Filed 1/25/23 P. v. Nicholas 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C091668
Plaintiff and Respondent, (Super. Ct. No. 97F03179)
v. OPINION ON TRANSFER
JOSEPH ELDRIDGE NICHOLAS,
Defendant and Appellant.
Defendant Joseph Eldridge Nicholas appealed from a post judgment order denying
his petition for resentencing on his murder convictions under former section 1170.95.1 In
an unpublished opinion, we affirmed that decision, holding the felony-murder special-
1 Effective June 30, 2022, section 1170.95 was renumbered as section 1172.6 without
substantive change. (Stats. 2022, ch. 58, § 10.) When applicable, we will refer to the
section by its new numbering.
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circumstance findings against defendant rendered him ineligible for relief as a matter of
law.
On April 27, 2022, our Supreme Court granted review of the matter, and on
November 30, 2022, transferred the matter back to us with directions to vacate our
previous decision and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th
698 (Strong). On December 1, 2022, we ordered our opinion vacated.
In supplemental briefing, defendant relies on Strong to argue the jury’s true
finding on the felony-murder special-circumstance allegation rendered prior to the
opinions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th
522, does not render him ineligible for relief under section 1172.6. He seeks remand to
allow the trial court to consider whether a prima facie case can be established on the
record of conviction. The People concede remand is warranted.
Having reconsidered the issue, we accept the People’s concession; we will reverse
and remand the matter accordingly.
I. BACKGROUND
On October 2, 1998, a jury found defendant and his co-defendant guilty on two
counts of first degree murder and one count of attempted first degree robbery. (People v.
Nicholas et al. (Sept. 21, 2000, C031099) [nonpub. opn.].) The jury also found true
special-circumstance allegations that the murders were committed during the commission
of the attempted robbery and multiple murders were committed, as well as allegations
that defendant used a deadly weapon to commit the offenses. (Ibid.) The trial court
sentenced defendant to consecutive life terms without the possibility of parole, plus 18
years. On appeal, we struck a five-year enhancement and affirmed the judgment as
modified. (Ibid.)
On March 25, 2019, defendant filed a petition for resentencing of his murder
convictions pursuant to former section 1170.95. The court appointed counsel, the People
responded to the petition, and defendant filed a reply. After briefing, the court denied the
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petition finding defendant was ineligible for relief under former section 1170.95 based on
the jury’s felony-murder special-circumstance findings and the evidence supporting the
findings of premeditation and deliberation. Thus, no order to show cause issued.
II. DISCUSSION
A. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, revised
the felony-murder rule in California “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 bill amended the definition of malice in
section 188, revised the definition of the degrees of murder to address felony-murder
liability in section 189, and added what is now section 1172.6, “which provides a
procedure by which those convicted of murder can seek retroactive relief if the changes
in the law would affect their previously sustained convictions.” (People v. Gutierrez-
Salazar (2019) 38 Cal.App.5th 411, 417, citing Stats. 2018, ch. 1015, §§ 2-4.)
Section 1172.6, subdivision (a) states that a person convicted of felony murder or
murder under a natural and probable consequences theory may file a petition with the
court for resentencing “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, murder 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, or attempted 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.
[¶] (3) The petitioner could not presently be convicted of murder or attempted murder
because of changes to Section 188 or 189 made effective January 1, 2019.”
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Section 1172.6, subdivision (b) requires the petitioner to submit a declaration that
avers eligibility for relief under the statute (based on the requirements of subdivision (a))
and states the superior court case number, the year of conviction, and whether the
petitioner requests appointment of counsel. (§ 1172.6, subd. (b).) Section 1172.6,
subdivision (c), which dictates how the court must handle the petition, reads: “Within 60
days after service of a petition that meets the requirements set forth in subdivision (b), the
prosecutor shall file and serve a response. The petitioner may file and serve a reply
within 30 days after the prosecutor’s response is served. These deadlines shall be
extended for good cause. 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. If the petitioner makes a prima facie showing that the petitioner is entitled
to relief, the court shall issue an order to show cause. If the court declines to make an
order to show cause, it shall provide a statement fully setting forth its reasons for doing
so.”
Section 1172.6, subdivision (d) provides that a hearing to determine whether to
vacate the murder conviction, recall the sentence, and resentence the petitioner as needed
should be held within 60 days after the order to show cause; and the prosecution bears the
burden of proving beyond a reasonable doubt that the petitioner is ineligible for
resentencing.
B. Prima Facie Showing
On transfer from the Supreme Court, defendant maintains the trial court erred in
relying on the jury’s felony-murder special-circumstance finding to determine he was
precluded from relief under section 1172.6. He seeks remand for the trial court to
consider whether he has made a prima facie showing under section 1172.6, subdivision
(c). Following the Supreme Court’s recent opinion in Strong, supra, 13 Cal.5th 698, the
People concede that remand is warranted; we accept their concession.
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As relevant here, section 190.2, subdivision (d) provides that for the purposes of
the special-circumstance allegations based on the enumerated felonies in paragraph (17)
of subdivision (a), which include robbery, an aider and abettor must, at a minimum, have
been a “major participant” and have acted “with reckless indifference to human life.” (§
190.2, subd. (d); see People v. Banks, supra, 61 Cal.4th at p. 798.)
In Strong, the Supreme Court held “[f]indings issued by a jury before Banks and
Clark do not preclude a [petitioner] from making out a prima facie case for relief under
Senate Bill [No.] 1437. This is true even if the trial evidence would have been sufficient
to support the findings under Banks and Clark.” (Strong, supra, 13 Cal.5th at p. 710.)
Further, our Supreme Court concluded, “Banks and Clark both substantially clarified the
law governing findings under . . . section 190.2, subdivision (d): Banks elucidated what it
means to be a major participant and, to a lesser extent, what it means to act with reckless
indifference to human life, while Clark further refined the reckless indifference inquiry.”
(Id. at pp. 706-707.) The court concluded these two rulings reflected a significant change
in the law and justified the denial of giving preclusive effect to jury findings made before
this change in law. (Id. at pp. 716-718.)
Under the law that existed at the time of petitioner’s conviction, the jury’s finding
relative to the robbery-murder special circumstance carried with it a conclusion, at a
minimum, that defendant was a major participant in the crime who acted with reckless
disregard for human life. That finding, however, was made in 2011, well before the
Supreme Court’s opinions in Banks and Clark. Following the opinion in Strong, this pre-
Clark/Banks jury finding does not preclude petitioner from establishing a prima facie
case for relief under section 1172.6. (Strong, supra, 13 Cal.5th at p. 710.)
The People thus concede defendant is not barred from relief as a matter of law.
We accept their concession.
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III. DISPOSITION
The order denying the petition is reversed. The case is remanded to the trial court
to allow the trial court to consider whether defendant has made a prima facie case for
relief under section 1172.6.
/S/
RENNER, J.
We concur:
/S/
DUARTE, Acting P. J.
/S/
KRAUSE, J.
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