Filed 11/1/22 P. v. Strong CA3
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091162
Plaintiff and Respondent, (Super. Ct. No. 11F06729)
v.
OPINION ON REMAND
CHRISTOPHER STRONG,
Defendant and Appellant.
Defendant Christopher Strong appeals from the trial court’s order dismissing his
petition for resentencing brought pursuant to Penal Code section 1172.61 (formerly
section 1170.95).2 Defendant argues the trial court erred when it determined that his
convictions for first degree murder with robbery, burglary, and multiple-murder special
circumstances precluded his eligibility for relief.
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, section 1170.95 was renumbered as section 1172.6 without
substantive change. (Stats. 2022, ch. 58, § 10.) We will refer to the section by its new
numbering.
1
On December 18, 2020, we affirmed the trial court’s order. (People v. Strong
(Dec. 18, 2020, C091162) [nonpub. opn.].) On July 26, 2021, our Supreme Court
reversed and remanded the matter to this court for further proceedings. (People v. Strong
(2022) 13 Cal.5th 698, 721 (Strong).) Consistent with that decision, we will reverse the
order denying the petition and remand the matter to the trial court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s Convictions
In 2014 a jury found defendant guilty of two counts of first degree murder (§ 187)
and found true three special circumstance allegations of robbery murder (§ 190.2, subd.
(a)(17)), burglary murder (§ 190.2, subd. (a)(17)), and multiple murder (§ 190.2, sub.
(a)(3)).
In its charge to the jury at the conclusion of the parties’ presentations, the trial
court included CALCRIM No. 703 (Special Circumstances: Intent Requirement for
Accomplice After June 5, 1990—Felony Murder (Pen. Code, § 190.2(d))), which told the
jury that if it found defendant was not the actual killer, in order to prove the special
circumstances true: “[T]the People must prove either that the defendant intended to kill,
or the People must prove all of the following:
“1. The defendant’s participation in the crime began before or during the killing;
“2. The defendant was a major participant in the crime;
“AND
“3. When the defendant participated in the crime, he/she acted with reckless
indifference to human life.”3
The convictions resulted from an attempted home invasion robbery of a drug
dealer by defendant and his codefendant, Donald Ortez-Lucero. During the robbery,
3 The record does not include the jury instructions given at trial, but defendant
acknowledges the jury was instructed with CALCRIM No. 703.
2
Ortez-Lucero shot and killed a man and his infant son. 4 (People v. Ortez-Lucero et al.
(Dec. 27, 2017, C076606) [nonpub. opn.].) We affirmed the judgment on appeal. (Ibid.)
Legal Background
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on
January 1, 2019, was enacted “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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The legislation accomplished this
by amending sections 188 and 189 and adding section 1172.6 to the Penal Code.
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 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).) 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 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
4 The Attorney General requests we take judicial notice of our opinion from the direct
appeal of defendant’s case. Defendant does not object to the request. We will grant the
request and take judicial notice of the opinion. (Evid. Code, §§ 459, subd. (a) [“The
reviewing court may take judicial notice of any matter specified in Section 452”], 452,
subd. (d) [permitting a court to take judicial notice of records of “any court of this
state”].)
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the underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”
Senate Bill No. 1437 also added section 1172.6, which allows those “convicted of
felony murder or murder under a natural and probable consequences doctrine . . . [to] file
a petition with the court that sentenced the petitioner to have the petitioner’s murder . . .
conviction vacated and to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (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 . . . following a trial . . . . [¶] (3) The
petitioner could not presently be convicted of murder . . . because of changes to [s]ection
188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a).)
As relevant here, once a complete petition is filed and “[a]fter the parties have had
an opportunity to submit briefing, the court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief. If the petitioner makes a prima facie
showing that the petitioner is entitled to relief, the court shall issue an order to show
cause.” (§ 1172.6, subd. (c).) At the prima facie stage, “ ‘ “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.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952,
971.) A court may deny a petition if the record of conviction contains facts refuting the
allegations made in the petition. (Ibid.) But it “should not engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.)
“Within 60 days after the order to show cause has issued, the court shall hold a
hearing to determine whether to vacate the murder . . . conviction and to recall the
sentence and resentence the petitioner.” (§ 1172.6, subd. (d)(1).) “A finding that there is
substantial evidence to support a conviction for murder . . . is insufficient to prove,
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beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1172.6,
subd. (d)(3).)
Defendant’s Petition
In 2019, defendant, through counsel, filed a form petition for resentencing
pursuant to section 1172.6. He declared that a complaint, information, or indictment had
been filed against him that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine, he was
convicted of first degree or second degree murder under the felony-murder rule or the
natural and probable consequences doctrine, and he could not now be convicted of first or
second degree murder based on the recent changes to sections 188 and 189. Counsel
attached briefing detailing defendant’s sentence and requesting resentencing. As relevant
here, the People responded that defendant was ineligible for relief because the special
circumstance, found true, described that defendant was the actual killer, intended to kill,
or was a major participant in the underlying felony who acted with reckless indifference
to human life.
The trial court dismissed the petition in a written order. The court found in
relevant part that defendant “fail[ed] to show in any of the pleadings filed by himself or
by his counsel, that he is eligible for relief under Penal Code § [1172.6]. In Case
No. 11F06729, he was convicted of two counts of Penal Code § 187 first degree murder,
with three special circumstances -- Penal Code § 190.2(a)(17) robbery-murder; Penal
Code § 190.2(a)(17) burglary-murder; and Penal Code § 190.2(a)(3) multiple murder --
unanimously found true by a jury beyond a reasonable doubt with regard to each of the
two murders. In so finding, the jury necessarily found that defendant Strong either was
the actual killer, intended to kill, or was a major participant who acted in the robbery and
burglary with reckless indifference to human life, as the jury was specifically instructed
with CALCRIM no. 703 with regard to all three of the special circumstances. Defendant
Strong does not show otherwise. [⁋] In an opinion issued on December 27, 2017, the
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Third District Court of Appeal affirmed the judgment on appeal. Defendant Strong did
not raise any claim under People v. Banks (2015) 61 Cal.4th 788 or People v. Clark
(2016) 63 Cal.4th 522, even though those opinions had long been issued during the
pendency of defendant Strong’s appeal. The Third District issued its remittitur on the
appeal on April 12, 2018, rendering the judgment against defendant Strong final in Case
No. 11F06729. [⁋] This court’s underlying file for Case No. 11F06729 does not indicate
that there has been any subsequent post-conviction proceeding in which any or all of the
special circumstances have been vacated or defendant Strong resentenced in any manner
for any reason.”
The order concluded: “As Penal Code §§ 187 and 189 still provide for first degree
murder based on robbery-murder and burglary-murder, when the trier of fact has found
beyond a reasonable doubt that the defendant either was the actual killer, intended to kill,
or was a major participant who acted in the robbery with reckless indifference to human
life, and as a unanimous jury in Case No. 11F06729 necessarily found that to be so
beyond a reasonable doubt with regard to each of the two first degree murders, and as it
does not appear that there has been any post-conviction proceeding in which it was
ordered that defendant Strong’s special circumstance findings be vacated in Case
No. 11F06729, defendant Strong is ineligible for the relief he seeks. Under these
circumstances, it is simply beyond a reasonable doubt that defendant Strong would have
been convicted of first degree murder on both counts even if the SB 1437 amendments to
Penal Code §§ 188 and 189 had been effective at the time of his trial.” The court then
dismissed the petition, which we construe as a denial thereof.
DISCUSSION
Defendant argues the trial court erred when it determined the special circumstance
findings from his 2014 trial conclusively established that he was a “major participant who
acted in the robbery and burglary with reckless indifference to human life.” He posits
that because the definitions of “major participant” and “reckless indifference to human
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life” were clarified by our Supreme Court after the jury made its findings, in People v.
Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, the special
circumstance findings from his trial are potentially invalid. Relying on People v. Torres
(2020) 46 Cal.App.5th 1168 (Torres), defendant asserts Banks and Clark require further
litigation of his case to determine his eligibility for relief. We agree.
In Strong, supra, 13 Cal.5th 698 at page 710, our Supreme Court concluded
“[f]indings issued by a jury before Banks and Clark do not preclude a defendant from
making out a prima facie case for relief under Senate Bill 1437.”
In reaching this conclusion, our Supreme Court rejected the Attorney General’s
argument that “prior special circumstance findings always foreclose relief in section
1172.6 proceedings.” (Strong, supra, 13 Cal.5th. at p. 716.) The Supreme Court noted
Banks and Clark, both decided after the jury made its findings, “substantially clarified the
law governing findings under . . . section 190.2, subdivision (d)” by providing guidance
on “what is means to be a major participant and . . . what it means to act with reckless
indifference to human life.” (Id. at pp. 706-707.) These changes have “traditionally been
thought to warrant reexamination of an earlier-litigated issue.” (Id. at p. 717.) Because
“[f]or petitioners with pre-Banks/Clark findings, no judge or jury has ever found the
currently required degree of culpability for a first time,” such findings do not negate a
petitioner’s prima facie entitlement for relief under section 1172.6, which requires a
showing that the petitioner could not be convicted of murder under the current standard.
(Strong, at p. 718.)
Our Supreme Court’s decision in Strong held a trial court cannot “reject a petition
at the prima facie stage if it independently examines the record and determines, applying
the Banks and Clark standards, that sufficient evidence supports the earlier findings.”
(Strong, supra, 13 Cal.5th at p. 719.) This is because, in the wake of Banks and Clark,
much about the trial environment has changed. (Ibid.) These changes included “the
arguments available to counsel,” the “evidence defense counsel would have sought to
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introduce,” “trial strategies,” and the availability of “optional additional instruction on the
Banks and Clark factors . . . with the possibility that different outcomes might have
resulted.” (Id. at pp. 719-720.) “An after-the-fact court review of a pre-Banks and Clark
record does not account for all these differences.” (Id. at p. 720.) And “such a
determination would entail factfinding prohibited at the prima facie stage.” (Ibid.) In
any event, the Legislature “has made explicit in a recent amendment” that a prior court
finding of substantial evidence supporting the homicide conviction is not a basis for
denying resentencing after an evidentiary hearing. (Ibid.) “Nor, then, is it a basis for
denying a petitioner the opportunity to have an evidentiary hearing in the first place.”
(Ibid.)
However, a defendant may still challenge prior adverse special circumstance
findings in other types of proceedings such as a direct appeal or a habeas corpus petition
because “nothing in section 1172.6 says that a defendant must always do so before
seeking resentencing.” (Strong, supra, 13 Cal.5th at p. 713.)
Here, defendant’s petition claimed that he was prosecuted for and convicted of
murder under the felony murder or the natural and probable consequences doctrine, and
that he could not now be convicted of murder based on the recent changes to sections 188
and 189. Accepting these allegations as true, defendant would be entitled to relief.
The trial court denied defendant’s petition at the prima facie stage based on the
jury’s pre-Banks/Clark special circumstances findings. As explained in Strong, these
findings did not negate defendant’s entitlement to relief under section 1172.6 because
they were not subject to beyond-a-reasonable-doubt certainty under the current standards.
Nothing else in the record refutes the allegations in defendant’s petition. (See People v.
Lewis, supra, 11 Cal.5th at p. 927 [courts may not engage in factfinding at the prima facie
stage].) Defendant therefore made a prima facie showing of his entitlement to relief, and
the trial court must issue an order to show cause.
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DISPOSITION
The trial court’s order dismissing defendant’s petition under section 1172.6 is
construed as a denial thereof and is reversed. The matter is remanded to the trial court for
issuance of an order to show cause and further proceedings consistent with section
1172.6, subdivision (d).
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P.J.
/s/
Boulware Eurie, J.
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