People v. Owens CA4/2

Filed 10/21/22 P. v. Owens CA4/2
Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E072711

v. (Super.Ct.No. INF039223)

DAMIEN OWENS, OPINION ON TRANSFER

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Reversed and remanded with directions.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief

Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorney

General, A. Natasha Cortina, Meredith S. White, Lynne G. McGinnis and Alan L.

Amann, Deputy Attorneys General, for Plaintiff and Respondent.

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 Defendant and appellant, Damien Owens, filed a petition for resentencing pursuant

to former Penal Code section 1170.95,1 which the court denied. On appeal, defendant

contended the court committed structural error in denying his petition without allowing

him the opportunity to file a reply brief. By opinion filed November 2, 2020, we

affirmed.

On September 28, 2022, the California Supreme Court transferred the matter back

to us with directions to vacate our decision and reconsider the cause in light of People v.

Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952

(Lewis). On September 30, 2022, we ordered our decision vacated and set a briefing

schedule.

Defendant argues that (1) the court prejudicially erred by summarily denying his

petition without affording him an opportunity to file a reply to the People’s response; and

(2) that under Strong, the jury’s true finding on the felony-murder special circumstance

allegations rendered prior to the decisions in People v. Banks (2015) 61 Cal.4th 788

(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) do not preclude him from

making a prima facie case for relief.

1 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.)
amended and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022,
ch. 58, § 10.) All further statutory references are to the Penal Code unless otherwise
indicated.
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 The People concede that due to the decision in Strong, the court’s error in denying

defendant the opportunity to file a reply brief can no longer be deemed harmless. Thus,

the People agree the matter must be remanded for further proceedings. We reverse and

remand the matter for reconsideration.

I. PROCEDURAL BACKGROUND 2

On September 11, 2002, “a jury convicted [defendant] of (1) first degree murder

with robbery and burglary felony-murder special circumstance[s], (2) first degree robbery

and (3) first degree burglary. The jury found a principal was armed in the commission of

the offenses.” (Owens, supra, E033148, fn. omitted.)

The court sentenced defendant to one year plus life without the possibility of

parole. (Owens, supra, E033148.) Defendant appealed; this court affirmed. (Ibid.)

On February 19, 2019, defendant filed a petition for resentencing pursuant to

former section 1170.95. The court appointed counsel to represent defendant.

On April 17, 2019, the People filed a response to defendant’s petition in which

they argued that former section 1170.95 was unconstitutional; they additionally argued

defendant was ineligible for relief under former section 1170.95 because the jury’s

finding on the felony-murder special circumstances necessarily reflected its finding that

2 On our own motion, we take judicial notice of the nonpublished opinion in
People v. Owens et al. (Apr. 12, 2005, E033148) [nonpub. opn.] (Owens), from
defendant’s appeal from the judgment. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of
Court, rule 8.1115(b)(1).) We exclude a recitation of the facts here as irrelevant to the
issues raised on appeal.
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defendant was a major participant in the murder, who acted with reckless indifference to

human life.

On April 26, 2019, the court held a hearing on the petition. Defense counsel

declared a conflict. Counsel for the “Conflict Defense Lawyers” indicated he was

prepared to accept appointment and requested the matter be stayed until August 16.

When asked for comment, the People indicated “there was a robbery/murder special

circumstance. CALCRIMs 702 and 703 [sic] were given. The jury had to find major

participant and reckless indifference.”

The court indicated, “Well, there were two specials, but all right. These look like

CALJICs.” The court confirmed, “It was [CALJIC] 8.80.1 [that] was given. And it

required—and it says: If you find the defendant was not the actual killer of the human

being, or if you’re unable to decide, you must be satisfied beyond a reasonable doubt that

the defendant with the [specific] intent to kill aided, abetted, counseled, commanded,

induced, solicited, requested or assisted any act, or in the commission of murder in the

first degree or reckless indifference to human life, and as a major participant, aided,

abetted and so on and so forth. This matter is summarily denied.” Defense counsel

objected for the record.

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 II. DISCUSSION

Defendant argues that (1) the court prejudicially erred by summarily denying his

petition without affording him an opportunity to file a reply to the response;3 and (2) that

under Strong, the jury’s true finding on the felony-murder special-circumstance

allegations rendered prior to the decisions in Banks and Clark do not preclude him from

making a prima facie case for relief. We agree.

“Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of the

felony-murder rule to effectuate the Legislature’s declared intent ‘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.’” (Strong, supra, 13 Cal.5th at pp. 707-708.) “Senate Bill

1437 also created a special procedural mechanism for those convicted under the former

law to seek retroactive relief under the law as amended. [Citations.] Under newly

enacted section 1172.6, the process begins with the filing of a petition containing a

declaration that all requirements for eligibility are met [citations], including that ‘[t]he

petitioner could not presently be convicted of murder or attempted murder because of

3 To the extent the People suggested defendant forfeited the issue since his “claim
of prejudice is speculative, because counsel did not raise this issue at the hearing nor did
he indicate he needed to brief it,” we disagree. Counsel requested the court continue the
matter. The court thereafter ruled on the petition without providing defense counsel
further opportunity to respond or request the opportunity to brief issues. (People v.
Sperling (2017) 12 Cal.App.5th 1094, 1101 [parties not required to raise issue below if
the court failed to give them any meaningful opportunity to object].) Instead, the court
itself introduced an objection for the record on behalf of defense counsel.
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changes to . . . Section 188 or 189 made effective January 1, 2019,’ the effective date of

Senate Bill 1437 [citation].” (Id. at p. 708, fn. omitted.)

“When the trial court receives a petition containing the necessary declaration and

other required information, the court must evaluate the petition ‘to determine whether the

petitioner has made a prima facie case for relief.’ [Citations.] If the petition and record

in the case establish conclusively that the defendant is ineligible for relief, the trial court

may dismiss the petition.” (Strong, supra, 13 Cal.5th at p. 708.) “As a general matter, a

trial court should afford both parties the opportunity to brief the question of a petitioner’s

eligibility for relief and may extend the briefing deadlines ‘for good cause’ as necessary

to ensure that such an opportunity is meaningful.” (Lewis, supra, 11 Cal.5th at p. 966,

fn. 4.)

“While the trial court may look at the record of conviction after the appointment of

counsel to determine whether a petitioner has made a prima facie case for . . . relief, the

prima facie inquiry . . . is limited. Like the analogous prima facie inquiry in habeas

corpus proceedings, ‘“the court takes petitioner’s factual allegations as true and makes a

preliminary assessment regarding whether the petitioner would be entitled to relief if his

or her factual allegations were proved. If so, the court must issue an order to show

cause.”’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on

credibility grounds without first conducting an evidentiary hearing.’” (Lewis, supra,

11 Cal.5th at p. 971.) “In reviewing any part of the record of conviction at this

preliminary juncture, a trial court should not engage in ‘factfinding involving the

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weighing of evidence or the exercise of discretion.’” (Id. at p. 972.) “[T]he ‘prima facie

bar was intentionally and correctly set very low.’” (Ibid.)

Where a defendant’s “case was tried before both Banks and Clark, . . . special

circumstance findings do not preclude him from making out a prima facie case for

resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at p. 721.) A court “err[s]

in concluding otherwise.” (Ibid.)

If, instead, a defendant has made a prima facie showing of entitlement to relief,

“‘the court shall issue an order to show cause.’” (Strong, supra, 13 Cal.5th at p. 708.)

Once the court determines that a defendant has made a prima facie showing, “the court

must [then] hold an evidentiary hearing at which the prosecution bears the burden of

proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted

murder’ under state law as amended by Senate Bill 1437. [Citation.] ‘A finding that

there is substantial evidence to support a conviction for murder, attempted murder, or

manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is

ineligible for resentencing.’ [Citation.] ‘If the prosecution fails to sustain its burden of

proof, the prior conviction, and any allegations and enhancements attached to the

conviction, shall be vacated and the petitioner shall be resentenced on the remaining

charges.’” (Id. at p. 709.) “Senate Bill 1437 relief is unavailable if the defendant was

either the actual killer, acted with the intent to kill, or ‘was a major participant in the

underlying felony and acted with reckless indifference to human life . . . .’” (Id. at

p. 710.)

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 Here, the jury rendered the special murder circumstance findings long before both

Banks and Clark were decided. Thus, with respect to those findings, “no judge or jury

has ever found the currently required degree of culpability . . . .” (Strong, supra,

13 Cal.5th at p. 718, italics added.) Contrary to our initial determination, the special

murder circumstance findings rendered by the jury against defendant do not, alone,

render him per se ineligible for relief. Therefore, the court below erred in denying

defendant’s petition on that basis. Thus, the matter must be remanded for a new prima

facie hearing prior to which defendant should be given the opportunity, if he so elects, to

file a reply to any response filed by the People.

III. DISPOSITION

The order dismissing defendant’s petition is reversed. The matter is remanded

with directions to hold a new prima facie hearing. We express no opinion on whether

defendant is entitled to relief following the hearing.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:

FIELDS
J.

MENETREZ
J.

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