Filed 1/3/23 P. v. Ellis CA3
Opinion following transfer 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C092613
Plaintiff and Respondent, (Super. Ct. No. 05F03831)
v. OPINION ON TRANSFER
GERALD ELLIS,
Defendant and Appellant.
Defendant Gerald Ellis challenges the trial court’s denial of his petition for
resentencing under Penal Code section1 1172.62 based on changes made to the felony-
murder rule by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437).
1 Unspecified statutory section citations that follow are to the Penal Code.
2 Effective June 20, 2022, former section 1170.95 was recodified without substantive
change to section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed his petition under
former section 1170.95, but we will refer to the current section number throughout this
opinion.
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Defendant argued the trial court erred in relying on the jury’s special circumstance
finding to deny his petition.
In an unpublished opinion, we affirmed the court’s order denying defendant’s
resentencing petition, holding that the jury’s true special circumstance findings, which
had not been set aside through habeas, precluded relief under section 1172.6 as a matter
of law. (People v. Ellis (Dec. 13, 2021, C092613) [nonpub. opn.].)
The California Supreme Court subsequently granted review and transferred the
matter back to us with directions to vacate our opinion and reconsider the cause in light
of People v. Strong (2022) 13 Cal.5th 698 (Strong). By separate order, we vacated our
decision.
In supplemental briefing after transfer, the parties agree that under Strong the
jury’s true findings on the robbery-murder and burglary-murder special circumstance
allegations, which were made before our Supreme Court’s decisions in People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark)
clarified what it means to be a major participant who acts with reckless indifference to
human life, do not render defendant ineligible for relief as a matter of law. Having
reconsidered the matter, we agree and will reverse and remand for further proceedings
under section 1172.6.
FACTS AND HISTORY OF THE PROCEEDINGS
Defendant participated in a home invasion robbery with three others. (People v.
Ellis (Mar. 5, 2008, C054797) [nonpub. opn.] (Ellis).)3 During the robbery, one of the
assailants shot and killed Donald Willis. (Ellis, at p. 3.) The jury convicted defendant of
3 On our own motion, we take judicial notice of this prior decision. (Evid. Code, § 452,
subd. (d).) We provide this summary of facts from the prior opinion in defendant’s direct
appeal solely for context and do not rely on these facts for our analysis or disposition
here. (See § 1172.6, subd. (d)(3).)
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first degree robbery in concert and first degree murder, and found the murder occurred
during the commission of a robbery (Pen. Code, § 190.2, subd. (d)). He was sentenced to
life without the possibility of parole. (Ellis, at p. 1.)
Defendant appealed, arguing there was insufficient evidence to support the
robbery-murder special circumstance. (Ellis, supra, C054797 at p. 1.) We affirmed,
finding there was substantial evidence defendant both acted with reckless disregard for
human life and was a major participant in the robbery. (Id. at pp. 11, 12.)
On February 13, 2019, defendant filed a form petition for resentencing pursuant to
section 1172.6. On the form, he checked various boxes stating that a complaint was filed
against him that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine, that at trial he was
convicted of first or second degree murder pursuant to the felony-murder rule or the
natural and probable consequences doctrine, and that 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. Defendant also checked the boxes stating that he was not the actual
killer, did not aid or abet with the intent to kill, and was not a major participant in the
felony or acted with reckless indifference to human life. The prosecutor filed a response
and motion to dismiss and defense counsel filed an opposition.
On July 23, 2020, the trial court filed a written order denying the petition. The
trial court provided two reasons, first that: “In finding the robbery-murder special
circumstance true, the jury necessarily found that [defendant] either was the actual killer,
acted with intent to kill, or was a major participant in the robbery who acted with reckless
indifference to human life. And, on appeal, the Third District Court of Appeal held that
the evidence was sufficient to show that [defendant] had been a major participant in the
robbery who acted with reckless indifference to human life . . . .” Second, the trial court
found defendant could not challenge the validity of the special circumstance finding
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under the recent California Supreme Court cases Banks and Clark through a section
1172.6 petition. But even if defendant could, the trial court cited the facts of defendant’s
case from our prior opinion and found that the special circumstance would still be valid
even after Banks and Clark.
DISCUSSION
Defendant originally argued the trial court was required to issue an order to show
cause because his petition established a prima facie showing of eligibility under section
1172.6. He argued the trial court erred in summarily denying defendant’s petition on the
special circumstance finding because, in Banks and Clark decided after his trial, our
Supreme Court modified the analysis for “major participant” and “reckless indifference
to human life.” In supplemental briefing, the parties now agree, as do we, that the trial
court erred in denying defendant’s petition.
Senate Bill 1437 amended 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).) Senate Bill 1437 achieves these goals
by amending section 188 to require that a principal act with express or implied malice
(§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state
that a person can be liable for felony murder only if: (1) the “person was the actual
killer”; (2) the person, with an intent to kill, was an aider or abettor in the commission of
murder in the first degree; or (3) the “person was a major participant in the underlying
felony and acted with reckless indifference to human life.” (§ 189, subd. (e), as amended
by Stats. 2018, ch. 1015, § 3.)
As pertinent here, Senate Bill 1437 also added what is now section 1172.6, which
permits a person convicted of felony murder or murder under a natural and probable
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consequences theory to petition the sentencing court to vacate the murder conviction and
resentence the person on any remaining counts if, among other things, the petitioner
could not be convicted of first or second degree murder due to the change in the law.
(§ 1172.6, subd. (a).) Upon submission of a facially sufficient petition that requests
counsel, the court shall appoint counsel and provide the parties an opportunity to submit
briefs. (§ 1172.6, subds. (b)(3), (c).) Following briefing, the court must hold a hearing to
determine whether the petitioner has made a prima facie case for relief. (§ 1172.6, subd.
(c).) If a sufficient prima facie showing is made, the court must issue an order to show
cause. (§1172.6, subds. (c), (d).)
The prima facie inquiry under section 1172.6, subdivision (c) is “limited.”
(People v. Lewis (2021) 11 Cal.5th 952, 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.)
Since defendant’s convictions, the Supreme Court has refined the analysis for who
qualifies as a major participant acting with reckless indifference to human life in Banks
and Clark. (People v. Torres (2020) 46 Cal.App.5th 1168, 1179, abrogated on other
grounds in People v. Lewis, supra, 11 Cal.5th at p. 963.) After we rejected defendant’s
claims in our previous opinion, our Supreme Court decided Strong, which concluded:
“Findings 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. This is true even if the
trial evidence would have been sufficient to support the findings under Banks and Clark.”
(People v. Strong, supra, 13 Cal.5th at p. 710.) Here, the trial court concluded that the
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jury’s pre-Banks and Clark findings, which defendant had never set aside through habeas,
precluded defendant from making a prima facie showing. The trial court’s conclusion
does not survive Strong.4
Defendant’s resentencing petition was facially sufficient and alleged the essential
facts necessary for relief under section 1172.6 if proven. (§ 1172.6, subds. (a)-(c);
People v. Lewis, supra, 11 Cal.5th at pp. 970-972.) Nothing in the record demonstrates
defendant is ineligible for relief as a matter of law, so we must reverse and remand the
matter for the trial court to issue an order to show cause, and, to the extent necessary,
conduct an evidentiary hearing. (§ 1172.6, subd. (d).) We express no opinion on the
ultimate resolution of the petition.
4 The trial court relied, in part, on our conclusion in defendant’s direct appeal that there
was substantial evidence supporting the jury’s special circumstance finding. As that
opinion was filed before Banks, Clark, and Strong, its findings are no longer binding on
this point. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491-492 [law of the case
doctrine is not applied “where the controlling rules of law have been altered or clarified
by a decision intervening between the first and second appellate determinations”].)
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DISPOSITION
The trial court’s order denying defendant’s section 1172.6 petition is reversed. On
remand, the trial court is directed to issue an order to show cause, and, to the extent
necessary, the court shall hold an evidentiary hearing on the petition.
HULL, Acting P. J.
We concur:
,
RENNER, J.
KRAUSE, J
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