People v. Thomas CA4/1

Filed 1/4/23 P. v. Thomas CA4/1
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078289

Plaintiff and Respondent,

v. (Super. Ct. No. SCD102585)

STEVEN GARY THOMAS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County,
Joan P. Weber, Judge. Reversed and remanded.
Andrea S. Bitar, 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, Arlene A.
Sevidal and Randall D. Einhorn, Deputy Attorneys General for Plaintiff and
Respondent.
 Steven Gary Thomas, who was convicted of special circumstance felony
murder in 1996, appeals the summary denial of his petition for recall and

resentencing pursuant to Penal Code section 1172.6.1 The trial court denied
his petition at the prima facie stage, concluding the jury’s special
circumstance findings of robbery-murder and kidnapping-murder rendered
Thomas categorically ineligible for relief. To the extent the Supreme Court’s
postconviction decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark) narrowed special circumstance
liability for felony murder, the trial court followed case law that would
require Thomas to first file a petition for writ of habeas corpus before seeking
resentencing under section 1172.6.
In a prior opinion, we rejected the trial court’s conclusion that special
circumstance findings made before Banks and Clark could categorically bar a
section 1172.6 petitioner from relief. We nevertheless remanded to permit
the trial court to determine whether the evidence before the jury would
satisfy Banks and Clark standards. (People v. Thomas (Nov. 2, 2021
(D078289) [nonpub. opn.].) Review was granted (S272196), with briefing
deferred pending consideration of related issues in People v. Strong, S266606.
After issuing its decision in People v. Strong (2022) 13 Cal.5th 698 (Strong),
the Supreme Court transferred this case back with directions to vacate and
reconsider our prior opinion in light of Strong.
As before, we conclude that a pre-Banks/Clark special circumstance
finding does not categorically bar a defendant from making a prima facie case

1 Further undesignated statutory references are to the Penal Code. At
the time Thomas filed his petition, the recall procedure was codified in
section 1170.95. This statute was amended and subsequently renumbered.
(Stats. 2021, ch. 551, § 1, subd. (b); Stats. 2022, ch. 58, § 10.) Unless
otherwise noted, citations in this opinion are to the current statute, codified
at section 1172.6.
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for section 1172.6 relief. But as held in Strong, it is not enough to remand
the matter for sufficiency of the evidence review applying the Banks and
Clark standards. Instead, under Strong, the trial court must issue an order
to show cause and conduct further proceedings under section 1172.6.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Murder Conviction and Direct Appeal2

In the early hours of May 8, 1994, Karl S., Misty H., and Susan W.
returned to San Diego from a workshop in Borrego Springs. Karl pulled his
red Toyota up to Susan’s apartment in Point Loma shortly after midnight,
planning to drop her off first before taking Misty home. The three unloaded
items from the car. As the two women were upstairs in Susan’s apartment,
Karl went out to bring up the final load. Susan and Misty grew concerned
after twenty minutes passed with no sign of Karl, and they peered out the
window. They did not see Karl or his car but noticed Misty’s blue suitcase
and bags of groceries lying in the street. Around 1:00 a.m., Susan’s neighbor
Michael C. saw two African American men walking down Mentone Street.
One said to the other, “ ‘This one over here, man.’ ” Michael later saw the
same two men in a red Toyota; the car backed up over some luggage and sped
off. At 6:30 that morning, another neighbor Charles H. looked outside his
window and observed what looked like a bag of trash or a person lying on the
ground. When the object was still there an hour later, Charles called police.
Responding law enforcement found Karl’s dead body. He had been
stabbed five times in the chest with a knife. Around 7:00 a.m., a police

2 We draw the following facts from our 1997 opinion addressing
Thomas’s direct appeal from the judgment in People v. Thomas (Oct. 21,
1997, D025797) [nonpub. opn.] (Thomas I). An affidavit from the court
reporter supervisor indicates that transcripts of the original trial have been
destroyed (Gov. Code, § 69955, subd. (e)).
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community service officer found Karl’s car, abandoned with the key on the
roof. Palm prints and fingerprints lifted from the vehicle and its contents
matched Thomas.
Thomas’s girlfriend Tijwanna J. indicated that Thomas had left around
7:30 p.m. the night before with Leon McInnis and returned around 3:00 or
4:00 o’clock the next morning. A few days after the homicide, Tijwanna saw
McInnis retrieve a knife from the rain gutter of her apartment building and

throw it on the ground toward Thomas, who picked it up.3 Tijwanna
described Thomas and McInnis as inseparable, but said neither had a
“dominant leadership role.” When police interviewed Thomas and told him
his prints were recovered from Karl’s car, he said a person named Paul
Boykin instigated the carjacking and killing, and that Thomas merely went
along because Boykin had threatened him with a gun.
The San Diego County District Attorney charged McInnis and Thomas
with a series of carjacking incidents, one (Karl’s) ending in homicide. The
amended indictment alleged that in murdering Karl, Thomas “personally
used a deadly and dangerous weapon, to wit, a knife” (§ 12022, subd. (b)).
It further alleged the murder occurred while Thomas was engaged in a
robbery and in a kidnapping (§ 190.2, subd. (a)(17)).
At trial, the prosecution examined medical officer John Eisele, who
opined based on the autopsy that Karl was alive and conscious when he was
stabbed. Eisele believed Karl did not try to defend himself and was stabbed
while being restrained. Susan, Misty, Michael, and Charles provided

3 The probation report adds some other details, but it is unclear from our
record whether these additional facts were presented to the jury. According
to the report, Tijwanna stated that McInnis retrieved the knife from her rain
gutter after Thomas tried to do so unsuccessfully. The probation report
further relates that when McInnis threw the knife down, Thomas picked it up
and “put it in his pocket.”
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circumstantial evidence tending to show that Thomas and McInnis carjacked
Karl, rifled through the contents of the vehicle (the robbery), took off with
him in the car (the kidnapping), drove Karl back and at some point stabbed
him before dumping his body and speeding off in his car.
The jury also heard evidence connected to two other charged incidents
occurring earlier that week. On May 5, 1994, Thomas and McInnis held up a
college student at knifepoint, took his wallet and watch, and forced him to
drive in his red Honda to a nearby ATM to withdraw additional money.
Thomas and McInnis told the student they would let him go because he had
cooperated. When the car was recovered, a suede jacket and tape recorder
were missing. In a separate incident on May 7, a parked silver Toyota was
stolen. It was found in Point Loma near Susan’s apartment, and latent
fingerprints lifted from the car matched Thomas.
Defense counsel conceded murder liability but disputed the special
circumstance allegations. Under the defense theory, Thomas, who suffered
brain damage from a childhood car accident, was not the actual killer
(§ 190.2, subd. (b)), did not intend to kill Karl (id., subd. (c)), and was not a
major participant in the underlying felonies who acted with reckless
indifference to life (id., subd. (d)). Neuropsychologist Dean Delis and a
neurologist James Grisolia both examined Thomas and believed his mental

faculties would have made him more of a passive follower than a leader.4
A defense investigator recounted a conversation with Thomas’s girlfriend
Tijwanna, who described Thomas as being the quieter of the two and McInnis

4 The prosecution presented evidence in rebuttal from radiologists who
downplayed the severity of brain damage reflected on Thomas’s MRI scan
and a psychiatrist who opined that any brain damage would not have
impacted his behavior. Delis disputed the psychiatrist’s findings on
surrebuttal.

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as the leader. Finally, the defense examined pathologist Paul Wolf, who
testified that Karl may have been stabbed while lying on the ground, rather
than while restrained as the prosecution’s pathologist suggested.
The jury convicted Thomas of first degree murder (§ 187, subd. (a)) and
found true allegations that the murder was committed during the commission
of a robbery (§ 190.2, subd. (a)(17)(A)), and during the commission of a
kidnapping (id., subd. (a)(17)(B)). But the jury determined Thomas did not

personally use a weapon in Karl’s murder.5 As we explained in our prior
opinion, that meant they harbored at least a reasonable doubt whether
Thomas was the actual killer and based the true special circumstance
findings on Thomas aiding and abetting the killing with intent to kill, or on
Thomas being a major participant in the robbery or kidnapping and acting

with reckless indifference to human life.6 In a bifurcated penalty phase trial,
the jury returned a verdict of life without the possibility of parole.
Thomas asserted three arguments on appeal. We rejected his challenge
to the exclusion of propensity evidence that he claimed tended to paint
McInnis as the actual killer. We likewise did not accept his instructional
error claim regarding the court’s denial of a clarifying instruction on the
meaning of “major participant” in section 190.2, subdivision (d). Finally, we

5 By contrast, the jury did find that Thomas personally used a knife in
connection with the carjacking, kidnapping, and robbery of the college
student on May 5, 1994.
6 Testimony by a prosecution witness that Karl was restrained while
being stabbed could support a theory that Thomas aided and abetted the
stabbing with intent to kill (§ 190.2, subd. (c)), but the evidence on this point
was in conflict. The defense pathologist testified that Karl could have been
stabbed as he lay on the ground. In addition, the defense presented evidence
that Thomas had impaired mental capacities to suggest he did not have any
intent to kill.
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were not persuaded by his multiple punishment claim under section 654.
Accordingly, we affirmed the judgment (Thomas I, supra, D025797).

B. Enactment of Senate Bill No. 1437

Effective January 1, 2019, Senate Bill No. 1437 (Stats. 2018, ch. 1015)
overhauled sections 188 and 189 to substantially narrow felony murder
liability and murder liability under the natural and probable consequences
doctrine. As relevant here, first degree felony murder now requires proof
beyond a reasonable doubt that the defendant: (1) “was the actual killer”;
(2) “was not the actual killer but, with intent to kill aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree”; or (3) “was a major participant in
the underlying felony and acted with reckless indifference to human life.”
(§ 189, subd. (e).) These requirements now mirror the requirements for
special circumstance felony murder liability under section 190.2, subdivisions
(b) through (d).
Beyond amending the substantive requirements for murder liability,
Senate Bill No. 1437 also codified a new statute—section 1172.6—which
“established a procedure permitting certain qualifying persons who were
previously convicted of felony murder or murder under the natural and
probable consequences doctrine to petition the courts that sentenced them to
vacate their murder convictions and obtain resentencing on any remaining
counts.” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 246 (Lamoureux).)
A petitioner is eligible for resentencing relief under section 1172.6 “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 first

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degree or second degree murder following a trial or accepted a plea offer in
lieu of a trial at which the petitioner could be convicted for first degree or
second degree murder. [¶] (3) The petitioner could not be convicted of first or
second degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1172.6, subd. (a).)
On receiving a petition, the trial court must evaluate whether the
petitioner has stated a prima facie case for relief. (Strong, supra, 13 Cal.5th
at p. 708; § 1172.6, subd. (c).) “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, at p. 708.) “If instead, the defendant has
made a prima facie showing of entitlement to relief, ‘the court shall issue an
order to show cause.’ ” (Ibid.; § 1172.6, subd. (c).) Following issuance of an
order to show cause, the court holds an evidentiary hearing where the
prosecution bears the burden of proving beyond a reasonable doubt that the
defendant is ineligible for resentencing. (§ 1172.6, subd. (d)(3).) “A finding
that there is substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient [to meet this standard].”
(Ibid.) If the court decides to grant relief, it will vacate the murder
conviction, recall the sentence, and resentence the defendant to a lesser term
on any remaining counts. (Id., subd. (d)(1)−(2).)

C. Thomas’s Resentencing Petition

Representing himself, Thomas filed a section 1172.6 petition in April
2019 and requested the appointment of counsel. By checking boxes on a
preprinted form, he declared that he could no longer be convicted of first-
degree felony murder based on Senate Bill No. 1437’s amendments to section
189, subdivision (e). Specifically, Thomas alleged he was not the actual
killer, did not aid the killer with intent to kill, and was not a major

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participant in the felony who acted with reckless indifference to human life.
The People filed an initial response challenging the constitutionality of
Senate Bill No. 1437 and arguing that the jury’s special circumstance

findings precluded relief under section 1172.6.7 Attached to the prosecution’s
brief were the amended indictment, jury verdict forms, trial minutes, and our
prior opinion on direct appeal. (Thomas I, supra, D025797.)
Appointed defense counsel argued on reply that special circumstance
findings made by the jury in 1996 did not preclude relief under section
1172.6. As counsel explained, the Supreme Court’s postconviction rulings in
Banks and Clark substantially narrowed the terms “major participant” and
“reckless indifference to human life” within the special circumstance statute
(§ 190.2, subd. (d)). Thus, a felony murder special circumstance finding
predating those decisions would not necessarily qualify for felony murder
liability under section 189, subdivision (e)(3) as amended by Senate Bill
No. 1437. Acknowledging the split among courts of appeal on this issue,
defense counsel urged the court to follow cases finding no categorical bar to
relief. The People filed a supplemental brief urging the trial court to instead
follow cases that would require Thomas to petition for habeas relief under

Banks and Clark before filing a section 1172.6 petition.8
In October 2020, the trial court issued an order summarily denying
Thomas’s section 1172.6 petition. It accepted the People’s position that the
jury’s special circumstance findings indicated Thomas was a major
participant who acted with reckless indifference to human life, barring him

7 They do not reassert their constitutionality challenge on appeal. (See
People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275;
Lamoureux, supra, 42 Cal.App.5th at p. 246.)
8 The Supreme Court granted review in Strong (discussed post) to resolve
this split. (Strong, supra, 13 Cal.5th at p. 710.)
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from relief pursuant to section 1172.6 unless he first filed a petition for
habeas corpus under Banks and Clark.

DISCUSSION

Thomas appeals the summary denial of his section 1172.6 petition.
Addressing this appeal with the benefit of the Supreme Court’s guidance in
Strong, supra, 13 Cal.5th 698, we agree the court erred in concluding that his
pre-Banks and Clark special circumstance findings present a categorical bar
to resentencing relief. Because Thomas was tried before Banks and Clark
significantly clarified the standards for “major participation” and acting with
“reckless indifference to human life,” the jury’s findings do not preclude him
from seeking relief. On our record, the trial court must issue an order to
show cause and conduct further proceedings to evaluate Thomas’s
entitlement to relief.

A. The Trial Court Erred in Summarily Denying Thomas’s Petition.

California’s special circumstance statute identifies those crimes deemed
sufficiently reprehensible to warrant possible punishment by death or life
imprisonment without the possibility of parole. (Banks, supra, 61 Cal.4th at
p. 797.) One such special circumstance applies to murder that takes place in
the commission of an enumerated felony, often referred to as the felony
murder special circumstance. (§ 190.2, subd. (a)(17).) Defendants convicted
of first degree felony murder who are not the actual killer can only be guilty
of the felony murder special circumstance if they aid in the murder with
intent to kill (id., subd. (c)) or, lacking an intent to kill, aid in the felony “with
reckless indifference to human life and as a major participant.” (Id.,
subd. (d).)

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 In the last decade, the Supreme Court has substantially narrowed the
meanings of the terms “major participant” and “reckless indifference to
human life” under section 190.2, subdivision (d). The court held in Banks
that to assess whether a defendant’s participation in activities known to
carry a grave risk of death was sufficiently significant to be deemed “major,”
courts must consider the defendant’s role in planning the criminal enterprise
and supplying or using lethal weapons; defendant’s awareness of particular
dangers posed by the nature of the crime, weapons used, or past experience
or conduct of the participants; whether the defendant was at the scene of the
killing, in a position to facilitate or prevent the actual murder, and by action
or inaction played a particular role in the death; and what the defendant did
after lethal force was used. (Banks, supra, 61 Cal.4th at p. 803.) Similar
factors, both subjective and objective, inform whether a defendant acted with
“reckless indifference to human life,” including a defendant’s knowledge that
weapons would be used and/or personal use of weapons; his or her knowledge
of an accomplice’s propensity to kill; the defendant’s physical presence at the
scene and opportunity to restrain the killer or aid the victim; any efforts
taken to minimize the risk of violence in committing the felonies; and the
duration of the felony. (Clark, supra, 63 Cal.4th at pp. 618−623.)
Thomas was convicted of special circumstance felony murder in 1996,
long before the Supreme Court’s rulings in Banks and Clark narrowed
liability under section 190.2, subdivision (d). The Supreme Court granted
review in Strong, supra, 13 Cal.5th 698 to resolve a split among the courts of
appeal as to whether findings of major participation and reckless indifference
to human life predating Banks and Clark preclude a defendant from making
out a prima facie case for relief under section 1172.6. (Strong, at p. 710.)
Addressing and rejecting various counterarguments, the Strong court

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concluded that section 1172.6 did not impose any absolute bar. (Strong, at
pp. 710, 711.)
First, the court rejected the plain language argument raised in one
leading case. In requiring a defendant to show that he “could not presently
be convicted of murder or attempted murder because of” amendments made
to murder liability, section 1172.6, subdivision (a)(3) did not mean to suggest
that the claim to relief could not also rest on Banks and Clark clarifications.
(Strong, supra, 13 Cal.5th at pp. 711−713.) Second, it found no statutory
basis to require a defendant to first exhaust habeas remedies under Banks
and Clark before filing a section 1172.6 petition. (Strong, at pp. 713−714.)
Third, the court explained that issue preclusion did not bar relitigating the
major participant or reckless indifference findings given the “significant
change” to the relevant legal standards under Banks and Clark. (Strong, at
p. 717.) As the Strong court explained, “[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. Allowing reexamination of the issue
under these circumstances does not permit ‘a second bite of the apple’
because the changes in the law mean there is now ‘a different apple.’ ”
(Strong, at p. 718.)
Strong holds that a defendant convicted of special circumstance murder
based on pre-Banks/Clark findings of major participation and reckless
indifference is not categorically barred from seeking section 1172.6 relief.
(Strong, supra, 13 Cal.5th at pp. 710, 720.) The trial court erred in
concluding otherwise.

B. The Trial Court Must Issue an Order to Show Cause.

In our prior opinion, we concluded that the trial court’s error could
potentially be corrected by conducting an individualized review of Thomas’s

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record of conviction to determine whether substantial evidence supported the
special circumstance findings under the Banks and Clark frameworks.
Because our limited record did not permit us to make such a finding, we
remanded for the trial court to conduct a sufficiency-of-the-evidence review of
the trial record, applying the Banks and Clark standards.
As Strong makes clear, this solution is untenable because Banks and
Clark significantly altered the trial landscape by changing the arguments
available to counsel, the evidence counsel might have sought to introduce,
and overall trial strategies. (Strong, supra, 13 Cal.5th at p. 719.) After
Banks and Clark, trial counsel could seek clarifying jury instructions on
Banks and Clark to guide deliberations, possibly affecting outcomes. (Strong,
at pp. 719−720.) The Strong court concluded that “[a]n after-the-fact court
review of a pre-Banks and Clark record does not account for all of these
differences.” (Strong, at p. 720.) With the Legislature making clear that
substantial evidence supporting a murder conviction would not prove
ineligibility for relief at the evidentiary hearing (§ 1172.6, subd. (d)(3)), such
evidence likewise could not be a basis “for denying a petitioner the
opportunity to have an evidentiary hearing in the first place.” (Strong, at
p. 720.)
Thomas was convicted in 1996, with a jury finding he acted as a major
participant with reckless indifference to human life. Banks substantially
clarified the law regarding major participation in 2015, and Clark did the
same regarding reckless indifference to human life. “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 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.” (Strong, supra, 13

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Cal.5th at p. 720.) Accordingly, we reverse and direct the trial court to issue
an order to show cause and conduct further proceedings required under
section 1172.6 to evaluate Thomas’s claim for relief.

DISPOSITION

The order summarily denying Thomas’s resentencing position is
reversed. The matter is remanded, and the trial court is directed to issue an
order to show cause and conduct further proceedings under section 1172.6.

DATO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

IRION, J.

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