People v. Hayes CA2/3

Filed 7/23/21 P. v. Hayes CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B302258

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A561490-01
v.

MICHAEL WAYNE HAYES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Dorothy L. Shubin, Judge. Reversed
and remanded with directions.
Nancy L. Tetreault, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Charles S. Lee,
Amanda Lopez and Chung L. Mar, Deputy Attorneys General,
for Plaintiff and Respondent.
_________________________
 Michael Wayne Hayes appeals from the superior court’s
order denying his petition under Penal Code section 1170.95.1
That statute allows certain defendants convicted of murder under
the felony-murder rule or the natural and probable consequences
doctrine—and who were not the actual killer—to petition the
court to vacate their convictions and for resentencing. The
superior court summarily denied Hayes’s petition without
appointing counsel. Quoting from the opinion on direct appeal
affirming Hayes’s conviction, the court stated Hayes was
the actual killer. The court further ruled that Hayes “was also
a major participant in the robbery of the victim and acted with
reckless indifference to human life.”
Because the record on appeal does not establish that Hayes
is indisputably ineligible for relief as a matter of law, we reverse.
We remand the matter with directions to appoint counsel for
Hayes, issue an order to show cause, and proceed in accordance
with section 1170.95, subdivision (d).
FACTS AND PROCEDURAL BACKGROUND
1. Hayes’s conviction, his two petitions for resentencing,
and the trial court’s ruling
In 1981, the People charged Hayes—along with Daniel Lee
George and Randall Eugene Ellis—with the robbery and murder
of David Ainsley Smith. The People alleged Hayes committed the
murder for financial gain, and all three defendants committed
the murder while engaged in the commission of robbery. The
People also alleged that a principal was armed with a firearm
in the commission of the crimes, and that Hayes personally used

1 References to statutes are to the Penal Code unless
otherwise noted.

2
a firearm. On the robbery count, the People alleged Hayes
personally inflicted great bodily injury on the victim.
In January 1983, a jury convicted Hayes of first degree
murder and robbery, and found the special circumstance
allegations true. The jury also found true the allegation that
a principal was armed with a firearm. However, the jury was
unable to reach a verdict on the allegations that Hayes personally
used a firearm and inflicted great bodily injury on the victim.
The court declared a mistrial on those enhancements. At the
conclusion of the penalty phase, the jury fixed the penalty on the
murder count at life in prison without the possibility of parole.
In July 1983 the trial court sentenced Hayes in accordance
with the jury’s verdict to life without parole plus one year for
the principal-armed enhancement. On the robbery count, the
court sentenced Hayes to 16 months and stayed the sentence.
On June 28, 1985, this court affirmed Hayes’s conviction.
(People v. Hayes (1985) 169 Cal.App.3d 898 (Hayes I).)
After Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4)
(Senate Bill 1437) took effect, Hayes filed on March 19, 2019
a petition for resentencing under section 1170.95. Using a
downloadable form, Hayes checked boxes 1, 2, and 3.2 Hayes
did not check box 4 (requesting counsel) or box 5 or any of its

2 Box 1 states an information “was filed against me that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine.” Box 2 states, “At trial, I was convicted of 1st or 2nd
degree murder pursuant to the felony murder rule or the natural
and probable consequences doctrine.” Box 3 states, “I could not
now be convicted of 1st or 2nd degree murder because of changes
made to Penal Code §§ 188 and 189, effective January 1, 2019.”

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subparts, including the boxes that state, “I was not the actual
killer” and “I did not, with the intent to kill, aid, abet, counsel,
command, induce, solicit, request, or assist the actual killer
in the commission of murder in the first degree.”
On May 30, 2019 the Office of the District Attorney filed
an opposition to Hayes’s petition. The prosecution took its
statement of facts from Hayes I, and attached a copy of the
opinion to its opposition. The prosecution devoted most of its
brief to the contention that section 1170.95 is unconstitutional.
The prosecution also argued Hayes had not presented a
prima facie case of eligibility for resentencing because “he was
the actual killer and was found to be a major participant who
acted with reckless indifference to human life.” The prosecution
did not contend that Hayes was a direct aider and abettor, or
that he was ineligible for relief because of the jury’s true finding
on the special circumstance of murder for financial gain.
On July 9, 2019, the trial court issued a minute order
denying Hayes’s petition without prejudice. The court noted
the jury had convicted him of first degree murder and found true
the principal-armed allegation as well as special circumstance
allegations. The court quoted from Hayes I:
“ ‘Hayes was armed with a .25 caliber
automatic that had been given to him by
[Randall Eugene] Ellis just before they went
into the store. Once the robbery commenced,
David Smith cooperated fully with appellants.
While Hayes kept the gun on David Smith,
Ellis began to empty the cash register. David
Smith was face down on the floor. Then, in an
extreme act of cowardice and cruelty, Hayes

4
 executed David Smith by shooting him three
times in the back, from a distance of less than
three feet.’ ”
Accordingly, the court concluded, Hayes had “not demonstrated
eligibility for relief.” The court stated Hayes “may file a new
petition demonstrating eligibility for relief if he can establish
that his case falls within the scope of the new law.”
The court’s July 2019 order also states the court had
received and read “petitioner’s request for counsel filed on
June 24, 2019.” The record on appeal does not contain a copy
of that request. There is no indication the trial court ever ruled
on Hayes’s request or appointed counsel to represent him.
On September 9, 2019, Hayes filed a pleading entitled
“Petition for Resentencing Pursuant to P.C. § 1170.95;
Memorandum of Points & Authorities in Support Thereof.”
Hayes wrote the “new law” was “on point with [his] case factors
and had this law been in effect when [he] went to trial, there
is no way a jury would have returned a guilty verdict as to
a charge of felony murder.”
In his statement of facts, Hayes said he went to Monrovia
“along with two acquaintances” “to acquire some marijuana
and to visit a friend.” Hayes continued,
“When the friend could not be located,
petitioner and the two acquaintances decided
to return home. During the process, someone
suggested to commit a robbery. When a
location was found to commit the crime of
robbery, the store clerk, David Smith, was
ultimately killed in the ensuing robbery.
Petitioner was charged with being the

5
 actual shooter and also with committing great
bodily injury to Mr. Smith. However, the jury
could not convict petitioner of personally killing
Mr. Smith.”
Hayes contended it “has never been proven in a court of
law that [he] was the actual killer of Mr. David Smith, for the
jury could not reach a verdict as to petitioner personally using
a firearm” or personally inflicting great bodily injury. Hayes
attached as an exhibit what appear to be transcript pages from
his sentencing. Nowhere in his pleading did Hayes explicitly
deny having been the actual killer.
On October 9, 2019, the trial court issued another minute
order denying Hayes’s petition.3 The court rejected Hayes’s
contention that he was neither the actual killer nor a major
participant who acted with reckless indifference to human life.
The court stated, “The evidence at trial established that
petitioner was the actual killer.” The court again quoted from
Hayes I that Hayes executed the victim by shooting him three
times in the back from close range as he lay face down on the
floor. As for Hayes’s assertion that the prosecutor conceded
that Hayes did not act with reckless indifference, the court stated
the prosecutor in fact “argued that petitioner far exceeded the
reckless indifference standard.” The court quoted the prosecutor:
“Further, defendant Hayes did not act with reckless indifference
to human life, but rather he took it a step further by acting
with intentional [in]difference to human life, as he purposefully
executed the victim.”

3 The record on appeal does not contain any written
opposition by the district attorney to Hayes’s second petition.

6
2. Proceedings on appeal
Hayes appealed from the October 2019 order and we
appointed counsel to represent him. On March 10, 2020,
counsel filed a brief finding no arguable issues and asking us
independently to review the record under People v. Wende
(1979) 25 Cal.3d 436 (Wende). The brief’s statement of facts
cited Hayes I as well as transcript pages of testimony in Hayes’s
superior court proceedings.4 The brief states, “Appellant forced
the store clerk, David Smith, to [lie] face down on the floor
while Ellis emptied the cash register. . . . After co-defendant
Ellis finished taking the money from the cash register, appellant
shot Mr. Smith three times in the back, killing him.”
Concurrently with the Wende brief, Hayes’s counsel filed
a request for judicial notice of the clerk’s transcript from Hayes’s
1983 trial, which—counsel said—had been “digitized” and “stored
in the superior court’s online data base [sic].” Counsel stated
the trial court that denied Hayes’s petition “was fully aware
of the facts supporting [his] murder conviction.” Those facts,
counsel continued, “are contained in this Court’s appella[te]
decision, which is part of the appellate record in this case,”
citing Hayes I. Counsel listed specific page numbers from
the transcript, stating, “The documents subject to this request
for judicial notice provide direct evidence of these facts.”
Counsel added that, while the appellate court’s opinion in
Hayes I “constitutes hearsay,” the pages from the preliminary

4 Counsel’s Wende brief states the transcripts are “from
appellant’s 1983 jury trial.” In a later pleading, counsel stated
the transcripts were of testimony given at Hayes’s preliminary
hearing.

7
hearing transcript of which appellant requested judicial notice
“recite the same facts, but the source is sworn testimony.”
On May 29, 2020, Hayes’s counsel filed a Supplement to
Appellant’s Request for Judicial Notice, attaching copies of some
of the superior court records of which Hayes requested notice.5
In her accompanying declaration, counsel—referring to Hayes I—
stated, “To the extent the statement of facts in the Court’s
decision constitutes hearsay, the attached documents provide
testimony from witnesses at the preliminary hearing identifying
appellant was the actual killer and facts about his involv[ement]
in the robbery.”
It is somewhat difficult to make out the preliminary
hearing testimony of which Hayes requests notice, as the pages
counsel attaches are single pages or excerpts of two or three
pages each. Some of the testimony appears to be that of a
Detective Spillman, who testified he interviewed a man named
Edwin Eugene Jones. Spillman testified Jones told him
“Michael Hayes had told [Jones] in complete detail how the
robbery and the murder took place.” Jones said Hayes told him

5 The record on appeal includes only a very few pages from
the clerk’s transcript in Hayes’s 1983 trial: the information,
minute orders dated January 11 and 18 reflecting the jury’s
verdicts in the guilt and penalty phases, a minute order of the
sentencing, and the abstract of judgment. As discussed below,
Hayes’s counsel later submitted the jury instructions at
our request. The rest of the clerk’s transcript—including
minute orders of opening statements, testimony, and closing
arguments—are not available to us. Nor do we have any
reporters’ transcripts of the trial proceedings except for
four pages of Hayes’s sentencing that he submitted to
the trial court with his second petition.

8
“Danny George was driving the car. It was a red, foreign car.
That the other person involved in the robbery was Randall Ellis.
That they had gone to Monrovia . . . . [W]hile in Monrovia the
three of them decided to rob a liquor store. That is the first store
they went to.”
Again, although somewhat unclear, the transcript
reflects that Spillman also interviewed Daniel George. George
told Spillman, “ ‘I didn’t know they were going to kill the guy.
I thought they were going into the store and rob the guy and
come out and we would get away.’ ” George said one of the other
two men “was a guy by the name of Michael Hayes and he only
knew the other person by the name of El.” George told Spillman
he and Hayes were brothers.
Spillman asked George
“to relate the details of the evening. He said
they had come to Monrovia first for the purpose
of purchasing some joints. That they had gone
to a street known as East Los Angeles Street
in the City of Monrovia right off of Myrtle
to see a Miss Smith. Said that she was not
at home. So, as they were driving north on
Myrtle, Michael Hayes asked if they were
agreeable to make some easy money by robbing
a store. He said he [George] and Ellis agreed
they would participate.”
Spillman testified he’d asked George “if he talked to Ellis
and Hayes when they got back in the car. He said yes he did.
He said Hayes told him that he shot the liquor store clerk. I am
asking where the gun was. He said he didn’t know. The last

9
time he saw it was that Michael Hayes had given it back to
Michael [sic] Ellis and he still had the gun as far as he knew.”
Spillman testified he also interviewed Randall Ellis after
Ellis’s arrest. Ellis told Spillman:
“on Saturday night [he’d] been with Danny
George who was driving a red . . . Toyota. I
asked him who was with him. He said Michael
Wayne Hayes was with him. I asked him
where they went. He said they had driven to
Monrovia. . . . He said they had gone to a house
in Monrovia looking for some joints . . . . He
said nobody was home there so they decided
to go back to Pasadena. [¶] As they turned on
to the north-south street Michael Hayes said
something to the effect ‘Are you guys down
for some easy money’ or ‘Are you agreeable to
making some easy money tonight?’ He said
that he was. He says something about robbing
a liquor store. He said that he would go along
with it and Danny George said he would go
along with it. [¶] He said they started looking
for a liquor store that was open. . . . [T]hey
stopped at this liquor store. . . . He and Hayes
went into the store, looked around in the store,
left there, and went to a bar next door and left
there and the place didn’t look right. [¶] So,
they left, got back in the car. They continued
toward Pasadena where they saw another
liquor store that looked like it might be a good
place to rob. Danny George was driving the car

10
 and parked on the street. [Ellis] said at that
time he gave Michael Hayes a chrome plated,
sterling .25 caliber automatic. He said he
didn’t want to take it in the store. . . . [¶] They
went ahead and went into the store. He said
that once inside the store Michael Hayes asked
the clerk for a bottle of Night Train wine. He
said the clerk came up from behind the counter
to check for it and when he did Michael pulled
a gun on him. Michael made the clerk go over
to the corner of the store and he [Ellis] went up
behind the cash register and tried to get the
cash register to open, but couldn’t do it. . . .
Michael got the clerk up from the floor, brought
him back to the cash register. The clerk opened
the cash register by working the keys on the
cash register. [¶] Michael took the clerk back
to the corner, made the clerk lie down, said
he [Ellis] was taking the bills out of the cash
drawer . . . . Michael started shooting the
clerk. [Ellis] said he ran out of the store and
Michael was close behind him. [¶] [Ellis]
jumped in the left side of the car in the rear.
Michael got in the right rear. . . . They left,
went back to Pasadena. He went home and
he took the gun with him.”
We granted Hayes’s request for judicial notice of these
transcripts on June 9, 2020.
In the meantime, on April 3, 2020, Hayes filed a
handwritten pleading entitled “Appellant’s Supplemental Brief.”

11
Hayes noted the trial court never ruled on his request for
appointment of counsel. Hayes stated he “was never found guilty
of personally using a fire arm [sic] which shows it was never
proven he was the actual killer or acted with reckless indifference
or with the intent to kill, aided, abetted, . . . or assisted the
actual killer.”
After our Supreme Court granted review in People v. Lewis
(2020) 43 Cal.App.5th 1128 (Lewis), review granted Mar. 18,
2020, S260598, People v. Verdugo (2020) 44 Cal.App.5th 320
(Verdugo), review granted Mar. 18, 2020, S260493, and People v.
Cornelius (2020) 44 Cal.App.5th 54, review granted Mar. 18,
2020, S260410, we sent the parties a letter under Government
Code section 68081 asking for briefing on three issues: whether
the trial court properly considered the record of conviction;
whether the court erred in finding Hayes (if not the actual killer)
was a major participant who acted with reckless indifference
to human life; and whether Hayes was entitled to appointed
counsel.
On August 10, 2020, Hayes’s counsel filed a supplemental
opening brief. The brief included the same statement of facts as
the Wende brief, citing again to the transcript pages and Hayes I.
However—having previously asserted the trial court “was fully
aware of the facts supporting [Hayes’s] murder conviction”—
counsel now argued the trial court was limited to the face of
the petition in considering eligibility. Counsel stated Hayes
“disagree[d]” with Lewis, Verdugo, and Cornelius. Counsel also
contended the court erred in not appointing counsel for Hayes
and by making the “factual finding” that he was a major
participant who acted with reckless indifference to human life.
Citing the “anomalous jury findings” in the case, counsel argued

12
appointed counsel could have “tr[ied] [to] show how the jury’s
inability to reach a decision on the personal gun use or infliction
of great bodily harm allegations negated a finding that he was
the actual killer.”
In his respondent’s brief, the Attorney General agreed with
Hayes that the trial court erred in finding—at this stage of the
proceedings—that he was a major participant in the robbery
who acted with reckless indifference to human life. The Attorney
General argued, however, that we should affirm the court’s order
because Hayes was the actual killer or, in any event, a direct
aider and abettor.
In reply, Hayes’s counsel reiterated the view that, in
considering whether a petitioner has made a prima facie case, the
court is limited to “the four corners of the petition.” Counsel did
not address the prosecution’s argument that, even if Hayes were
not the actual killer, he directly aided and abetted the shooter.
On March 16, 2021, we vacated the submission of the case
and sent a second Government Code letter. We asked counsel
to submit the jury instructions given at Hayes’s trial and to file
letter briefs on (1) whether Hayes’s jury was instructed on direct
aiding and abetting, and (2) whether the jury’s true finding
on the special circumstance of murder for financial gain meant
the jury found Hayes had acted with the intent to kill.
On April 13, 2021, Hayes submitted the jury instructions,
which the California Appellate Project had obtained from the
superior court. On May 10, 2021, counsel filed simultaneous
letter briefs. Hayes argues (1) the jury instruction on aiding and
abetting impermissibly omitted any requirement that the jury
find intent; and (2) the jury instruction on the financial gain
special circumstance was insufficient because of “the overlapping

13
special circumstance of robbery-murder.” The Attorney General
argues “the jury’s true finding on the financial gain special
circumstance necessarily established that the jury found beyond
a reasonable doubt that appellant—either as the actual killer
or as a direct aider and abettor of the murder—acted with the
intent to kill.”
DISCUSSION
Senate Bill 1437 “amend[ed] 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(f). See People v. Roldan (2020) 56 Cal.App.5th 997,
1021, review granted Jan. 20, 2021, S266031.) Senate Bill 1437
added section 1170.95 to the Penal Code. It establishes a
procedure by which a person convicted of murder under the
felony-murder rule or the natural and probable consequences
doctrine can seek to vacate that conviction and be resentenced
on any remaining counts if he could not have been convicted of
murder because of Senate Bill 1437’s changes to the definition
of the crime. (Stats. 2018, ch. 1015, § 4. See also Verdugo, supra,
44 Cal.App.5th at p. 323.)
The parties agree the trial court erred in finding Hayes
was a major participant in the underlying robbery who acted
with reckless indifference to human life. As the Attorney General
explains, “At the time of appellant’s 1981 offense and 1983 trial,
the applicable version of the felony-murder special circumstance
statute did not require a finding that the defendant was an aider
and abettor who was a major participant and acted with reckless

14
indifference to human life; instead, that requirement was
first added in 1990 with the passage of Proposition 115.” The
Attorney General continues, “Thus, the jury’s finding on the
felony-murder special circumstance in appellant’s case did not
necessarily establish that appellant was a major participant who
acted with reckless indifference to human life.” (See generally
People v. Duchine (2021) 60 Cal.App.5th 798, 815 [at prima facie
stage, court may not evaluate evidence, engage in factfinding, or
exercise discretion]; People v. Harris (2021) 60 Cal.App.5th 939,
958 [court erred in engaging in factfinding without issuing
order to show cause and holding evidentiary hearing rather than
evaluating record of conviction solely to determine whether it
established petitioner’s ineligibility as a matter of law], review
granted Apr. 28, 2021, S267802.)
The Attorney General contends, however, that the trial
court properly denied Hayes’s resentencing petition because he
was the actual killer and therefore ineligible for relief as a matter
of law. The court—the Attorney General says—properly relied
on the record of conviction, including the appellate opinion in
Hayes’s direct appeal, Hayes I, and the jury’s true finding on the
special circumstance allegation that Hayes intentionally killed
the victim for financial gain. The Attorney General continues,
“And in any event, even if appellant was not the actual killer,
the jury’s true finding on the financial gain special circumstance
indicates that it concluded he was at least a direct aider and
abettor.”
Hayes contends “the jury’s inability to decide if appellant
used a gun against the store clerk undermines the trial court’s
finding that he was the actual killer.” The Attorney General,
citing People v. Covarrubias (2016) 1 Cal.5th 838, 890-891,

15
responds that this fact “ ‘ “may show no more than jury lenity,
compromise, or mistake, none of which undermines the validity
of a verdict.” ’ ”
As noted, in the statement of facts in his Wende brief
as well as his supplemental opening brief, Hayes cited Hayes I.
He also has submitted—and asked us judicially to notice—
transcripts of preliminary hearing testimony that he proposed
the robbery to his companions, went into the store with Ellis,
and used the gun Ellis handed him to shoot the victim in the back
as he lay face down on the floor. At the same time, Hayes argues
the court—in considering whether the petitioner has made a
prima facie case—is “limited to the factual allegations in his
petition.”
A number of appellate courts have held a court considering
a resentencing petition properly may “examine readily available
portions of the record of conviction to determine whether a
prima facie showing has been made that the petitioner falls
within the provisions of section 1170.95.” (Verdugo, supra, 44
Cal.App.5th at p. 323; Lewis, supra, 43 Cal.App.5th at pp. 1137-
1139 [record of conviction includes court of appeal’s opinion on
direct appeal]; People v. Edwards (2020) 48 Cal.App.5th 666, 671,
674-675 (Edwards) [same], review granted July 8, 2020, S262481;
People v. Soto (2020) 51 Cal.App.5th 1043, 1055 [jury instructions
are part of record of conviction], review granted Sept. 23, 2020,
S263939; People v. Perez (2020) 54 Cal.App.5th 896, 905
[preliminary hearing transcript is part of record of conviction],
review granted Dec. 9, 2020, S265254.) The issue is currently
before our Supreme Court, which has granted review in Lewis.
One issue the high court has designated is “May superior courts
consider the record of conviction in determining whether a

16
defendant has made a prima facie showing of eligibility for relief
under Penal Code section 1170.95?” (Lewis, S260598.) Lewis
was argued in May and we are awaiting the court’s ruling.
As for the Attorney General’s contention that, in any event,
Hayes was a direct aider and abettor, we don’t know what the
prosecution argued in closing, as no reporter’s transcript of the
trial has been provided to us. The jury instructions here raise
more questions than they answer. The jury was instructed
on aiding and abetting; however, at the time CALJIC No. 3.01
required only knowledge and said nothing about intent. In
1984 the California Supreme Court held this language to be
inadequate because it did not require the aider and abettor
to have the “intent or purpose of committing, encouraging, or
facilitating the commission of the offense.” (People v. Beeman
(1984) 35 Cal.3d 547, 561.) The current version of the aiding and
abetting instruction requires the People to prove “the defendant
intended to aid and abet the perpetrator in committing the
crime.” (CALCRIM No. 401.)
Moreover, Hayes’s jury was instructed with CALJIC
No. 3.00, defining “principals,” which included natural and
probable consequences language: “One who aids and abets is
not only guilty of the particular crime that to his knowledge
his confederates are contemplating committing, but he is also
liable for the natural and reasonable or probable consequences
of any act that he knowingly aided or encouraged.”
As for the special circumstance findings, the jury was
instructed with the 1981 version of CALJIC No. 8.80, which
covered both the financial gain special circumstance and the
robbery-murder special circumstance. The instruction also told
the jury, “If defendant MICHAEL WAYNE HAYES was not

17
the actual killer, it must be proved beyond a reasonable doubt
that he intentionally aided, abetted, counseled, commanded,
induced, solicited, requested or assisted the actual killer in
the commission of the murder in the first degree before you are
permitted to find the alleged special circumstance of that first
degree murder to be true as to defendant MICHAEL WAYNE
HAYES.” The accompanying instruction (CALJIC No. 8.81.1),
however, told the jury, “To find the special circumstances,
referred to in these instructions as murder for financial gain,
is true, each of the following facts must be proved: 1. That
the murder was intentional, and 2. That it was carried out
for financial gain.”
Hayes contends this language permitted the jury to find
the financial gain circumstance true as to him as long as one
of the perpetrators (for example, Ellis) intended to murder the
victim and the murder was done for financial gain. Hayes also
notes the current version of this instruction (CALCRIM No. 720)
includes a third element when a robbery-murder special
circumstance also is charged: that the defendant “expected
the financial gain to result from the death of [the victim].”
The Bench Notes state that, when both financial gain and
robbery-murder special circumstances are charged, “there is
a risk that the jury will read the financial gain circumstance
broadly, causing it to overlap with the robbery-murder special
circumstance. (People v. Bigelow [(1984)] 37 Cal.3d [731,] 751.)”
In sum, it may well be that Hayes was the actual killer.
If so, he is ineligible for resentencing under Senate Bill 1437
as a matter of law. (People v. Tarkington (2020) 49 Cal.App.5th
892, 895-896, 899 [as actual killer, petitioner is not entitled to
resentencing], review granted Aug. 12, 2020, S263219; Edwards,

18
supra, 48 Cal.App.5th at p. 671 [same].) If Hayes was not the
actual killer, he may nonetheless be ineligible if he was a direct
aider and abettor, or a major participant in the robbery who
acted with reckless indifference to human life. But on this record
we cannot say he is indisputably ineligible as a matter of law.
Factfinding following an evidentiary hearing is necessary.
DISPOSITION
We reverse the superior court’s order denying Michael
Wayne Hayes’s petition to vacate his murder conviction and
for resentencing under section 1170.95. We remand the matter
for the court to appoint counsel for Hayes, issue an order to
show cause, and proceed in accordance with section 1170.95,
subdivision (d).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

LAVIN, J.

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