Filed 2/14/23 P. v. Faulalo 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C094142
Plaintiff and Respondent, (Super. Ct. No. 04F02695)
v. OPINION ON TRANSFER
LANGIMA’A FAULALO,
Defendant and Appellant.
Defendant Langima’a Faulalo challenges the trial court’s denial of his petition for
resentencing under Penal Code section1 1172.62 based on changes made to the felony-
1 Unspecified statutory section citations that follow are to the Penal Code.
2 Effective June 30, 2022, former section 1170.95 was recodified without substantive
change to section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed his petition under
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murder rule by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437).
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In an unpublished opinion, we affirmed the court’s order denying defendant’s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. Faulalo (Apr. 25, 2022, C094142) [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
We have granted defendant’s motion for judicial notice of our prior decision in his
direct appeal. (Evid. Code, § 452, subd. (d).)
former section 1170.95, but we will refer to the current section number throughout this
opinion.
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On March 10, 2004, defendant participated in a home invasion robbery with three
others. (People v. Faulalo (Nov. 17, 2008, C055080) [nonpub. opn.] (Faulalo).)3
During the robbery, one of the assailants shot and killed Danny Johnson. (Ibid.) The
jury convicted defendant of first degree murder and robbery along with finding true
several sentence enhancement allegations, including the special circumstance that the
murder was committed in the commission of a robbery under section 190.2, subdivision
(a)(17).
Defendant was sentenced to life without the possibility of parole plus 10 years for
a firearm enhancement. Defendant appealed his convictions and we modified a fee
imposed but otherwise affirmed the judgment. (Faulalo, supra, C055080.)
On April 26, 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 the killing with the intent to kill, and that he was not a major
participant in the felony or that he acted with reckless indifference to human life. The
prosecutor filed a response and motion to dismiss and defense counsel filed an
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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opposition. Defendant attached the jury instructions and signed verdict forms to his brief,
including the special circumstance jury instruction.
On April 19, 2021, the trial court filed a written order denying the petition without
prejudice, allowing him to refile the petition if he in the future obtains relief through a
habeas corpus petition. The court explained that defendant is ineligible because, though
he was found guilty on a felony murder theory, the jury found true the special
circumstance, so it necessarily found defendant was the actual killer, had the intent to
kill, or was a major participant who acted with reckless indifference to human life. It also
concluded defendant could not challenge this finding under the recent California
Supreme Court cases Banks and Clark through a section 1172.6 petition, but instead must
first seek relief through a habeas corpus petition.
DISCUSSION
Defendant originally argued that the trial court erred in concluding the special
circumstance finding rendered defendant ineligible as a matter of law because that
finding was made before Banks and Clark. He argued that, because the California
Supreme Court altered the analysis for determining when a defendant is a major
participant who acted with reckless indifference to human life, he is not ineligible as a
matter of law. Further, he contends he can seek reversal of the special circumstance
finding under Banks and Clark through a section 1172.6 petition. 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
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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
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.)
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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
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.
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.
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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:
MAURO, J.
KRAUSE, J.
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