Filed 9/22/21 P. v. Mendoza CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047430
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 159891)
v.
ARTURO MENDOZA,
Defendant and Appellant.
I. INTRODUCTION
In 1993, a jury convicted defendant Arturo Mendoza of first degree murder
(Pen. Code, § 187),1 attempted robbery (§§ 664/211, 212.5, subd. (a)), and first degree
burglary (§§ 459, 460, subd. (a)), finding true the felony-murder special circumstance
allegations that the murder was committed during an attempted robbery and a burglary
(§ 190.2, subd. (a)(17)(i), (vii))2 and the allegation that defendant personally used a
firearm during the commission of the offenses (§ 12022.5, subd. (a)). It was undisputed
that defendant was not the actual killer; defendant was prosecuted as an aider and abettor
to the murder. In finding the felony-murder special circumstance allegations true, the
jury determined that defendant was a major participant in the underlying felonies who
1
All further statutory references are to the Penal Code.
2
Currently section 190.2, subdivision (a)(17)(A), (G).
acted with reckless indifference to human life. The superior court sentenced defendant to
life without the possibility of parole consecutive to four years for the firearm
enhancement. This court affirmed the judgment in 1995.
In 2019, defendant filed a petition for resentencing pursuant to section 1170.95,
which was enacted by the Legislature through its passage of Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (Senate Bill 1437). (Stats. 2018, ch. 1015, § 4.) Section 1170.95 allows
individuals convicted of felony murder or murder under the natural and probable
consequences doctrine to petition the superior court to vacate the conviction under recent
changes to the law that limited the scope of the felony murder rule to individuals who
were major participants in the underlying felony who acted with reckless indifference to
human life and eliminated the natural and probable consequences theory of liability for
murder. After briefing and argument by the parties, the superior court denied the
petition, determining that the jury’s special circumstance findings barred entitlement to
relief. The court also found that Senate Bill 1437 was unconstitutional because it
unlawfully amended Propositions 7 and 115.
Defendant contends that the felony-murder special circumstance findings do not
render him ineligible for section 1170.95 relief because the findings were made before
the California Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788
(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which construed the felony-
murder special circumstance statute. Defendant also argues that Senate Bill 1437 is
constitutional. The Attorney General contends that the trial court properly denied the
petition based on the special circumstance findings. The Attorney General argues that
defendant must first challenge the special circumstance findings under Banks and Clark
in a petition for writ of habeas corpus and, if successful, petition for resentencing under
section 1170.95. The Attorney General concedes that Senate Bill 1437 is constitutional.
The Courts of Appeal, including this one, have held that Senate Bill 1437 is
constitutional and we concur with those decisions. (See, e.g., People v. Lamoureux
2
(2019) 42 Cal.App.5th 241; People v. Superior Court (Gooden) (2019) 42 Cal.App.5th
270; People v. Cruz (2020) 46 Cal.App.5th 740; People v. Bucio (2020) 48 Cal.App.5th
300; People v. Johns (2020) 50 Cal.App.5th 46; People v. Alaybue (2020) 51 Cal.App.5th
207.) Because the Attorney General concedes the constitutionality of Senate Bill 1437,
we do not address the issue further here.
The courts are divided, however, on whether a pre-Banks and Clark felony-murder
special circumstance finding prevents a defendant from demonstrating prima facie
entitlement to section 1170.95 relief (see People v. Pineda (2021) 66 Cal.App.5th 792,
799-801 (Pineda) [detailing the split]), and the issue is currently pending before the
California Supreme Court (see People v. Strong (Dec. 18, 2020, C091162) __
Cal.App.5th __ [2020 Cal.App.Unpub.LEXIS 8505], review granted Mar. 10, 2021,
S266606). In Pineda, we followed the First District’s determination in People v.
Secrease (2021) 63 Cal.App.5th 231, 255 (Secrease) that when a defendant convicted of
murder with a felony-murder special circumstance finding “ ‘has never been afforded a
Banks and Clark sufficiency-of-the-evidence review—by any court, at the trial or
appellate level—section 1170.95 courts have an obligation to undertake such an analysis
at the prima facie entitlement-to-relief stage of a resentencing proceeding under
subdivision (c) of the statute.’ ” (Pineda, supra, at p. 801.)
For reasons that we will explain, we determine that defendant has never had a
judicial determination under Clark of whether sufficient evidence supports the jury’s
felony-murder special circumstance findings that defendant acted with reckless
indifference to human life. Accordingly, we reverse the superior court’s order denying
defendant’s section 1170.95 petition and remand the matter for that determination.3
3
Defendant’s counsel has filed a petition for writ of habeas corpus that this court
ordered to be considered with this appeal. We have disposed of the habeas petition by
separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
3
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background4
On January 3, 1992, defendant, codefendant Jesus Antonio Mandujano, and a man
named “Arellano” forced their way into Sacramento Benitez’s home, where he lived with
several family members, while one or more individuals waited outside. All three
intruders had handguns. Benitez ran into his bedroom, with Mandujano and perhaps
Arellano in pursuit, and attempted to close the door. Mandujano fired one shot through
the bedroom door, killing Benitez. The three intruders fled.
Defendant and three others had planned to commit a robbery at Benitez’s home.
Defendant and his cohorts had gone to the house on an earlier occasion to determine
whether it was the right home and how many people were there. Defendant had asked for
directions and a glass of water.
When they returned to the home, defendant actively helped Mandujano push the
front door open while Benitez’s sister resisted. Defendant then stood inside the door,
inferably using his pistol in an attempt to neutralize Benitez’s sister, while Mandujano
pursued Benitez down the hallway.
Benitez’s sister testified that after defendant entered the home, “he stayed over to
his side by the doorway.” At some point she saw that defendant was pointing “something
white” at her ribcage, “but [she] never knew what it was.” Sister explained that “ever
since that other man was there down there with my brother I had all my attention in that
direction and I wasn’t paying attention to this other.” On cross-examination, sister stated
that she “couldn’t say if it was a gun or a knife” that Mendoza held in his hand.
The facts are based on this court’s opinion affirming the judgment in case
4
No. H012250. The opinion was an exhibit to the district attorney’s opposition to
defendant’s section 1170.95 petition.
4
Defendant testified that a man named “Jicamo” had given him a gun, and that he
had the gun with him when he entered the home the second time.5
B. Procedural History
1. Trial Proceedings
Defendant was charged with first degree murder (§ 187) with felony-murder
special circumstance allegations that the murder was committed during an attempted
robbery and a burglary (§ 190.2, subd. (a)(17)(i), (vii)). Defendant was also charged with
attempted robbery (§§ 664/211, 212.5, subd. (a)) and first degree burglary (§§ 459, 460,
subd. (a)), and it was alleged that defendant personally used a firearm during the
commission of the offenses (§ 12022.5, subd. (a)).
Defendant was tried in 1993. As relevant here, the jury was instructed on aider
and abettor liability with CALJIC No. 8.27 for first degree felony murder and with
CALJIC No. 3.02 on the natural and probable consequences doctrine. Regarding the
felony-murder special circumstance allegations, the jury was instructed, “If you find that
a defendant was not the actual killer of a human being, you cannot find the special
circumstance to be true as to that defendant unless you are satisfied beyond a reasonable
doubt that such defendant with reckless indifference to human life and as a major
participant, aided, abetted, or assisted in the commission of the crime of attempted
robbery or burglary which resulted in the death of a human being.” At defendant’s
request, the jury was further instructed, “For you to find that defendant . . . acted with
reckless indifference to human life you must be satisfied beyond a reasonable doubt that
he actually subjectively appreciated the life threatening risk created by his conduct and
acted with conscious disregard for human life.”
5
There is no additional information regarding defendant’s testimony in this
court’s opinion in case No. H012250.
5
The jury found defendant guilty as charged. The superior court sentenced
defendant to life without the possibility of parole consecutive to four years for the firearm
enhancement, imposing and staying sentences on the remaining counts.
2. Direct Appeal
This court affirmed the judgment in 1995. Among other issues, this court
determined that the trial court had a sua sponte duty to instruct the jury that “ ‘reckless
indifference to human life,’ ” as used in the felony-murder special circumstance statute,
“ ‘requires that a defendant who is an aider and abettor, and not the actual killer,
knowingly engage in criminal activities known to carry a grave risk of death,’ ” but that
the court’s instruction that “the aider and abettor had to personally appreciate that his
actions constituted a threat to human life but nevertheless acted with conscious disregard
for human life” did not prejudice defendant based on the evidence in the record. (Italics
added.) This court also determined that defendant’s sentence did not constitute cruel
and/or unusual punishment because the record showed that defendant was “ ‘an active
and major participant in the robbery’ ” and that “[i]t is both rational and fair to infer that
[defendant] understood the significance of his role as he played it.”
3. Habeas Proceedings in the Superior Court and this Court
In March 2016, defendant filed a petition for writ of habeas corpus in the superior
court contending that there was insufficient evidence to support the felony-murder special
circumstance findings under Banks. The superior court denied the petition,
distinguishing Banks and determining that “Banks has no effect on [defendant’s] case.”
Implicitly concluding that there was sufficient evidence in the record that defendant was
a major participant in the underlying felonies, the court found that defendant “scoped out
the house, assisted in pushing in the front door with force to gain entry, and held another
person at gunpoint inside the house when the victim was shot and killed down the
hallway.” The court also stated that this court had “concluded [in the direct appeal] that
[defendant] was an active and major participant in the robbery.”
6
In addition, the superior court distinguished this case from Banks “as to the
showing of ‘reckless indifference.’ ” The court found that defendant “was at the scene
of the robbery, used force in opening the door while the victims were attempting to bar
entry, entered the home armed with a weapon, and used the weapon against one of the
victims. [Defendant] unlike the [getaway] driver in Banks clearly knew deadly force was
being used.” The court also stated that this court determined in the direct appeal that the
jury could find that defendant “had the requisite subjective awareness and understood the
risk involved.”
In May 2016, defendant filed a petition for writ of habeas corpus in this court
contending that there was insufficient evidence to support the special circumstance
findings under Banks. This court summarily denied the petition on June 3, 2016.
In April 2018, defendant filed a petition for writ of habeas corpus in the superior
court contending that under the California Supreme Court’s decision in People v. Chiu
(2014) 59 Cal.4th 155 (Chiu), his first degree murder conviction under the natural and
probable consequences doctrine was invalid. The superior court issued an order to show
cause “[b]ecause [although] the special circumstances verdicts demonstrate that the jury
made the findings which would bring this case within the felony-murder rule,” rendering
any Chiu error harmless, such a determination “presupposes the validity of those special
circumstances findings” under Banks and Clark. Approximately one month after issuing
the order to show cause, the superior court denied the petition, stating that it had been
unaware of the court’s earlier determination of defendant’s petition under Banks, which it
found precluded its review of the same issue, and determining that any Chiu error was
harmless.
In July 2018, defendant filed a petition for writ of habeas corpus in this court,
raising the same claim under Chiu. This court summarily denied the petition.
7
4. Section 1170.95 Proceedings
In 2019, defendant filed a section 1170.95 petition in the superior court. The
petition consisted of a three-page preprinted form, two pages of which were a declaration
defendant signed under penalty of perjury. Among other boxes, defendant checked boxes
on the form declaring that “[a] complaint, information, or indictment 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”; “[a]t trial, [he] was convicted of
1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable
consequences doctrine”; and he “could not now be convicted of 1st or 2nd degree murder
because of changes made to . . . § § 188 and 189, effective January 1, 2019.” In addition,
defendant checked boxes declaring that he “was not the actual killer”; he “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”; and he “was not a major
participant in the felony or . . . did not act with reckless indifference to human life during
the course of the crime or felony.” Defendant requested counsel.
The superior court appointed counsel to represent defendant. The district
attorney filed two oppositions to the petition, consisting of a constitutional challenge to
section 1170.95 and an opposition to the petition’s merits. On the petition’s merits, the
district attorney conceded that defendant was not Benitez’s actual killer, but argued that
defendant was ineligible for relief because the jury determined that defendant was a
major participant who acted with reckless indifference to human life when it found the
special circumstance allegations true, a finding that was not disturbed on appeal or in
defendant’s habeas cases. The district attorney also asserted that defendant’s “bare bones
declaration,” “with no independent objective corroboration,” was insufficient to establish
a prima facie claim for relief; defendant was estopped from challenging the special
circumstance findings; and defendant could be convicted of murder under current law.
8
Defendant replied to the district attorney’s oppositions. On the petition’s merits,
defendant contended that he had met the prima facie requirements of section 1170.95 by
filing a declaration stating eligibility for relief under subdivision (a)(3); he was not
estopped from obtaining relief because the issues raised in his petition were not the same
as those previously litigated; and he could not be convicted of murder under current law.
After another round of briefing by both parties, defendant filed a supplemental
petition for resentencing. Defendant stated that he was convicted of first degree murder
under the theory that he aided and abetted an attempted robbery and burglary and that the
“only instructions for the murder charge as it related to [defendant] was aiding and
abetting under the natural and probable consequence rule.” Defendant asserted that the
evidence did not show that he “committed any murder . . . , intended any murder . . . , or
acted with reckless indifference to human life . . . , as would be required for aiding and
abetting murder and for a conviction” under current law. Defendant stated that the jury
did not find when determining his guilt of murder, as opposed to the special circumstance
allegations, that he was a major participant in the attempted robbery or burglary and acted
with reckless indifference to human life. Defendant asked the superior court to issue an
order to show cause.
The superior court denied the petition, determining that it was not possible for
defendant to show entitlement to relief because a jury found the felony-murder special
circumstance allegations true beyond a reasonable doubt, the judgment was affirmed on
appeal, and a detailed Banks analysis was performed in the habeas case. The court also
found that Senate Bill 1437 was unconstitutional because it unlawfully amended
Propositions 7 and 115.
III. DISCUSSION
A. Senate Bill 1437’s Statutory Framework and the Standard of Review
The Legislature enacted Senate Bill 1437 to “amend the felony murder rule and
the natural and probable consequences doctrine . . . to ensure that murder liability is not
9
imposed on a person who is not the actual killer, did not act with the intent to kill, or was
not a major participant of the underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill amended sections 188 and
189, which pertain to the definition of malice and the degrees of murder. (Stats. 2018,
ch. 1015, §§ 2-3.)
The Legislature amended section 188 by adding subdivision (a)(3), which
provides: “Except as stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a crime.” (Stats. 2018,
ch. 1015, § 2; § 188, subd. (a)(3).) And section 189, subdivision (e), now limits liability
for murder to a person who was either the actual killer or, though not the actual killer,
acted “with intent to kill” and “aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer” in the commission of first degree murder, or was
“a major participant in the underlying felony and acted with reckless indifference to
human life, as described in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3;
§ 189, subd. (e).)
In addition to the amendments to sections 188 and 189, Senate Bill 1437 added
section 1170.95, which allows “[a] person convicted of felony murder or murder under
the natural and probable consequences theory” to petition the sentencing court to vacate
the murder conviction and be resentenced on any remaining counts. (Stats. 2018,
ch. 1015, § 4; § 1170.95, subd. (a).) All of the following conditions must apply to
warrant section 1170.95 relief: “(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 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[; and] [¶] (3) The petitioner could not be convicted of
10
first or second degree murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a).)
A section 1170.95 petition is required to include: “(A) A declaration by the
petitioner that he or she is eligible for relief under this section, based on all the
requirements of subdivision (a). [¶] (B) The superior court case number and year of
the petitioner’s conviction. [And] [¶] (C) [w]hether the petitioner requests the
appointment of counsel.” (§ 1170.95, subd. (b)(1).) “[U]pon the filing of a facially
sufficient petition,” the statute “requir[es] that counsel be appointed.” (People v. Lewis
(2021) 11 Cal.5th 952, 970 (Lewis).) “[T]hen the court proceeds to subdivision (c) to
assess whether the petitioner has made ‘a prima facie showing’ for relief. (§ 1170.95,
subd. (c).)” (Id. at p. 960 .)
“[T]he prima facie inquiry under subdivision (c) is limited. Like the analogous
prima facie inquiry in habeas corpus proceedings, ‘ “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. If so, the court
must issue an order to show cause.” ’ [Citations.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without first conducting an
evidentiary hearing.’ [Citations.] ‘However, if the record, including the court’s own
documents, “contain[s] facts refuting the allegations made in the petition,” then “the court
is justified in making a credibility determination adverse to the petitioner.” ’ [Citations.]”
(Lewis, supra, 11 Cal.5th at p. 971.)
If the court finds that a prima facie showing has been made, it issues an order to
show cause and holds a hearing “to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any remaining counts.”
(§ 1170.95, subd. (d)(1).) The burden of proof at the hearing is on the prosecution “to
prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Id.,
subd. (d)(3).) Both parties may rely on the record of conviction or present new or
11
additional evidence at the hearing. (Ibid.) Alternatively, “[t]he parties may waive a
resentencing hearing and stipulate that the petitioner is eligible to have his or her murder
conviction vacated and for resentencing. If there was a prior finding by a court or jury
that the petitioner did not act with reckless indifference to human life or was not a major
participant in the felony, the court shall vacate the petitioner’s conviction and resentence
the petitioner.” (Id., subd. (d)(2).)
We determine questions of statutory interpretation de novo. (See People v. Prunty
(2015) 62 Cal.4th 59, 71.) Whether the superior court properly denied defendant’s
section 1170.95 petition for failure to state a prima facie case for relief involves multiple
standards of review. We review the court’s factual findings for substantial evidence and
the court’s application of those facts to section 1170.95 de novo. (See People v. Drayton
(2020) 47 Cal.App.5th 965, 981, overruled on another ground in Lewis, supra, 11 Cal.5th
at pp. 962-970.)
B. The Felony-Murder Special Circumstance Statute and Banks and Clark
An individual convicted of first degree murder may be sentenced to death or life
without the possibility of parole if a special circumstance enumerated under section 190.2
is found true. “One such special circumstance is the felony-murder special circumstance.
The requirements of the felony-murder special circumstance mirror the post-Senate
Bill 1437 requirements of felony murder. [Citations.] That is, the felony-murder special
circumstance applies where (1) the murder occurred during the commission of a specified
felony and (2) the defendant was the actual killer; with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted in the commission of
the murder; or with reckless indifference to human life and as a major participant, aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted in the
commission of the felony. (§ 190.2, subds. (a)(17), (c), (d).)” (Pineda, supra, 66
Cal.App.5th at p. 798.)
12
In Banks and Clark, the California Supreme Court “clarified the meaning of the
special circumstances statute.” (In re Scoggins (2020) 9 Cal.5th 667, 671.) In Banks, the
court considered “under what circumstances an accomplice who lacks the intent to kill
may qualify as a major participant” under section 190.2. (Banks, supra, 61 Cal.4th at
p. 794.) The court held that “a defendant’s personal involvement must be substantial,
greater than the actions of an ordinary aider and abettor to an ordinary felony murder,”
and identified five factors relevant to that determination. (Id. at pp. 802, 803.) The
factors are: (1) “What role did the defendant have in planning the criminal enterprise
that led to one or more deaths?”; (2) “What role did the defendant have in supplying or
using lethal weapons?”; (3) “What awareness did the defendant have of particular
dangers posed by the nature of the crime, weapons used, or past experience or conduct
of the other participants?”; (4) “Was the defendant present at the scene of the killing, in
a position to facilitate or prevent the actual murder, and did his or her own actions or
inaction play a particular role in the death?”; and (5) “What did the defendant do after
lethal force was used?” (Id. at p. 803, fn. omitted.) “No one of these considerations is
necessary, nor is any one of them necessarily sufficient. All may be weighed in
determining the ultimate question, whether the defendant’s participation ‘in criminal
activities known to carry a grave risk of death’ [citation] was sufficiently significant to
be considered ‘major’ [citation].” (Ibid.) The court also stated that section 190.2’s
requirement that an accomplice act with reckless indifference to human life mandates that
“ ‘the defendant be “subjectively aware that his or her participation in the felony involved
a grave risk of death,” ’ ” and that “[a]wareness of no more than the foreseeable risk of
death inherent in any armed crime is insufficient.” (Banks, supra, at pp. 807, 808.)
In Clark, the California Supreme Court held that reckless indifference to human
life has “both subjective and objective elements.” (Clark, supra, 63 Cal.4th at p. 617.)
“The subjective element is the defendant’s conscious disregard of [the grave] risks [of
death] known to him or her.” (Ibid.) As to the objective element, “ ‘[t]he risk [of death]
13
must be of such a nature and degree that, considering the nature and purpose of the
actor’s conduct and the circumstances known to him [or her], its disregard involves a
gross deviation from the standard of conduct that a law-abiding person would observe
in the actor’s situation.’ ” (Ibid.) The court identified five factors relevant to whether
the defendant acted with reckless indifference to human life under the totality of the
circumstances. (Id. at p. 618.) Those factors are: (1) the defendant’s knowledge of
weapons, the number of weapons, and whether the defendant used a weapon; (2) the
defendant’s physical presence at the crime and opportunities to restrain the crime and/or
aid the victim; (3) the duration of the underlying felony; (4) the defendant’s knowledge
of his or her cohort’s likelihood of killing; and (5) the defendant’s efforts to minimize
the risks of violence during the underlying felony. (Id. at pp. 618-622.) “Just as [the
court] said of the factors concerning major participant status in Banks, ‘[n]o one of
these considerations is necessary, nor is any one of them necessarily sufficient.’ ” (Id.
at p. 618.)
“A defendant with a pre-Banks and Clark felony-murder special-circumstance
finding whose conviction became final prior to Banks and Clark may file a petition for
habeas corpus seeking to have the finding invalidated. Such a defendant ‘is entitled to
habeas corpus relief “ ‘if there is no material dispute as to the facts relating to his
conviction’ ” ’ and ‘the special circumstances statute as construed in Banks and Clark’
did not prohibit his conduct.” (Pineda, supra, 66 Cal.App.5th at p. 799.)
C. Defendant Is Entitled to a Judicial Determination of Whether There is
Sufficient Evidence of Reckless Indifference under Clark
As we stated above, we recently held in Pineda that “ ‘where a petitioner facing a
felony-murder special-circumstance finding has never been afforded a Banks and Clark
sufficiency-of-the-evidence review—by any court, at the trial or appellate level—
section 1170.95 courts have an obligation to undertake such an analysis at the prima facie
entitlement-to-relief stage of a resentencing proceeding under subdivision (c) of the . . .
14
statute.’ ” (Pineda, supra, 66 Cal.App.5th at p. 801.) In reaching our holding in Pineda,
we followed the First District’s reasoning in Secrease and adopted its approach. (Pineda,
supra, at pp. 801-802.) Pineda and Secrease are dispositive here.
Defendant received a Banks sufficiency-of-the-evidence review in the superior
court when he filed his 2016 habeas petition contending that the evidence was
insufficient to support the special circumstance findings under Banks. The superior court
determined that this case was distinguishable from Banks and implicitly concluded that
there was sufficient evidence in the record to support the jury’s finding that defendant
was a major participant in the underlying felonies based on the evidence that he “scoped
out the house, assisted in pushing in the front door with force to gain entry, and held
another person at gunpoint inside the house when the victim was shot and killed down
the hallway.”
However, defendant has not been afforded a review under Clark regarding the
sufficiency of the evidence supporting the jury’s finding that he acted with reckless
indifference to human life. Although the superior court in the 2016 habeas proceedings
considered whether there was sufficient evidence that defendant acted with reckless
indifference, it did so without the benefit of Clark, which was decided two months after
the superior denied defendant’s petition. Thus, the court did not analyze whether there
was sufficient evidence to support the objective element of reckless indifference, namely,
whether “ ‘[t]he risk [of death] [was] of such a nature and degree that, considering the
nature and purpose of [defendant’s] conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct that a law-abiding
person would observe in [defendant’s] situation.’ ” (Clark, supra, 63 Cal.4th at p. 617.)
Nor did the superior court have the benefit of Clark’s discussion regarding the five
factors that may be considered in the sufficiency-of-the-evidence determination of
reckless indifference. (See id. at pp. 618-622.)
15
This court, too, has never made a post-Clark determination of whether there is
sufficient evidence in the record that defendant acted with reckless indifference to human
life. This court determined on direct appeal that the instructional error involving the
definition of reckless indifference, which omitted that the jury must find that defendant
was aware that his participation in the underlying felonies involved a grave risk of death,
was harmless based on the evidence in the record.6 But regardless of whether a decision
that an instructional error was harmless can be determinative of evidentiary sufficiency,
this court’s determination was made more than a decade before the California Supreme
Court clarified section 190.2’s meaning of reckless indifference to human life in Clark.
And, because this court summarily denied defendant’s habeas petition under Banks on
June 3, 2016, that decision does not constitute a merits determination and was also pre-
Clark.
Thus, no court has reviewed the jury’s felony-murder special circumstance
findings under Clark. Defendant is therefore entitled to such a review at the prima facie
stage of the section 1170.95 proceedings. (See Pineda, supra, 66 Cal.App.5th at p. 795
[pre-Banks and Clark murder defendant petitioning for section 1170.95 resentencing
relief “is entitled to a judicial determination as to whether his conduct is proscribed by
the special circumstances statute, as construed in Banks and Clark”].) Although Pineda
and Secrease suggest that this sufficiency-of-the-evidence determination can be made
on appeal with an adequate appellate record, “[r]emand will afford the parties the
opportunity to fully develop their positions on this potentially dispositive issue with the
6
As stated above, the jury was instructed that to find the special circumstance
allegations true, it had to find that defendant “actually subjectively appreciated the life
threatening risk created by his conduct and acted with conscious disregard for human
life.” The jury was not instructed that it had to find that defendant knowingly engaged
in criminal activity that he knew involved a grave risk of death. (See Clark, supra,
63 Cal.4th at p. 616.)
16
full benefit of the guidance set forth here and in [Pineda and] Secrease.” (Pineda, supra,
at p. 802.)
Accordingly, we remand the matter to the superior court to determine based on the
California Supreme Court’s guidance in Clark whether there is sufficient evidence in the
record to support the jury’s felony-murder special circumstance findings that defendant
acted with reckless indifference to human life. Thus, “ ‘we are remanding the case for
resumption of proceedings at the section 1170.95, subdivision (c) entitlement-to-relief
stage of the process, where the court’s task will be narrowly focused on whether, without
resolving conflicts in the evidence and making findings, the evidence presented at trial
was sufficient to support the felony-murder special-circumstance finding[s] under . . .
Clark. If the answer to that is yes, the section 190.2, subdivision (d) finding[s] made
against [defendant] foreclose[] him from further litigating that issue, thus rendering him
ineligible for resentencing relief as a matter of law. If the answer is no, an order to show
cause must issue and an evidentiary hearing must be held under section 1170.95,
subdivision (d)(3).’ ” (Pineda, supra, 66 Cal.App.5th at pp. 801-802.)
IV. DISPOSITION
The superior court’s order denying defendant’s Penal Code section 1170.95
petition is reversed. The matter is remanded to the superior court for a determination
of whether the evidence presented at trial was sufficient under People v. Clark (2016)
63 Cal.4th 522, 614-632 to support the felony-murder special circumstance findings
that defendant acted with reckless indifference to human life. If the answer to that is
yes, the Penal Code section 190.2, subdivision (d) findings render defendant ineligible
for resentencing relief as a matter of law. If the answer is no, an order to show cause
shall issue and an evidentiary hearing shall be held under Penal Code section 1170.95,
subdivision (d)(3).
17
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P.J.
DANNER, J.
People v. Mendoza
H047430