Filed 2/17/22 P. v. Jennings 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H049043
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 155731)
v.
MATTHEW GEORGE JENNINGS,
Defendant and Appellant.
Defendant Matthew George Jennings appeals the denial of his Penal Code
section 1170.95 petition for resentencing. At issue is a question that has divided the
courts of appeal and is currently pending before the California Supreme Court: Does a
felony-murder special circumstances finding (Pen. Code, § 190.2, subd. (a)(17)) that was
made before People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark) were decided preclude a defendant from making a prima facie
showing of eligibility for relief under Penal Code section 1170.95? (People v. Strong,
review granted March 10, 2021, S266606.) Consistent with an opinion from another
panel of this court (People v. Pineda (2021) 66 Cal.App.5th 792, review granted
September 29, 2021, S270513 (Pineda)), we will reverse the order denying defendant’s
petition and remand the matter with instructions to the trial court to determine whether
defendant’s conduct was proscribed by the special circumstances statute, as construed in
Banks and Clark.
I. TRIAL COURT PROCEEDINGS
Our brief factual summary is derived from this court’s prior opinion affirming
defendant’s judgment on direct appeal. (People v. Jennings (Apr. 11, 2001, H017202)
[nonpub. opn.].) We take judicial notice of that opinion on our own motion for the
limited purpose of providing context for the purely legal issue raised in this appeal.
(Evid. Code, §§ 452, subd. (d), 459.)
The manager of a craft store was ambushed at the store after it closed one night in
1991. The manager was bound with duct tape, robbed, and stabbed over 20 times which
led to his death. Approximately $9,000 was taken from the store’s safe. Defendant and
three other individuals were later arrested. Defendant was charged with first degree
murder (Pen. Code, § 187), two counts of robbery (Pen. Code, § 211), and two counts of
burglary (Pen. Code, § 459). (Unspecified statutory references are to the Penal Code.)
As to the murder count, the information alleged special circumstances of lying in wait,
torture, burglary, and robbery. (§ 190.2, subd. (a)(15), (a)(17)(A), (a)(17)(G).)
Defendant pleaded guilty to one burglary count and one robbery count before trial (both
for conduct on a different date unrelated to the homicide).
There was trial testimony that defendant was the “ ‘leader of the pack’ ” of men
charged with the killing. An acquaintance testified to hearing defendant and the other
men brag about committing robberies using a stun gun, and overhearing the men talk
about their plan to rob the specific craft store where the manager was killed. The same
witness testified that defendant appeared to be one of the masterminds behind the planned
craft store robbery. But evidence from multiple sources suggested that defendant was not
in the store when the manager was murdered, including a jail call from defendant to his
former girlfriend and statements to police by all three codefendants that defendant was
outside during the killing. Blood matching the manager’s blood type was found on the
clothing of the three codefendants when they were arrested, but no blood was found on
defendant’s clothing at the time of his arrest.
2
The jury found defendant guilty as charged, and found true three special
circumstance allegations (for lying in wait, burglary, and robbery). The trial court
sentenced him to a life term without the possibility of parole for the murder count,
consecutive to five years eight months for the burglary and robbery counts to which
defendant had pleaded guilty before trial. (The lying-in-wait special circumstances
finding was later invalidated by a federal district court on collateral habeas review.)
Defendant petitioned for section 1170.95 relief in 2019. The trial court ultimately
denied the petition, reasoning that “an undisturbed felony murder special circumstance
bars section 1170.95 relief as a matter of law.”
II. DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) 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.’ ” (Pineda, supra, 66 Cal.App.5th at pp. 797–798,
rev. granted.) As amended by that bill, section 189, subdivision (e) imposes felony
murder liability on a participant “only if he or she was the actual killer; acted with the
intent to kill in aiding, abetting, counseling, commanding, inducing, soliciting,
requesting, or assisting in 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 [s]ection 190.2.’ ” (Pineda, at p. 798, quoting § 189, subd. (e)(3).)
The bill also added section 1170.95, under which defendants serving sentences for
murder convictions can petition to be resentenced on a showing that they could no longer
be convicted of murder under the new law.
The jury in this case found true the felony-murder allegations that the murder
occurred during a robbery and a burglary. Felony-murder liability applies “where (1) the
murder occurred during the commission of a specified felony and (2) the defendant was
3
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.”
(Pineda, supra, 66 Cal.App.5th at p. 798, rev. granted; see § 190.2, subd. (a)(17), (c),
(d).)
Two California Supreme Court cases decided after defendant’s trial clarified the
meaning of the felony-murder special circumstances statute. Banks concluded that the
“ultimate question” regarding whether a defendant is a major participant is “whether the
defendant’s participation ‘in criminal activities known to carry a grave risk of death’
[citation] was sufficiently significant to be considered ‘major.’ ” (Banks, supra,
61 Cal.4th at p. 803.) Clark clarified “case-specific factors that are relevant to whether a
defendant exhibited reckless indifference to human life: (1) the defendant’s knowledge
of weapons, 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 felony; (4) the defendant’s knowledge of a cohort’s
likelihood of killing; and (5) the defendant’s efforts to minimize the risks of violence
during the felony.” (Pineda, supra, 66 Cal.App.5th at p. 799, rev. granted, citing Clark,
supra, 63 Cal.4th at pp. 618–622.) An individual with a felony-murder special
circumstances finding made before Banks and Clark may petition via habeas corpus to
have the finding invalidated. The petition must show there is no material factual dispute
relating to the petitioner’s conviction, and that the special circumstances statute as
construed in Banks and Clark did not encompass the conduct. (In re Scoggins (2020)
9 Cal.5th 667, 674.) Felony-murder special circumstances as clarified by Banks and
Clark mirror the post-Senate Bill No. 1473 requirements for felony murder. (Pineda, at
p. 799.)
4
The courts of appeal are divided regarding how to resolve a section 1170.95
petition from an individual who, like defendant, was found guilty of murder with felony-
murder special circumstances before the Supreme Court decided Banks and Clark. Some
courts have determined that a defendant must first successfully obtain habeas relief
regarding the special circumstances finding, concluding that until habeas relief is
obtained a defendant is ineligible as a matter of law for section 1170.95 relief. (Pineda,
supra, 66 Cal.App.5th at p. 800, rev. granted [collecting cases; e.g., People v. Simmons
(2021) 65 Cal.App.5th 739, 742, review granted September 1, 2021, S270048].) Other
courts have not imposed the habeas corpus prerequisite, concluding that a defendant may
“ ‘pursue relief by attacking his murder conviction—not his special circumstance
finding—on the ground that, under current law as revised by Senate Bill 1437, he could
no longer be convicted of murder.’ ” (Pineda, at p. 800, quoting People v. Secrease
(2021) 63 Cal.App.5th 231, 250, review granted June 30, 2021, S268862 (Secrease).)
Still others have taken a middle approach, reasoning 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
statute.” (Secrease, at p. 255.) The issue is pending in the California Supreme Court in
Strong. (People v. Strong, review granted March 10, 2021, S266606.)
A panel of this court reviewed the foregoing authorities and adopted the third
approach. (Pineda, supra, 66 Cal.App.5th at p. 801, rev. granted .) We agree with Pineda
and are persuaded that defendant should not be deemed categorically ineligible for relief
under section 1170.95 merely because a felony-murder special circumstances finding was
made before the Supreme Court clarified the standard in Banks and Clark. Nor would it
serve judicial economy to require defendant to seek habeas relief before petitioning under
section 1170.95.
5
Defendant is entitled to resume proceedings in the trial court at the
section 1170.95, subdivision (c) entitlement-to-relief stage, “ ‘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 under Banks and Clark.’ ” (Pineda, supra, 66 Cal.App.5th
at pp. 801–802, rev. granted.) If the evidence is sufficient to support the felony-murder
finding under those authorities, defendant is ineligible for section 1170.95 resentencing
as a matter of law. If the evidence is insufficient to support that finding, the trial court
must issue an order to show cause and conduct an evidentiary hearing under
section 1170.95, subdivision (d).
The Attorney General urges us to satisfy the Banks/Clark review because it
presents a question of law. But consistent with Secrease and Pineda, we find remand
appropriate, as it will allow the parties to fully develop their positions and the record
regarding this potentially dispositive issue.
III. DISPOSITION
The order denying defendant’s Penal Code section 1170.95 petition is reversed.
The matter is remanded to the superior court with directions to conduct a new prima facie
review consistent with this opinion.
6
____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Lie, J.
H049043 - The People v. Jennings