petitioner has made such a showing that the

petitioner is entitled to relief, the court “shall issue an order to show cause.” (Former

§ 1170.95, subd. (c).) “If the court declines to make an order to show cause, it shall

provide a statement fully setting forth its reasons for doing so.” (Former § 1170.95, subd.

(c).)

The prima facie inquiry under section former 1170.95 subdivision (c) is “limited.”

(Lewis, supra, 11 Cal.5th at p. 971.) The court “‘“takes petitioner’s factual allegations as

true and makes a preliminary assessment regarding whether the petitioner would be

entitled to relief if his or her factual allegations were proved.”’” (Ibid.) Although the

court may rely on the record of conviction (including a prior appellate court opinion) in

determining whether defendant has made a prima facie showing, the court “should not

engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’”

(Id. at p. 972; see id. at p. 971.)

Within 60 days after the order to show cause has issued, the trial court must then

hold a hearing “to determine whether to vacate the murder, attempted murder, or

manslaughter conviction and to recall the sentence and resentence the petitioner on any

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remaining counts in the same manner as if the petitioner had not previously been

sentenced, provided that the new sentence, if any, is not greater than the initial sentence.”

(Former § 1170.95, subd. (d)(1).) If a hearing is held, “‘[t]he prosecutor and the

petitioner may rely on the record of conviction or offer new or additional evidence to

meet their respective burdens.’” (Former § 1170.95, subd. (d)(3); see Gentile, supra, 10

Cal.5th at p. 853.) “At the hearing stage, ‘the burden of proof shall be on the prosecution

to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.’

([Former] § 1170.95, subd. (d)(3).)” (Lewis, supra, 11 Cal.5th at p. 960.)

B. Standard of Review

In this case, the trial court denied defendant’s petition at the prima facie stage

under former section 1170.95, subdivision (c). A denial at this stage is appropriate only

if the record of conviction demonstrates that the petitioner is ineligible for relief as a

matter of law. (Lewis, supra, 11 Cal.5th at p. 960.) This is a purely legal conclusion,

which we review de novo. (See Id. at p. 961.) The interpretation and application of a

statute to factual findings is a question of law subject to de novo review as well. (Ibid.;

People v. Johnson (2016) 1 Cal.App.5th 953, 960.)

C. Analysis

Defendant contends that the trial court erred in determining he did not fall within

the provisions of former section 1170.95 given the jury’s robbery-murder special

circumstance finding.

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 Our Supreme Court recently made clear that when, as here, a defendant’s case

“was tried before both Banks and Clark, the special circumstance findings do not

preclude him from making out a prima facie case for resentencing under section 1172.6

[(former section 1170.95)].” (Strong, supra, 13 Cal.5th at p. 721.) “This is true even if

the trial evidence would have been sufficient to support the findings under Banks and

Clark.” (Id. at p. 710.) The Strong court noted that the Banks and Clark cases “both

substantially clarified the law governing findings under . . . section 190.2, subdivision

(d).” (Id. at p. 706.) The court explained that a pre-Banks and Clark special

circumstance finding does not negate the showing that the petitioner could not presently

be convicted of murder or attempted murder because of changes to section 188 or 189

“because the finding alone does not establish that the petitioner is in a class of defendants

who would still be viewed as liable for murder under the current understanding of the

major participant and reckless indifference requirements.” (Id. at pp. 717-718.)

Noting the differences between pre- and post-Banks and Clark special

circumstance requirements, the Supreme Court observed the changes may “have altered

what evidence defense counsel would have sought to introduce . . . might have

fundamentally altered trial strategies,” and may have affected what jury instructions were

requested or given. (Strong, supra, 13 Cal.5th at p. 719.) “An after-the-fact court review

of a pre-Banks and Clark record does not account for all these differences. . . . And as

the Legislature has made explicit in a recent amendment to the predecessor to section

1172.6 [(former section 1170.95)], a court determination that substantial evidence

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supports a homicide conviction is not a basis for denying resentencing after an

evidentiary hearing. [Citation.] Nor, then, is it a basis for denying a petitioner the

opportunity to have an evidentiary hearing in the first place.” (Id. at p. 720.) Thus,

neither “the jury’s pre-Banks and Clark findings nor a court’s later sufficiency of the

evidence review amounts to the determination section 1172.6 [(former section 1170.95)]

requires, and neither set of findings supplies a basis to reject an otherwise adequate prima

facie showing and deny issuance of an order to show cause.” (Ibid.)

Here, the jury made its special circumstances finding approximately 20 years

before Banks and Clark. Pursuant to Strong, that finding does not preclude defendant

from stating a prima facie case for relief. (Strong, supra, 13 Cal.5th at p. 721.) And,

regardless of the trial court’s evaluation of the trial evidence, Strong makes clear that a

defendant’s prima facie case is not barred even if the trial evidence was sufficient to

support the special circumstance finding after Banks and Clark. (Id. at p. 710; Lewis,

supra, 11 Cal.5th at p. 972 [in reviewing the record at the prima facie stage, “a trial court

should not engage in ‘factfinding involving the weighing of evidence or the exercise of

discretion’”].)

Defendant’s resentencing petition was facially sufficient and alleged the essential

facts necessary for relief under former section 1170.95. Nothing in the record

demonstrates defendant is ineligible for relief as a matter of law, so we must remand the

matter for the trial court to issue an order to show cause and, to the extent necessary,

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conduct an evidentiary hearing. (Former § 1170.95, subd. (d).) We express no opinion

on the ultimate resolution of the petition.

IV.

DISPOSITION

The trial court’s order denying defendant’s former section 1170.95 petition is

reversed. On remand, the court is directed to issue an order to show cause and, to the

extent necessary, hold an evidentiary hearing on the petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:

RAMIREZ
P. J.

McKINSTER
J.

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