The opinion
Filed 11/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent
A159439
v.
KIARRA PRICE, (Contra Costa County
Super. Ct. No. 51103373)
Defendant and Appellant.
Appellant Kiarra Price appeals from the trial court’s denial of her
petition to vacate her 2013 murder conviction and for resentencing under
Penal Code section 1170.95. 1
In 2013, a jury found Price guilty of first degree murder and found true
the felony-murder special-circumstance allegation that the murder was
committed while Price was participating in a robbery and either (1) was the
killer, (2) aided and abetted the murder with the intent to kill, or (3) acted
with reckless indifference to human life and was a major participant in the
robbery. (See § 190.2.) The trial and verdict pre-dated 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), which clarified the meaning of “major
participant” and “reckless indifference to human life” as used in the third
alternative.
1 All section references are to the Penal Code.
1
On appeal, we affirmed the conviction, holding the jury’s special
circumstance finding was supported by substantial evidence regarding the
first alternative, that Price was the actual killer, and the second, that she
intended for Merrill to be killed. (People v. Price (2017) 8 Cal.App.5th 409,
451-454 (Price I).) We did not determine whether substantial evidence
supported a finding under the third alternative, i.e., that Price was a “major
participant” in the felony murder acting with “reckless indifference” for
human life.
In 2018, the Legislature adopted and the Governor signed into law
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which amended the statutory
definition of murder in sections 188 and 189 to eliminate murder liability
under the natural and probable consequences doctrine and to limit felony-
murder liability to cases in which the felony-murder special circumstance
was proven. The legislation provided a retroactive resentencing remedy
under section 1170.95 for individuals who were convicted of murder prior to
the amendment and could not be convicted under the amended murder
statutes. The legislation took effect on January 1, 2019.
In 2019, Price filed her section 1170.95 petition seeking to have her
murder conviction vacated and to be resentenced on any remaining counts.
The district attorney filed opposition. After appointing Price counsel,
receiving full briefing and taking judicial notice of Price’s record of conviction,
the superior court denied the petition, concluding, “the record here
establishes the clear viability of a prosecution for felony-murder with a
special circumstance.” It did not issue an order to show cause or hold an
evidentiary hearing. Price now appeals from that ruling.
We affirm. It is not clear which of the three special circumstance
alternatives were relied on by the jury. In this circumstance, we conclude—
2
without deciding whether substantial evidence review of any one possible
alternative basis for the special circumstance finding is enough to preclude
relief under section 1170.95—that substantial evidence supports each of the
three alternatives presented to the jury, including whether Price acted as a
“major participant” in the robbery acting with “reckless indifference” to
human life. Substantial evidence thus supports each of the three possible
bases for the jury’s special circumstance finding, and we conclude that under
these circumstances Price is not entitled to have her murder conviction
vacated and to be resentenced on the remaining charges. We therefore
affirm.
BACKGROUND
I.
The Trial and Verdict
Our opinion in Price I describes in detail the evidence presented
against Price at her trial. (Price I, supra, 8 Cal.App.5th at pp. 416-425.) We
will summarize it only briefly here. In substance, it showed that in 2009,
Price, then 20 years old, along with two friends, Kendra Fells and Teareney
Brown, participated in a robbery of 22-year-old Benjamin Merrill during
which one of them shot and killed him. Fells, the owner of the gun used in
the killing, entered a plea agreement for a 15-year determinate sentence in
exchange for testifying against Price. According to her testimony and other
evidence at trial, Price and Brown stopped at the house where Fells stayed
with her girlfriend in Pittsburg, California, and awakened Fells, who then
showed Price a revolver Fells had recently purchased. Price and Brown then
left in a car belonging to a friend and drove to San Francisco.
3
Sometime later 2, they returned to Pittsburg with a very intoxicated
Benjamin Merrill in tow and again stopped at Fells’s girlfriend Felicia
Edosa’s house. Price went inside, sporting an iPhone Fells and her girlfriend
had not seen her with before, awakened Fells, asked Fells to take a ride with
her, and took Fells’s gun from a drawer in the bedroom and put it in her
jacket. Price and Fells got into the car with Brown, who drove them to a
dimly lit park at about 3:00 a.m. A man Fells didn’t recognize (but later
learned was Merrill) was asleep in the backseat but awakened before they
arrived at the park, and he got out of the car to urinate in the bushes. The
three women also got out of the car. After Merrill finished urinating, Brown
robbed him of his wallet. Price believed he had more to take and said so.
Substantial evidence indicated that she pointed the gun at Merrill and, in
circumstances that are not altogether clear, 3 shot twice, hitting Merrill in the
chest. The three women got back into the car and left in a hurry, leaving
Merrill at the park. Neighbors who heard the shots and the sound of car tires
screeching found Merrill, who died at the scene. The autopsy showed Merrill
died from a shot that went through his chest and out his back. (Price I,
supra, 8 Cal.App.5th at p. 424.)
2 From the evidence presented at trial, it appears that the entire
sequence of events from the time Price arrived at Fell’s house the first time
and when Price, Brown and Fells returned there after the robbery and
shooting was approximately two hours. (Price I, supra, 8 Cal.App.5th at
pp. 417, 421, 423.)
3 Fells testified that after she heard Price say, “He got more,” she saw
Price pointing the gun at Merrill and understood Price was robbing him.
Shortly after that, as Fells was trying to get into the car, she turned and saw
Price on the ground although Merrill was not on top of her. At that point, she
did not see where the gun was pointing but heard two shots and saw a flash.
After that she did not see Merrill. He did not get back in the car and she
later read in the newspaper that he had died.
4
In the days following the robbery and shooting, Brown changed the
service on Merrill’s iPhone from one provider to another. The iPhone was
used both by Price and by Brown, but Price began using it shortly after the
robbery and it contained contact information for Brown and Fells but not for
Price.
The morning after the incident, Fells received a call from Price asking
if she was okay. (Price I, supra, 8 Cal.App.5th at p. 418.) Fells recognized
the number as the one from which she and Edosa had received calls on the
night of the murder and told Price not to call her on that phone anymore.
(Ibid.) A week after that, Fells saw Price with the iPhone and told her to get
rid of it. In the meantime, Price and Fells had texted each other, with Price
still using Merrill’s iPhone. (Ibid.) In a text exchange after Fells had read in
the paper that Merrill died, Fells chastised Price for “do[ing] to [sic] [m]uch
when it don’t need to b did,” meaning Price had not needed to shoot Merrill.
(Ibid. & fn. 4.) Price texted back that “it need it 2 b did regaurdless” and “Jus
on how it was done n—a[4] I been doin dis shit I kno wut I was doin.” (Id. at
pp. 418, 419, fn. 4.) Price further texted, “bitch if I wasn’t thinking yo dumb
ass wild [sic] b in jail rite now or dead so beloved [sic] me n—a I was
thinking.” (Id. at p. 419, fn. 4.)
In the first few days after the robbery and murder, Brown arranged for
the iPhone to be assigned a new phone number and service provider. (Price I,
supra, 8 Cal.App.5th at pp. 424-425.) Police nonetheless succeeded in
tracking the iPhone, which ultimately led to the arrests of Price and Brown.
After police arrested Price and Brown and while they were housed in
the same jail, a note or “kite” was intercepted and Price’s cellmate reported
seeing her writing a note like that one. The content, which included a
4 We decline to spell out the n-word.
5
reference to Brown’s daughter, suggested it had been intended for Brown. It
outlined a story they needed to stick to and stated that “even if Barney snitch
its gone b her word against ours,” and “[a]s long as we sayn the same thang
we gud!!!” Because they had been “thru fast track so we was on camara,”
Price was going to say she was “grindn” (selling drugs) in “the TLs” (San
Francisco’s Tenderloin neighborhood) when someone came to her with a
phone and she bought it. “[T]he next morning,” they “went 2 go get the shit
[phone] unlocked!!” Besides urging Brown to stick to this story, Price
advised, “O yea I hope u b rpin up thease letters 2 n they watchn us so we
gone have a be coo cuz I dnt wnt them 2 get us on some premadatated shit!!!”
(Price I, supra, 8 Cal.App.5th at p. 425, fn. 7.)
At the conclusion of the trial, the judge instructed the jury on
premeditated murder, felony murder, and aiding and abetting and conspiring
to commit these offenses. (Price I, supra, 8 Cal.App.5th at p. 426.) It also
instructed the jury on robbery, aiding and abetting robbery, conspiracy to
commit robbery, attempted robbery, firearm enhancement allegations and
the special circumstance of murder committed in the course of a robbery.
The jury convicted Price of robbery and first degree murder and found a
robbery-murder special-circumstance allegation to be true, but it rejected
three special allegations as to both robbery and murder: (a) that Price
“personally used a firearm,” (b) that she “intentionally and personally
discharged a firearm” and (c) that she “caused great bodily injury and death
to [Merrill].” The court sentenced Price to life without parole as required by
the special circumstance statute, Penal Code section 190.2. (Price I, supra,
8 Cal.App.5th at p. 414.)
6
II.
The Direct Appeal in Price I
On direct appeal in Price I, we addressed, among others, Price’s claim
that the jury’s robbery-murder special-circumstance finding was not
supported by substantial evidence. She made an argument about the
insufficiency of the evidence similar to those she raised in her section 1170.95
petition in the superior court, which she reprises on appeal. As we
summarized it, “Price’s argument that the evidence here was insufficient
focuses solely on section 190.2, subdivision (d), the reckless indifference and
major participant requirements that provision imposes for felony[-]murder
participants who are not the actual killer and the Banks factors that are
considered on review of a special circumstance finding for a nonkiller. She
observes that ‘[t]he jury expressly rejected Fells’s testimony appellant shot
Merrill’ and that ‘[t]he court defers to the jury’s credibility determination.’ ”
(Price I, supra, 8 Cal.App.5th at p. 452.)
In responding to Price’s arguments challenging the special
circumstance finding, we discussed Banks and Clark at some length. 5
(Price I, supra, 8 Cal.App.5th at pp. 447-451.) Among other things, we
concluded that the jury’s not true findings regarding the gun-related
allegations should not be considered on the separate question of the
sufficiency of the evidence on the robbery-murder special circumstance
requirements. (Id. at pp. 452-453, citing People v. Miranda (2011)
192 Cal.App.4th 398, 405-406 and People v. Lewis (2001) 25 Cal.4th 610, 656.)
Under the rule set forth in those cases, “ ‘Sufficiency-of-the-evidence review
5Price contended not only that the jury’s finding was not supported by
substantial evidence but that the instructions to the jury on the special
circumstance were erroneous under Banks and Clark.
7
involves assessment by the courts of whether the evidence adduced at trial
could support any rational determination of guilty beyond a reasonable
doubt. [Citations.] This review should be independent of the jury’s
determination that evidence on another count was insufficient.’ ” (People v.
Lewis, at p. 656.) In Price I, we looked at “all of the evidence presented to the
jury regarding Price’s role in the murder, including evidence indicating Price
was the actual shooter” (Price I, at pp. 452-453), “actually intended that
Merrill would be killed” (id. at p. 453) and “played the most prominent role
both in planning to rob Merrill and in robbing him and killing him.” (Ibid.)
Given that substantial evidence supported the findings that Price was the
actual killer and intended to kill Merrill, we concluded there were “more than
sufficient [facts] to support the jury’s true finding as to Price on the felony-
murder special circumstance.” (Id. at pp. 452-454.) Because there was
sufficient evidence that Price was the killer and that she aided and abetted
the felony murder with the intent to kill, we concluded it was unnecessary to
decide whether the evidence supported a finding that she acted with reckless
indifference within the meaning of Banks and Clark. 6 (Price I, at pp. 453-454
& fn. 22.)
As we will discuss further below, we now conclude that substantial
evidence also supported a finding that Price was both a major participant in
6 We stated that the evidence showed Price was a major participant in
the felony murder but did not rely on that finding or reach the third
alternative basis for a special circumstance finding of major participant and
reckless indifference to human life, believing it unnecessary to reach the
issue given our ruling on the first and second alternatives. Insofar as they
argue we previously decided the major participant and reckless indifference
issues, the People read too much into our prior opinion. We did not address
reckless indifference at all, and our discussion of major participation was
abbreviated. (Price I, supra, 8 Cal.App.5th at pp. 453-454 & fn. 22.)
8
the felony murder and acted with reckless indifference for human life, and
thus the jury’s special circumstance finding is supported under any of the
three possible bases on which the jury could have relied.
III.
The Section 1170.95 Proceedings
In March 2019, Price, representing herself, filed her section 1170.95
petition. The district attorney filed an opposition and the court appointed
counsel to represent Price. The judge who presided at Price’s trial ruled on
the petition in November 2019. (Price I, supra, 8 Cal.App.5th at p. 409.)
The court took judicial notice of its file in the case and of our opinion in
Price I. As we have said, based on our holding in Price I, the trial court
denied the petition because the record established “the clear viability of a
prosecution for felony-murder with a special circumstance.”
Price timely appealed from the trial court’s denial of her petition.
DISCUSSION
I.
Legal Background
A. The Felony-Murder Special Circumstance and the Banks and
Clark Decisions Interpreting It
The special circumstances statutes that are at the heart of this appeal
(and Price I)—sections 190.1, 190.2, 190.3 and 190.4—were amended by the
voters through the initiative process in 1990 to, among other things, extend
death penalty and life without parole sentences to major participants in
felony murders who act with reckless indifference for human life. (Raven v.
Deukmejian (1990) 52 Cal.3d 336, 342, 344-345; see § 190.2.) Section 190.2
provides that a defendant found guilty of first degree murder shall be
punished by death or life without the possibility of parole under specified
“special circumstances.” (§ 190.2, subd (a).) One such circumstance is that
9
the murder was committed while the defendant was engaged in, was an
accomplice in, or was in immediate flight after, the commission or attempted
commission of specified felonies, including robbery. (Id., subd. (a)(17)(A).)
The section further specifies that unless a special circumstance requires it,
the actual killer need not have had any intent to kill to be subject to the
heightened punishment. (Id., subd. (b).) A person other than the actual
killer is subject to the heightened punishment if he or she either: “with the
intent to kill aids, abets, counsels, commands, induces, solicits, requests, or
assists any actor in the commission of murder in the first degree” (id.,
subd (c)), or “with reckless indifference to human life and as a major
participant, aids, abets, counsels, commands, induces, solicits, requests, or
assists in the commission of” the felony that results in the death.” (Id.,
subd. (d).)
In 2015 and 2016, our Supreme Court in Banks and Clark interpreted
the “major participant” and “reckless indifference” language in section 190.2
to incorporate standards the United States Supreme Court had adopted
under the Eighth Amendment about three decades earlier in Tison v. Arizona
(1987) 481 U.S. 137 and Enmund v. Florida (1982) 458 U.S. 782, establishing
the minimum level of culpability necessary to impose the death penalty.
(Banks, supra, 61 Cal.4th at pp. 798, 805-811; Clark, supra, 63 Cal.4th at
pp. 608-623.) Our Supreme Court concluded that Tison and Enmund
“represent points on a continuum” of culpability. (Banks, at p. 802.) The
getaway driver in Enmund—who was a minor actor in an armed robbery, not
present at the scene of the killing and had no intent to kill—represented the
extreme lower end of the spectrum, at which the United States Supreme
Court found the death penalty constitutionally disproportionate. The Tison
brothers, on the other hand—who aided their murderer father and his
10
cellmate in an armed breakout from prison, smuggled guns into the prison,
participated in the capture of a family at gunpoint and the theft of their car
and stood by while the others debated whether to, and ultimately did, murder
the family—were major participants in the felony and acting with a reckless
indifference to human life, justifying imposition of the death sentence.
(Banks, at pp. 799-800, 802-803.) “Somewhere between them, at conduct less
egregious than the Tisons’ but more culpable than . . . Enmund’s, lies the
constitutional minimum” required for imposing a sentence of death and the
statutory minimum for imposing either death or life without parole. (Id. at
p. 802.)
In Banks and Clark, our high court derived from Tison, Enmund and
subsequent cases a series of factors helpful in determining whether the
“major participation” and “reckless indifference” components of the special
circumstances statute, section 190.2, subdivision (d), have been met (Banks,
supra, 61 Cal.4th at p. 803; Clark, supra, 63 Cal.4th at pp. 618-623), which it
then applied in reviewing the defendants’ substantial evidence challenges to
the jury’s special circumstance findings. (Banks, at pp. 805-811; Clark, at
pp. 618-623.) Banks, like Enmund, involved a getaway driver. The driver in
Banks waited for his confederates three blocks away for 45 minutes and then
picked them up and drove them away. (Banks, at pp. 804-805.) There was no
evidence that he played any role in planning the robbery or procuring the
weapons, nor any evidence that his confederates had previously committed
violent crimes. (Id. at p. 805.) The court held the felony-murder special
circumstance was not supported by sufficient evidence. In Clark, the court
held the special circumstance was not met for an accessory to a robbery who
was the “mastermind” of a plan to rob a store in which a gun would be used
but who designed the plan to avoid violence. (Clark, at pp. 612-613 & n. 72.)
11
The store was to be robbed after closing time when most employees would be
gone, employees would be handcuffed in a bathroom away from the scene,
and the gun that was to be used to move them to that location was to be
unloaded. There was no evidence that defendant had past experience with
the shooter, and he was not in the immediate area where his confederate shot
the victim. (Id. at pp. 612-614, 620-621.) The court did not decide whether
the defendant was a major participant, but found insufficient evidence that
defendant, having planned the crime to minimize the risk of violence, was
aware of an elevated risk to human life beyond that involved in any armed
robbery. (Id. at pp. 614, 623.)
In the wake of Banks and Clark, individuals convicted of murder with a
felony-murder special circumstance have petitioned the courts for a writ of
habeas corpus, arguing the evidence was insufficient to support major
participation or reckless indifference as Banks and Clark defined and limited
those requirements. (See In re Moore (2021) 68 Cal.App.5th 434, 439
(Moore).) In Moore and cases it cites, our appellate courts have granted
habeas relief, applying the Banks and Clark factors to vacate special
circumstance findings on insufficient evidence grounds. 7 Our high court
7 Moore, supra, 68 Cal.App.5th at p. 450, citing In re Taylor (2019)
34 Cal.App.5th 543 (Taylor), In re Ramirez (2019) 32 Cal.App.5th 384, 404-
406 (Ramirez), In re Bennett (2018) 26 Cal.App.5th 1002, 1018-1027
(Bennett), In re Miller (2017) 14 Cal.App.5th 960, 966-967, 974-980 (Miller);
see Taylor, at pp. 557-562. Unlike here, the evidence in these cases did not
indicate the habeas petitioners were the actual killers or that they aided and
abetted the murder with intent to kill. (See Moore, at p. 445 & fn. 6
[petitioner not actual killer]; Taylor, at p. 551 [petitioner aided and abetted
felony but was not actual killer and did not have intent to kill]; Ramirez, at
pp. 393, 405-406 [petitioner aided and abetted felony but was not actual
killer; no evidence he harbored willingness to kill]; Bennett, at p. 1008
[petitioner not one of shooters and was tried on theory he was major
participant who acted with reckless indifference to human life]; Miller, at
12
reversed a denial of habeas corpus relief in In re Scoggins (2020) 9 Cal.5th
667 (Scoggins) after concluding the evidence did not support a finding that
Scoggins acted with reckless indifference to human life. (Id. at pp. 677-684.) 8
The courts in these cases applied substantial evidence review but in doing so
carefully analyzed the factors identified in Banks and Clark and compared
the facts in the cases before them with Enmund and Tison to assess whether
the evidence placed the habeas petitioner above the high level of culpability
prescribed as the statutory and constitutional minimum for imposing a life
without parole or death sentence. (See Scoggins, at pp. 677-683; Taylor,
supra, 34 Cal.App.5th at pp. 551-554, 556-561; Ramirez, supra, 32
Cal.App.5th at pp. 393-408; Bennett, supra, 26 Cal.App.5th at pp. 1018-1027;
Miller, supra, 14 Cal.App.5th at pp. 966-967, 971, 973, 974-977.)
In other cases, courts have denied habeas corpus petitions after
concluding substantial evidence supported the challenged special
circumstance finding consistent with the standards of Banks and Clark.
(E.g., In re Loza (2021) 10 Cal.App.5th 38, 46-55 [petitioner heard
confederate brag about having shot someone in the head, participated in
planning convenience store robbery at which confederate killed two
employees, held door open to facilitate confederate’s escape, handed him gun
for use in robbery, was present at scene of robbery and did nothing to prevent
shooting or assist victims]; In re McDowell (2020) 55 Cal.App.5th 999, 1007-
1015 [petitioner instrumental in planning and perpetrating burglary and
attempted robbery of drug dealer by surveilling victim’s house beforehand,
pp. 966-967 [petitioner not present at scene of crime and no evidence he knew
lethal force was probable].)
8 In Scoggins, too, the petitioner’s confederates, not petitioner, killed
the victim and there was no evidence petitioner knew or intended that lethal
force would be used. (Scoggins, supra, 9 Cal.5th at p. 681.)
13
knocking on victim’s door, entering first, brandishing knife to facilitate
accomplice’s entrance, demanding, “ ‘[W]here is the shit?,’ ” and failing to
restrain accomplice or intervene after accomplice fired warning shot before
shooting victim].)
B. The Revised Law of Murder Under Senate Bill No. 1437 (2017-
2018 Reg. Sess.) and Petition Proceedings Under
Section 1170.95
“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘to
amend 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).)”
(People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) “To further that
purpose, Senate Bill 1437 added three separate provisions to the Penal Code.
First, to amend the felony-murder rule, Senate Bill 1437 added section 189,
subdivision (e): ‘A participant in the perpetration or attempted perpetration
of [qualifying felonies] in which a death occurs is liable for murder only if one
of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The person 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.’ ”
(People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).)
In effect, Senate Bill No. 1437 (2017-2018 Reg. Sess.) limited felony-
murder liability to murders that fall within the felony-murder special-
circumstances provisions of section 190.2. It also eliminated natural and
14
probable consequences murder liability altogether. (Gentile, supra,
10 Cal.5th at pp. 842-843.) And it “added section 1170.95, which provides a
procedure for convicted murderers who could not be convicted under the law
as amended to retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 959.)
As we explained in People v. Anthony (2019) 32 Cal.App.5th 1102, “ ‘An
offender may file a petition under section 1170.95 where all three of the
following conditions are met: “(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 first or
second degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.” ’ ” (Id. at p. 1148; § 1170.95, subd. (a)(1)–(3).)
“Where the petition complies with subdivision (b)’s three requirements,
then the court proceeds to subdivision (c) to assess whether the petitioner has
made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)” (Lewis, supra,
11 Cal.5th at p. 960.) “If the trial court determines that a prima facie showing
for relief has been made, the trial court issues an order to show cause, and
then must hold a hearing ‘to determine whether to vacate the murder
conviction and to recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner had not . . .
previously been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.’ (§ 1170.95, subd. (d)(1).) ‘The prosecutor
and the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.’ (§ 1170.95,
subd. (d)(3).) At the hearing stage, ‘the burden of proof shall be on the
15
prosecution to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.’ (§ 1170.95, subd. (d)(3).)” (Ibid.)
As we noted recently in People v. Duchine (2021) 60 Cal.App.5th 798,
“Since [Senate Bill No.] 1437 [(2017-2018 Reg. Sess.)] was adopted and its
mechanism for retroactive application has come into play through the filing
of section 1170.95 petitions, many questions have arisen about that process
and percolated up through appeals from resentencing decisions.” (Id. at
p. 811, fns. omitted.) Many of the questions have now reached our high court.
(See, e.g., Gentile, supra, 10 Cal.5th 830, 843-851, 853-859 [Sen. Bill No. 1437
(2017-2018 Reg. Sess.) bars conviction for second degree murder under
natural and probable consequences theory; § 1170.95 provides exclusive
avenue for retroactive relief under Sen. Bill No. 1437 (2017-2018 Reg. Sess.)];
Lewis, supra, 11 Cal.5th at pp. 962-963, 972 [§ 1170.95 entitles petitioner to
counsel on request after filing facially sufficient petition, requires single
prima facie showing and allows parties and trial court to use record of
conviction in assessing whether the petitioner has made a prima facie case].)
II.
The Parties’ Arguments on Appeal
Price contends her petition asserted an accusatory instrument was filed
against her which allowed the prosecution to proceed under the theories of
felony murder or murder under the natural and probable consequences
doctrine, that she was convicted under one of those theories and that she
could not now be convicted of murder because of changes made to the murder
statutes in Senate Bill No. 1437 (2017-2018 Reg. Sess.). Having thus
“complied with all of the statutory requirements,” she argues, she was
entitled to have the trial court conduct an evidentiary hearing. Relatedly,
she contends the trial court was required to assume her allegations as true in
16
determining whether she had established a prima facie case. In so arguing,
Price implies we must ignore the elephant in the room, namely, the jury’s
special circumstance finding.
These arguments are foreclosed by Lewis, in which our Supreme Court
held that “the parties can, and should, use the record of conviction to aid the
trial court in reliably assessing whether a petitioner has made a prima facie
case for relief under [section 1170.95,] subdivision (c).” (Lewis, supra,
11 Cal.5th at p. 972.) The record of conviction, the court reasoned, “will
necessarily inform the trial court’s prima facie inquiry under section 1170.95,
allowing the court to distinguish petitions with potential merit from those
that are clearly meritless.” (Id. at p. 971.) The Lewis court expressed the
caveat that the trial court generally should “ ‘ “take[] petitioner’s factual
allegations as true,” ’ ” make “ ‘ “a preliminary assessment regarding whether
the petitioner would be entitled to relief if his or her factual allegations were
proved” ’ ” and refrain from rejecting those factual allegations “ ‘on credibility
grounds without first conducting an evidentiary hearing.’ ” (Ibid.) But this
prescription was limited by the following holding: “ ‘[I]f 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.” ’ ” (Ibid.)
Price’s assertion in her petition that she “could not be convicted NOW
of first-degree murder because of changes to Section[s] 188 or 189 made
effective January 1, 2019” was challenged by the People, who pointed out that
the jury had “found true the special circumstance that the murder was
committed while she was participating in the robbery of Merrill” and “was
sentenced to life without parole pursuant to Penal Code section 190.2.”
17
Based on that finding, the People argued, “Not only could she be convicted as
the law currently defines murder, she was.”
Under Lewis, the trial court was not required to accept as true Price’s
allegation that she could not be convicted of murder under the current
statutes. It was entitled to consider the record of conviction in deciding
whether she established a prima facie case and was not required to hold an
evidentiary hearing before doing so. Thus, insofar as Price argues the trial
court erred in not accepting her allegation that she could not be convicted
under current law without considering the record of conviction, she is wrong.
That said, Lewis did not address whether a jury’s special circumstance
finding, with or without an affirmance of that finding on direct appeal, can be
challenged under section 1170.95 and, if so, what relief is available under
that section to a party asserting such a challenge. These questions are at the
heart of Price’s appeal and we must resolve them without guidance from the
California Supreme Court. Implicated in our analysis of these questions are
several of Price’s other arguments, including that (notwithstanding the jury’s
special circumstance finding and our holding that the finding was supported
by substantial evidence) she was entitled to an evidentiary hearing at which
the prosecution would have been required to prove a legally valid theory of
murder that it would not have been able to prove because the record shows
she was not the actual killer, had no intent to kill, was not a major
participant and did not act with reckless indifference to human life.
The People likewise make a few assertions that are foreclosed by Lewis,
such as that there is a two-step process for determining whether the plaintiff
has made out a prima facie case and that counsel need not be appointed until
the second step. (See Lewis, supra, 11 Cal.5th at pp. 962-963.) Those
assertions are of little or no consequence here because the trial court
18
appointed counsel at the outset and allowed full briefing in this case before
determining Price had not established a prima facie case. Price argues that
the court denied her petition prematurely not because it engaged in a one-
step or two-step process in evaluating whether she established a prima facie
case, but because it considered the record of conviction in doing so and erred
in concluding she had not met her burden.
Of greater significance is the People’s argument that because we
already held there was sufficient evidence to support the special
circumstance finding on direct appeal, and did so after Banks and Clark had
been decided, Price cannot challenge the special circumstance finding and is
categorically barred from relief under section 1170.95. The People also argue
that a special circumstance finding is valid until overturned under Banks and
Clark and that this must be accomplished by way of a petition for habeas
corpus. Only if the jury rejects a special circumstance finding or a court
reverses such a finding when reviewing it under Banks and Clark, the People
posit, may a party convicted of murder with such a finding seek relief under
section 1170.95.
In her reply, Price urges us, if we agree with the People’s procedural
argument that she must first challenge the special circumstance finding
through a petition for habeas corpus, to treat her appeal as a petition for
habeas corpus. She further argues, as she did on direct appeal, that the jury
did not find she was the actual killer, as evidenced by its rejection of the
firearm allegations. Price also argues that the People are wrong in
suggesting the special circumstance finding bars relief under section 1170.95
as a matter of law, contends the record contains scant evidence that she was
a major participant or acted with reckless indifference to human life and
further argues that the trial court should have ordered a hearing where the
19
People would have the burden to prove her ineligibility for sentencing beyond
a reasonable doubt.
At bottom, the contest between Price and the People rises or falls less
on matters of procedure and more on the merits of her petition. As we view
it, Price’s appeal turns on three questions: (1) Does section 1170.95 permit
Price to challenge the jury’s special circumstance finding? (2) If so, is she
entitled to an evidentiary hearing at which the People will be required to
prove the facts underlying that finding anew and she and the People may
present new evidence? (3) Does our ruling on direct appeal that substantial
evidence supported two of the three possible factual bases for the special
circumstance finding bar Price from challenging that finding? The key to
answering these questions lies in the intersection between Banks, Clark and
the special circumstance legislation those cases interpreted, on the one hand,
and Senate Bill No. 1437 (2017-2018 Reg. Sess.) and the legislative intent
behind it on the other. It is to these issues we now turn.
III.
Analysis
A. Senate Bill No. 1437 (2017-2018 Reg. Sess.) Did Not Alter the
Standard of Review for Special Circumstance Findings.
Currently pending in the California Supreme Court is the question
whether a felony-murder special-circumstance finding made before Banks
and Clark categorically precludes a petitioner from making a prima facie
showing of eligibility for relief under section 1170.95 as a matter of law.
(People v. Strong, rev. granted Mar. 10, 2021, S266606). On this question,
our appellate courts have been deeply divided. (See People v. Pineda (2021)
66 Cal.App.5th 792, 799-801 (Pineda) [discussing conflicting cases], rev.
granted Sept. 29, 2021, S270513; People v. Harris (2021) 60 Cal.App.5th 939,
954-958 [same], rev. granted Apr. 28, 2021, S267802.) Assuming a special
20
circumstance finding made before Banks and Clark does not categorically bar
such relief, a related question is what type of review applies in
section 1170.95 proceedings to claims of error concerning such findings.
Appellate courts have disagreed on the latter issue as well.
Some courts have held that a petitioner with a pre-Banks and Clark
special circumstance finding is not categorically barred from seeking relief
under section 1170.95 and is entitled to factfinding following an evidentiary
hearing. 9 These courts reason that Banks and Clark “construed the
meanings of ‘major participant’ and ‘reckless indifference to human life’ ‘in a
significantly different, and narrower manner than courts had previously.’ ”
(Smith, supra, 49 Cal.App.5th at p. 93, rev. gr.) According to these cases,
“the jury did not have the same questions before them” in cases decided prior
to Banks and Clark as in cases decided after them. (Smith, at p. 93.) Price
relies on this Smith line of cases and argues the trial court erred by failing to
issue an order to show cause and provide her an evidentiary hearing, in
effect, to relitigate the special circumstance issue.
Other courts have held that a special circumstance finding, including
one made prior to Banks and Clark, categorically bars relief under
section 1170.95 unless and until the petitioner first obtains a ruling, on direct
appeal or habeas corpus review, that the special circumstance finding is not
9 E.g., People v. Smith (2020) 49 Cal.App.5th 85, 95, rev. granted
July 22, 2020, S262835; People v. York (2020) 54 Cal.App.5th 250, 258-261,
rev. granted Nov. 18, 2020, S264954; People v. Torres (2020) 46 Cal.App.5th
1168, rev. granted June 24, 2020, S262011. See also People v. Harris, supra,
60 Cal.App.5th at pp. 959-960 (pre-Banks and Clark true finding on felony-
murder special circumstance did not render petitioner ineligible as matter of
law; where some Banks and Clark factors were disputed and not clearly
resolved by jury, evidentiary hearing was required), rev. gr.
21
supported by substantial evidence under the Banks/Clark standard. 10 These
cases reason that “Banks and Clark did not create a new rule of law, but
rather ‘clarified’ the already-existing meaning of the phrases ‘major
participant’ and ‘reckless indifference to human life’ for purposes of special
circumstance allegations under section 190.2, subdivision (d).” (Jones, supra,
56 Cal.App.5th at p. 482, rev. gr.; see also Nunez, supra, 57 Cal.App.5th at
p. 92, rev. gr.) “ ‘Where a decision clarifies the kind of conduct proscribed by
a statute, a defendant whose conviction became final before that decision’ is
entitled to postconviction, habeas relief if ‘the undisputed facts’ in the trial
record demonstrate their conduct ‘ “was not prohibited by the statute” as
construed in the decision.’ ” (Jones, at p. 482, citing Scoggins, supra,
9 Cal.5th at p. 673.) In these courts’ view, an attack on a special
circumstance finding after a conviction becomes final is a collateral attack on
the judgment that must proceed by habeas corpus. Thus, only after
successful challenge to the finding on direct appeal or by habeas petition may
an individual seek relief under section 1170.95. 11
Galvan also reasoned that eligibility for relief under section 1170.95
requires the petitioner to “show he or she ‘could not be convicted of first or
10 People v. Gomez (2020) 52 Cal.App.5th 1, 16-17 (Gomez), rev.
granted Oct. 14, 2020, S264033; People v. Galvan (2020) 52 Cal.App.5th 1134,
1142-1143 (Galvan), rev. granted Oct. 14, 2020, S264284; People v. Allison
(2020) 55 Cal.App.5th 449, 457-461 (Allison); People v. Jones (2020)
56 Cal.App.5th 474, 479 (Jones), rev. granted Jan. 27, 2021, S265854; People
v. Nunez (2020) 57 Cal.App.5th 78, 90-96 (Nunez), rev. granted Jan. 13, 2021,
S265918; People v. Simmons (2021) 65 Cal.App.5th 739, 749-750 (Simmons),
rev. granted Sept. 1, 2021, S270048; see also People v. Gutierrez-Salazar
(2019) 38 Cal.App.5th 411, 419-420.
11 Gomez, supra, 52 Cal.App.5th at p. 17, rev. gr.; Galvan, supra,
52 Cal.App.5th at p. 1142, rev. gr.; Simmons, supra, 65 Cal.App.5th at
pp. 748, 749, rev. gr.; see also Allison, supra, 55 Cal.App.5th at p. 459 & fn. 9.
22
second degree murder because of changes to Section[s] 188 or 189 made
effective’ as part of Senate Bill No. 1437 [(2017-2018 Reg. Sess.)].” (Galvan,
supra, 52 Cal.App.5th at p. 1142, rev. gr.) The changes to the special
circumstances standard occurred, the Galvan court opined, “not ‘because of
changes’ made by Senate Bill No. 1437 [(2017-2018 Reg. Sess.)], but because
of the clarification of the requirements for the special circumstance finding in
Banks and Clark.” (Ibid.) Gomez construed a section 1170.95 petition
challenging a pre-Banks and Clark special circumstance finding as “ ‘in effect
a challenge to the sufficiency of the evidence,’ ” and expressed concern that if
such an issue could be raised in a section 1170.95 petition the petitioner
would attain a remedy beyond his or her “due process right to challenge the
sufficiency of the evidence,” i.e., “a new trial, at which the prosecution would
bear the burden of proving matters that may not have been seen as relevant
at the original trial more than a decade earlier.” 12 (Galvan, at p. 1142, citing
Gomez, supra, 52 Cal.App.5th at pp. 15, 17, rev. gr.)
The People rely on this Gomez/Galvan line of cases and argue that the
forum for addressing a challenge to a pre-Banks and Clark special
circumstance finding is “through an appeal or on habeas corpus, rather than
a section 1170.95 petition.” Since this court already rejected a challenge to
the special circumstance finding against Price on direct appeal, the People
contend she has already been provided the review that Banks and Clark
prescribe.
Still other courts, including our colleagues in Division Four, have held
that “where a petitioner facing a felony-murder special-circumstance finding
12The “new trial” to which Galvan was referring is the evidentiary
hearing before a judge provided under section 1170.95, subdivision (d). (See
Galvan, supra, 52 Cal.App.5th at p. 1142, rev. gr.)
23
has never been afforded a Banks/Clark sufficiency-of-the-evidence review by
any court, [either] at the trial or appellate level,” he or she may seek
resentencing under section 1170.95, but the resentencing court should
undertake a sufficiency-of-the-evidence analysis “at the prima facie
entitlement-to-relief stage of a resentencing proceeding under subdivision (c)
of [section 1170.95].” (E.g., People v. Secrease (2021) 63 Cal.App.5th 231, 255
(Secrease), rev. granted June 30, 2021, S268862.) 13 Only if the resentencing
court first determines the record of conviction does not contain substantial
evidence to support the finding under Banks and Clark is the petitioner
entitled to an order to show cause and an evidentiary hearing. (Secrease, at
p. 236; Pineda, supra, 66 Cal.App.5th at pp. 801-802, rev. gr.; Arias, supra,
66 Cal.App.5th at p. 1004, rev. gr.) If the resentencing court concludes
sufficient evidence in the trial record “meets the minimum threshold of
personal culpability set by Banks and Clark,” the felony-murder special
circumstance finding will “foreclose resentencing as a matter of law.”
(Secrease, at p. 261.)
The Secrease and Gomez lines of cases agree that “section 1170.95,
subdivision (c) cannot reasonably be read to permit a ‘do-over’ of factual
issues that were necessarily resolved against a section 1170.95 petitioner by
a jury.” (Secrease, supra, 63 Cal.App.5th at pp. 254-255, rev. gr., citing
Allison and Jones.) Both lines of cases hold that Banks and Clark require
substantial evidence review of a previous special circumstance finding made
under section 190.2 before an individual can seek relief under
section 1170.95. They disagree primarily on whether that review must be
13 See Pineda, supra, 66 Cal.App.5th at pp. 801-802 [same], rev. gr.;
People v. Arias (2021) 66 Cal.App.5th 987, 1004 (Arias), rev. granted Sept. 29,
2021, S270555 [same].
24
performed by an appellate court via habeas corpus or direct appeal or may be
accomplished by a trial court considering a section 1170.95 resentencing
petition. 14 The Smith line of cases, on the other hand, interprets Senate Bill
No. 1437 (2017-2018 Reg. Sess.) as affording a new and different remedy to
petitioners raising such a challenge, an evidentiary hearing under
section 1170.95, subdivision (d), at which the parties may submit additional
evidence and the People bear the burden of proof to show beyond a
reasonable doubt that the petitioner is ineligible for resentencing, meaning
that he meets one of the three criteria for murder stated in section 189,
subdivision (e), which are the same as the special circumstances outlined in
section 190.2.
Putting aside the question of the proper forum for raising and resolving
such challenges, 15 we believe the Secrease and Gomez lines of cases have the
better argument regarding the nature of the review that applies to a
challenged special circumstance finding made prior to Banks and Clark. As
stated in Nunez, supra, 57 Cal.App.5th at p. 96, review granted, “Senate Bill
No. 1437 did not change any of the requirements for the special circumstance
14 As we have indicated, the Secrease case would allow the prosecution
to re-try the special circumstance issue after a determination that there is
insufficient evidence in the record to support it. By relegating petitioners
challenging a special circumstance finding to direct appeal or habeas corpus
review, the Gomez line of cases apparently would not provide for a re-do by
the prosecution, since in habeas cases the courts have reversed insufficiently
supported special circumstance findings without allowing for retrial.
15 In People v. Law (2020) 48 Cal.App.5th 811, 821-826, review granted
July 8, 2020, S262490, the court bypassed the proper forum question by
holding that the trial court’s erroneous decision that a pre-Banks and Clark
special circumstance finding was a categorical bar to resentencing was
harmless because substantial evidence supported the jury’s special
circumstance finding under Banks and Clark.
25
finding announced in Banks and Clark.” The remedy the Banks and Clark
decisions provide for special circumstance findings is not an evidentiary
hearing but a form of substantial evidence review.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) incorporated the special
circumstance finding under section 190.2 into the murder statutes and
thereby increased the culpability required for a conviction under the felony-
murder doctrine. But in doing so, the Legislature did not change the
substance of the special circumstances stated in that statute in any way. 16
Banks and Clark were decided prior to the enactment of Senate Bill No. 1437
(2017-2018 Reg. Sess.), and we presume the Legislature was aware of our
high court’s clarification of the major participant/reckless indifference
alternative for a special circumstance finding under section 190.2 and
16 Prior to enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.),
section 189 provided that murders committed “in the perpetration of” certain
felonies, including “robbery” are murder of the first degree (former § 189,
subd. (a).) Senate Bill No. 1437 (2017-2018 Reg. Sess.) added the proviso that
“[a] participant in the perpetration or attempted perpetration of a felony
listed in subdivision (a) in which a death occurs is liable for murder only if
one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2)
The person was not the actual killer, but, with the intent to kill, aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree. [¶] (3) The
person 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.) This addition incorporated the
elements of the felony-murder special circumstance into the murder statute.
(Compare ibid. with § 190.2, subds. (a)(17)(A) [felony-murder special
circumstance], (b) [actual killer need not have had intent to kill], (c) [person
not actual killer who, with intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted actor committing first
degree murder] & (d) [person not actual killer who, with reckless indifference
to human life and as major participant, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted in commission of felony
that resulted in death].)
26
intended to incorporate the high court’s holdings, along with section 190.2
itself, into the murder statutes. 17 (In re Greg F. (2012) 55 Cal.4th 393, 407.)
We also presume that the Legislature understood that the remedy afforded
by Banks and Clark for special circumstance error is substantial evidence
review of the record to determine whether the finding is supported by
evidence sufficient to show the minimum level of culpability those cases (and
Tison and Enmund) require. The Legislature’s incorporation by reference of
the substance of section 190.2’s special circumstances, without change, into
the murder statute reflects its intent that the Banks/Clark interpretation of
the special circumstance terms would govern both liability for felony murder
and eligibility for a sentence of death or life without parole. (See Banks,
supra, 61 Cal.4th at p. 804 [§ 190.2 as interpreted governs eligibility for
sentences of death and life without parole].) The Legislature’s failure
explicitly to expand the remedy afforded by those cases beyond review for
substantial evidence supporting the minimum levels of culpability those
cases required implies it did not intend to provide a new or different remedy
for a claim of Banks/Clark error. (See Greg F., at p. 407 [failure of
Legislature to change law in particular respect when subject is before it while
making changes in other respects indicates intent to leave law as it stands in
respects not amended].)
Nor do we construe the evidentiary hearing provision of
section 1170.95, subdivision (d) to mean a petitioner is entitled to a new
(albeit non-jury) trial to relitigate factual matters, such as a special
circumstance finding, that were already determined by a jury. As we have
17 Indeed, the presumption arguably is not necessary since the
legislative history of the bill shows the Legislature was in fact aware of the
Banks and Clark decisions when it adopted Senate Bill No. 1437 (2017-2018
Reg. Sess.). (Secrease, 63 Cal.App.5th at pp. 258-259 & fn. 20, rev. gr.)
27
explained, section 1170.95, subdivision (d) entitles a petitioner who has made
a prima facie case that she falls within the provisions of the section, including
by showing she was convicted of murder in a case in which the prosecution
proceeded under a now-invalid murder theory (id., subd. (a)(1) & (a)(2)), to an
evidentiary hearing at which the parties may litigate facts relevant to other,
still valid murder theories that the jury did not necessarily previously decide.
To prove (or refute) such a theory, the parties may present new evidence, and
the People bear the burden of proof beyond a reasonable doubt. (Id.,
subd. (d)(3).)
The evidentiary hearing does not mean the Legislature intended to
allow the parties to reopen and retry matters of fact that the jury already
resolved. Indeed, subdivision (d)(2) suggests the Legislature had no such
intent. It provides in relevant part that, “[i]f 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.” Thus, the People
do not get a do-over where the jury has rejected a special circumstance
allegation. And while it is true that the statute does not state the opposite,
i.e., that where there was a prior finding by a court or jury that the petitioner
did act with reckless indifference to human life and was a major participant
in the felony, the court shall not vacate the conviction, that does not mean the
Legislature intended to allow the petitioner to relitigate those or other facts
already decided against her by a jury. We find it more likely that the
Legislature did not include such a categorical assertion because it did not
intend to deny petitioners with special circumstance findings the right to
pursue the substantial evidence review Banks and Clark already afford them.
28
(See § 1170.95, subd. (f) [“This section does not diminish or abrogate any
rights or remedies otherwise available to the petitioner”].)
In short, the most plausible understanding of section 1170.95,
subdivision (d) is not that it permits either party to retry factual
determinations actually and necessarily made by the jury at the petitioner’s
trial. Rather, we agree with Justice Menetrez’s observation in a recent
concurring opinion that “[t]he purpose of section 1170.95 is to give the
defendants the benefit of amended sections 188 and 189 with respect to
issues not previously determined, not to provide a do-over on factual disputes
that have already been resolved.” (Jones, supra, 56 Cal.App.5th at pp. 490-
491 [conc. opn. of Menetrez, J.], rev. gr.) 18 As our Division Three colleagues
stated in People v. Daniel (2020) 57 Cal.App.5th 666, 678, review granted
February 24, 2021, S266336, in an analogous context, “We cannot agree that
section 1170.95 authorizes a defendant to present new evidence to undermine
a jury’s finding of guilt under a particular theory of murder, effectively
retrying the case.”
We disagree with cases like Smith that posit that relitigation of special
circumstance findings should be permitted under section 1170.95 because
“the jury did not have the same questions before them” in cases decided prior
18 We express no view whether Secrease is correct in holding
subdivision (d) provides the People with a do-over on the special circumstance
finding if a court concludes substantial evidence does not support the finding
under the standards set in Banks and Clark. We note that successful habeas
challenges to special circumstance findings have resulted in such findings
being vacated. (See Scoggins, supra, 9 Cal.5th at p. 684; Taylor, supra,
34 Cal.App.5th at p. 563; Ramirez, supra, 32 Cal.App.5th at p. 408; Bennett,
supra, 26 Cal.App.5th at p. 1027; Miller, supra, 14 Cal.App.5th at p. 980.)
None of those cases addressed the effect of their rulings on the underlying
murder conviction in the wake of Senate Bill No. 1437 (2017-2018 Reg. Sess.).
29
to Banks and Clark as in cases decided after them. (Smith, supra,
49 Cal.App.5th at p. 93.) There is no indication the questions put to the jury
have changed as a result of Banks and Clark. “[O]ur Supreme Court has not
required that juries be instructed on the clarifications, and in the wake of
Banks and Clark, no mandatory language or material changes were made to
the CALCRIM special circumstance instructions. [Citations.] Rather, while
CALCRIM No. 703 now includes optional language drawn from Banks and
Clark, regarding the factors a jury may consider, ‘[t]he bench notes to the
instruction state that Banks “stopped short of holding that the court has a
sua sponte duty to instruct on those factors,” and Clark “did not hold that the
court has a sua sponte duty to instruct on those factors.” ’ ” (Nunez,
57 Cal.App.5th at pp. 92-93, rev. gr.) In Price I, we held that neither Banks
nor Clark “compels a more explicit jury instruction on particular factors or
facts that must be proven” to establish the high degree of culpability they
require. (Price I, supra, 8 Cal.App.5th at p. 451; see also Secrease, supra,
63 Cal.App.5th at p. 256 [problem with pre-Banks and Clark special
circumstance finding was not inadequate jury instruction but need for
judicial review of finding under Banks and Clark standards.], rev. gr.)
We do not disagree with the cases observing that the clarifying
interpretations of the special circumstance language contained in Banks and
Clark are significant. Indeed, as we said in Price I, “[t]he decisions in Banks
and Clark indicate the felony-murder special circumstance may not lightly be
applied to every participant in a felony murder and that the evidence
required to meet the major participant and reckless indifference elements in
the case of a nonkiller must reflect a high degree of culpability.” (Price I,
supra, 8 Cal.App.5th at p. 451.) But in our view, Banks and Clark require
that these clarifying interpretations be applied by the reviewing court rather
30
than the factfinder. In other words, Banks and Clark require a substantial
evidence standard of review, a legal determination requiring an appellate
court to view the evidence in the light most favorable to the prosecution, to
presume all facts that can reasonably be deduced from the evidence and to
determine if a rational trier of fact could have found the elements (as
interpreted in Banks and Clark) beyond a reasonable doubt. (Banks, supra,
61 Cal.4th at p. 804; Clark, supra, 63 Cal.4th at p. 610.)
Banks and Clark (and later cases applying them) also compared the
role of the defendants in the cases before them to the roles of Enmund, and
the Tison brothers, to determine whether the defendants fell sufficiently high
on the culpability spectrum to merit sentences of life without parole or death.
(Banks, supra, 61 Cal.4th at pp. 805-807; Clark, supra, 63 Cal.4th at pp. 618-
620, 621, 623.) Banks, Clark and their progeny have engaged in a legal
analysis review of the record to determine the sufficiency of the evidence and
a determination whether the facts establish a legally prescribed minimum
level of culpability; none has engaged in a new factual determination. (See
Ramirez, supra, 32 Cal.App.5th at p. 408 [claim of Banks/Clark error “does
not involve retrying issues of fact, but rather the application of law to
established facts”]; Miller, supra, 14 Cal.App.5th at p. 980 [claim of
Banks/Clark error “does not require resolution of disputed facts; the facts are
a given, they are just legally insufficient under section 190.2 as elucidated in
Banks and Clark”].) To be sure, the inquiry regarding culpability is fact-
specific. Nonetheless, the facts are fixed. They are defined by the evidence in
the trial record and the inferences that reasonably can be drawn from them,
construed in the light most favorable to the People. The reviewing court does
not reweigh the evidence or determine credibility anew.
31
For all of these reasons, we conclude that section 1170.95 does not
provide petitioners challenging a special circumstance finding with review
greater in scope than that provided by Banks and Clark. The Legislature
understood when it enacted section 1170.95 that the review afforded to such
a challenge is a judicial determination regarding whether substantial
evidence supports the special circumstance finding, as interpreted in Banks
and Clark. Nothing in section 1170.95 evinces an intent to expand that pre-
existing remedy.
We need not decide whether Banks/Clark review must be accomplished
by a direct appeal or a habeas petition or may instead be raised and decided
at the prima facie stage of a section 1170.95 petition in the trial court as our
colleagues held in Secrease. That is because we agree with the Fourth
District’s holding in People v. Law, supra, 48 Cal.App.5th at p. 822, review
granted, that “[w]hether there is sufficient evidence that [an individual] was
a major participant in [a] robbery who acted with reckless indifference to
human life is a question we can decide on appeal.”
B. Substantial Evidence Supports the Jury’s Special
Circumstance Findings, and Price Is Thus Ineligible for
Resentencing.
As we have explained, on direct review of the judgment against Price,
we rejected her claim that the evidence was insufficient to support the jury’s
special circumstance findings under section 190.2. While we concluded that
the evidence supported a finding under the first felony-murder special
circumstance in section 190.2, that Price was the actual killer, and under the
second, that she acted with intent to kill, we concluded it was unnecessary for
us to address the sufficiency of the evidence to support a finding under the
third version of the special circumstance, the one addressed in Banks and
Clark. It cannot be discerned from the record which of those three
32
alternatives the jury found true in finding the special circumstance was met.
Price claims it cannot have been that she was the actual killer because the
jury found not true the allegation that in the commission of the murder she
intentionally and personally discharged a firearm, causing great bodily injury
or death to Merrill. As we have discussed, we rejected the similar argument
she made on direct appeal that the firearm finding demonstrates there is no
substantial evidence that she was the actual shooter based on the rule that
substantial evidence review of one count “ ‘ “ ‘should be independent of the
jury’s determination that evidence on another count was insufficient.’ ” ’ ”
(Price I, supra, 8 Cal.App.5th at p. 452.)
Having again reviewed Banks and Clark and the cases applying
substantial evidence review to special circumstance findings in the wake of
those decisions, we are less certain that the general rule that substantial
evidence is considered for each charge or enhancement in isolation should be
applied to substantial evidence review of special circumstance findings. The
substantial evidence review applied to such findings has been more searching
than that applied in other contexts, entailing an independent look at the
factors Banks and Clark identified as important and what the evidence shows
regarding those factors. This review also has entailed a comparison of the
defendant’s culpability, as reflected by those factors, with the culpability
found sufficient or insufficient in Banks, Clark, Enmund and Tison.
Secrease implies that the view-each-charge-in-isolation rule does not
apply in this context. There, the court observed that the “not true finding on
the weapons use allegations” against Secrease “suggest[ed] the prosecution
failed to prove that Secrease was the actual killer” and the court therefore
was not confident his “denial he was the actual killer or that he acted with
intent to kill [was] irrefutably rebutted by the felony-murder special-
33
circumstance finding.” (Secrease, supra, 63 Cal.App.5th at pp. 261, 262,
rev. gr.) The court remanded the case to the trial court for resumption of the
section 1170.95 proceedings at the “subdivision (c) entitlement-to-relief stage
of the process,” to determine, “without resolving conflicts in the evidence,”
“whether the evidence presented at trial was sufficient to support the felony-
murder special-circumstance finding under Banks and Clark” and thus
“foreclose[d] [Secrease] from further litigating that issue” and “render[ed]
him ineligible for resentencing relief as a matter of law.” (Secrease, supra,
63 Cal.App.5th at p. 264.)
Also, in People v. Gonzalez (2018) 5 Cal.5th 186 (Gonzalez), our high
court considered whether a special circumstance finding made under
section 190.2 demonstrated that a trial court’s erroneous failure to instruct
on lesser included murder offenses was harmless, and the court concluded
that it did. (Gonzalez, at p. 191.) The court did not address the sufficiency of
the evidence to support the special circumstance finding under Banks and
Clark. But in addressing the defendant’s argument that the special
circumstance finding was “unreliable” because the jury had found untrue the
allegations that a principal was armed and that the defendant personally and
intentionally discharged a firearm, the court noted the rule that “[w]here a
jury’s findings are irreconcilable, we normally attribute such tensions to
compromise, lenity or mistake, and give effect to all of the jury’s findings” but
did not apply it. (Gonzalez, at pp. 207-208.) Instead, the court concluded the
special circumstance and firearm findings in that case could be reconciled,
positing that “the jury could have concluded Gonzalez was not armed and
still found defendants had knowledge of a ‘grave risk of death.’ ” (Id. at
p. 207.) The dissent found the “reconciliation” of the two was beyond a
stretch. (See id. at pp. 213-214 (dis. opn. of Liu, J., joined by Kruger, J.)
34
[“But what are we to make of the jury’s ‘not true’ finding on the allegation
that ‘one of the principals was armed with a firearm in the commission of
[the] crime? How is it possible that the jury believed both (1) that [the
defendants] engaged in criminal activity that they knew involved a grave risk
of death, and (2) that none of them was armed with a firearm in the
commission of the crime?”].) The dissenters also found the majority’s
treatment of the special circumstance finding as confirmation of the validity
of the felony-murder verdict, while “chalk[ing] [the jury’s firearm-related
findings] up to compromise, lenity or mistake,” inconsistent and would have
held the firearm findings established a reasonable probability that a jury
instructed on lesser included offenses and related defenses would have
decided the case more favorably to the defense. (Ibid.)
The Gonzalez and Secrease opinions’ treatment of firearm findings in
the context of special circumstance findings, coupled with the jury’s rejection
of similar firearm enhancements in this case, cause us to doubt that we
should rely on the evidence showing Price was the actual killer in affirming
the denial of her petition. 19 Specifically, the jury rejected findings that she
used or discharged a weapon or caused serious bodily injury or death to
Merrill; if we do not ignore those findings they cast doubt that the jury found
Price was the actual killer. We have less concern about the evidence of intent
to kill, which is not in tension with any of the jury’s findings. Even so, it is
not clear which alternative the jury actually found true, 20 and we are
19 Indeed, the jury’s not true finding that Price personally used a gun
suggests it may not have found that she brandished a gun at Merrill, since
the instructions indicated that “display[ing] the firearm in a menacing
manner during the commission of the offense” constituted personal use.
20 Here, the pre-Banks/Clark jury found the special circumstance to be
true but the verdict form did not require it to specify which of the three
alternatives it relied on. Thus, we do not know whether it concluded Price
35
reluctant to rely on any one alternative to support the special circumstance
finding when we can avoid any doubt as to the validity of the finding by
completing the circle we began in Price I. We will determine whether, even
assuming the jury did not find Price was the actual killer or that she
intended that Merrill would be killed, its special circumstance finding is valid
based on any of the three alternative bases on which the jury may have
relied. We will thus review the third alternative basis for the jury’s finding,
the one we did not reach on direct appeal: that Price was a major participant
in the felony murder and acted with reckless indifference of a grave risk to
human life. If substantial evidence supports those findings and Price’s
conduct and mental state meet the minimum culpability requirements
established in Banks and Clark, the special circumstance finding is valid and
precludes any further challenge to that finding.
Applying the Banks and Clark factors, we conclude that on this record
the jury could readily have found beyond a reasonable doubt that Price was a
major participant in the felony murder and acted with reckless indifference to
human life within the meaning of Banks and Clark. We begin with whether
Price was a major participant. Price’s role in planning the criminal
enterprise was substantial. As we said in Price I, “[s]he participated in the
crime from beginning to end, including driving to San Francisco, picking [the
victim] up, taking (and keeping) his iPhone, returning to Pittsburg with him
inebriated and passed out in the backseat of the car, stopping at Fells’s house
to get Fells’s gun, taking the gun and Merrill to the park, participating in a
further effort to rob him there and, after he was shot, leaving him in the park
alone to die.” (Price I, supra, 8 Cal.App.5th at pp. 453-454.)
was the actual killer, an aider and abettor of the murder acting with intent to
kill or a major participant acting with reckless indifference to human life.
36
While the evidence of planning is circumstantial, Price’s role as the
primary planner and decisionmaker in the crime was established by the
evidence of the following facts. On the night of the robbery and shooting, she
learned Fells had acquired a gun. After picking up the inebriated Merrill,
she took possession of his iPhone and used it in the car on the way back to
Pittsburg to place more than 20 calls to Fells’s and Edosa’s phone. The jury
could infer from those calls that she was already planning to pick up Fells
and take her gun while she and Brown were in the car driving back across
the bridge with Merrill in tow. The inference is bolstered by the fact that she
did just that. She and Brown, with Merrill passed out in the car, returned to
Fells and Edosa’s house where she entered the house, asked why Fells and
Edosa had not picked up their phone, went to the room where Fells was
sleeping, convinced Fells to accompany her on a “ride,” retrieved Fells’s
loaded gun from the drawer in the bedroom, put it in her jacket and took it
along with her to the dimly lit nearby park. It became clear to Fells at some
point after they arrived at the park that a robbery was afoot. Price and
Brown intended to rob Merrill. Price participated with Brown in that effort.
Assuming Price did not herself shoot Merrill, she gave the loaded gun to
Brown to do so. After the shooting, Price kept the phone and Brown took
Merrill’s wallet.
According to Edosa’s testimony and the texts between Price and Fells
after the crime, Fells was upset by the shooting and thought it had been
unnecessary. Price texted Fells stating, “it need it 2 b did,” she had done this
“shit” before and knew “wut I was doin.” When Fells texted Price that she
“need to start thinkn b4 u do stupid shit,” Price texted that she “was
thinking” and if she hadn’t been, Fells would be “in jail rite now or dead.” In
37
the kite intended for Brown, Price outlined the story she and Brown should
tell to avoid a murder conviction.
All of this evidence suggests Price was the captain of the entire
criminal enterprise. To be sure, it appears to have been a crime of
opportunity facilitated by Merrill’s unfortunate decision to get into the car.
And it was not the kind of complex crime that would require a great deal of
planning. But the evidence indicates that after Merrill got into the car a plan
was made and that Price was the author of that plan.
This evidence also makes plain that whether or not she shot Merrill,
Price supplied the gun to be used in the robbery. As we have said, Price
retrieved Fells’s gun and brought it with her to the park. After the group
arrived at the park, Brown took Merrill’s wallet, saying “I got it,” but Price
insisted, “He got more,” and, according to Fells, pointed the gun at Merrill’s
chest. Whether it was Price who ultimately pointed the gun at Merrill and
pulled the trigger or Brown who did one or both of those things does not
matter. The fact that Price returned to Fells’s house to obtain the gun,
brought it to the scene and either used it or gave it to Brown to use during
the robbery (or both) objectively supports the inference that she was a major
participant in the felony murder. So do Fells’s text messages to her and hers
to Fells shortly after the incident in which Fells blamed her for the shooting
and she responded that she had done similar things before and knew what
she was doing and that it needed to be done.
Further, the evidence strongly indicates that Price acted with reckless
indifference to human life. As the court observed in Clark, supra, 63 Cal.4th
at pp. 614-615, the requirements of being a major participant and having
reckless indifference to human life are interrelated and “ ‘significantly
overlap . . . , for the greater the defendant’s participation in the felony
38
murder, the more likely that he acted with reckless indifference to human
life.’ ” (Ibid., quoting Tison, supra, 481 U.S. at p. 153.) According to Clark,
the United States Supreme Court’s “view of ‘reckless indifference’ ” is “that it
encompasses a willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire that death as
the outcome of his actions.” (Clark, at p. 617.) Citing the Model Penal Code,
the court in Clark observed that reckless indifference “encompasses both
subjective and objective elements.” (Clark, at p. 617.) “The subjective
element is the defendant’s conscious disregard of risks known to him or her.”
The objective component is measured by “what ‘a law-abiding person would
observe in the actor’s situation,’ ” and whether the defendant’s disregard of
the risk “ ‘involved a gross deviation from the standard of conduct that a law-
abiding person in the actor’s situation would observe.’ ” (Ibid.) The fact that
a robbery involves gain is not enough; nor is the mere awareness that one’s
confederates are armed. (Id. at p. 618.)
Knowledge of weapons and use and number of weapons is the first
factor identified in Clark as bearing on reckless indifference. (Clark, supra,
63 Cal.4th at p. 618.) Here, there was a single gun at the scene of Merrill’s
killing and it was supplied by Price, who retrieved it from Fells’s drawer and
brought it to the scene. Further, Price was in possession of the gun when
they arrived, and the evidence supported an inference that, if Brown was the
killer, Price handed Brown the gun at the scene. There was evidence that
Price had owned multiple guns (one having recently been confiscated by
police), had shot a revolver and was familiar with guns and had been shown
Fells’s gun earlier that night. There was also evidence that the gun was
loaded. The jury reasonably could infer from her experience with guns that
Price knew Fells’s gun was loaded when she picked it up and brought it with
39
her to the scene of the intended robbery. Further, to the extent the shooting
was precipitated by resistance on Merrill’s part, 21 Price either knew or should
have known of the potential that a strapping young man like Merrill, 22 with a
gun pointed at him, would attempt to defend himself, especially when he was
extremely intoxicated and unable to appreciate the danger to himself, and
that, if he resisted, she or one of her confederates would use the gun to kill
him. These circumstances support a finding that Price was subjectively
aware of and indifferent to the risk of death posed by her participation in the
robbery and murder.
Physical presence at the scene and opportunity to prevent the crime or
aid the victim is the second factor identified in Clark for reckless indifference.
“Proximity to the murder and the events leading up to it may be particularly
significant where . . . the murder is a culmination or a foreseeable result of
several intermediate steps, or where the participant who personally commits
the murder exhibits behavior tending to suggest a willingness to use lethal
force.” (Clark, supra, 63 Cal.4th at p. 619.) “In such cases, ‘the defendant’s
presence allows him to observe his cohorts so that it is fair to conclude that
he shared in their actions and mental state. . . . [Moreover,] the defendant’s
presence gives him an opportunity to act as a restraining influence on
murderous cohorts. If the defendant fails to act as a restraining influence,
then the defendant is arguably more at fault for the resulting murders.’ ”
(Ibid.) The high court in Tison and other appellate courts “have considered
21 Fells testified that Price pointed the gun at Merrill’s chest but that,
after Price did so and before the shooting, she saw Price on the ground and
could not see the gun. Fells did not know whether Price had been pushed or
tripped or slipped. Merrill was not on top of Price when she was on the
ground. However, Fells heard two shots and saw a flash.
22 Merrill was six feet two inches tall and weighed 185 pounds.
40
relevant a defendant’s failure to provide aid while present at the scene.”
(Ibid.)
Price was present at the scene of Merrill’s killing in the park, which
was the culmination of several intermediate steps that we have already
spelled out. She brought the loaded gun with her to the poorly lit park,
where it became clear she and Brown intended to further rob Merrill of his
wallet and any other items of value he may have had. Far from attempting
to restrain Brown, Price (assuming she was not herself the shooter) gave
Brown the gun while or after Price tried to find other items of value to take
from Merrill. Further, once Merrill had been shot and even though he did not
immediately die, neither Price nor her confederates made any effort to render
him aid. Instead, they quickly got in the car and hurried off, neighbors
nearby hearing the screech of their wheels.
The third Clark factor for reckless indifference is the duration of the
felony. (Clark, supra, 63 Cal.4th at p. 620.) “Where a victim is held at
gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators
for prolonged periods, ‘there is a greater window of opportunity for
violence . . . .’ ” (Ibid.) Here, while the times at which different events
occurred varied with the testimony, the most reliable evidence indicated that
Brown and Price crossed the Bay Bridge heading to San Francisco at
1:21 a.m. and that the shots that killed Merrill were heard by nearby
residents close to 3:00 a.m. Thus, it appears Merrill was in the car with Price
and Brown for one to two hours between the time they picked him up in San
Francisco and, after stopping at Fells’s house, took him to the park, robbed
and killed him. He was passed out when they left Fells’s house and had a
blood alcohol level of .24 at the time of his death, indicating he was in a state
of high intoxication throughout, and there is no indication he consented to
41
being taken out of San Francisco. This period of time, coupled with Merrill’s
intoxication, in fact provided a greater window of opportunity for violence
because it enabled Price to obtain Fells’s gun and to take Merrill to a dimly
lit park where they could rob him without being seen.
The fourth Clark factor for reckless indifference is a defendant’s
knowledge of a cohort’s likelihood of killing. (Clark, supra, 63 Cal.4th at
p. 621.) There was no evidence that Brown or Fells had previously used guns
in a robbery or otherwise, or that Price was aware of past conduct on their
part that heightened the risk of a killing here. Thus, the fourth Clark factor
does not weigh in favor of a finding of reckless indifference. Regardless, this
factor is less significant where, as here, the defendant intentionally supplied
a loaded gun to her confederate while the robbery attempts were ongoing.
Further, other evidence indicates that even if Price was not intent on Merrill
being killed, she was aware of a high risk that killing him would, in her view,
be necessary. Merrill was not only extremely drunk, but he was a tall 22-
year-old man. The likelihood that he would resist efforts by two women to
rob him had to have been apparent, and Price’s anticipation of this is evinced
by her stopping to pick up Fells and bring Fells’s gun to the scene. As she
texted Fells later, she had done this before and knew what she was doing,
and she decided it was necessary to shoot Merrill.
The fifth Clark factor for reckless indifference concerns a defendant’s
efforts to minimize the risk of violence during the felony. (Clark, supra,
63 Cal.4th at pp. 621-622.) That factor also weighs in favor of finding
reckless indifference here. There is no evidence that Price took any steps to
minimize the risk of violence. To the contrary, her acts of bringing a loaded
gun to the scene of a robbery and handing it to a cohort while they were in
the process of robbing the victim significantly increased the risk.
42
In short, the evidence here, evaluated in the context of the Clark and
Banks factors, supports a finding that Price acted with reckless indifference
to the grave risk her acts posed to Merrill’s life. Contrary to Price’s
arguments, this case is not akin to one in which a getaway driver or other
person involved in a limited way in an armed robbery has mere knowledge
that his confederates would be armed. This is a case in which the individual
who initiated the armed robbery actively acquired the gun, knew it was
loaded, brought it to the scene, participated in the robbery, pointed the gun at
the victim, and—if she did not shoot—gave the gun to the shooter, in effect
encouraging the shooting. As her after-the-crime texts to Fells indicate, Price
was more than willing to shoot, or aid Brown in shooting, Merrill; she was
willing to kill Merrill if she deemed it necessary to accomplish the robbery
and avoid detection, and she was completely indifferent to the grave risk she
created that he would end up losing his life. In short, her words and acts
reflected a “willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if [she did] not specifically desire that death as the outcome
of [her] actions.” (Clark, supra, 63 Cal.4th at p. 617.)
While Price is not as high on the culpability spectrum as the Tison
brothers, she is well beyond Enmund, Banks and Clark. We conclude the
jury’s special circumstance finding is supported by substantial evidence
meeting the culpability standard of Banks and Clark. We also conclude that
the finding bars Price’s petition for resentencing under section 1170.95
because she could be and was convicted of first degree murder under a theory
that remains valid after Senate Bill No. 1437 (2017-2018 Reg. Sess.), namely
43
felony murder with the elements set forth in section 189 as amended, which
are the same as the special circumstances found by the jury. 23
DISPOSITION
The decision of the Superior Court is affirmed.
23 Price points out that some of the murder instructions given in the
case permitted the jury to find her guilty of murder under a natural and
probable consequences theory, which is no longer permitted by the murder
statute. Price fails to explain how the instructions on these now invalid
theories could entitle her to resentencing. Since the jury necessarily found
all of the essential elements for first degree felony murder under the current
murder statute when it found the felony-murder special circumstance was
true, any error in instructions on other theories would not entitle her to
relief. (See Simmons, supra, 65 Cal.App.5th at p. 747 [“by finding the special
circumstance true, the jury made the requisite findings necessary to sustain
a felony-murder conviction under the amended law,” “rendering him
ineligible for resentencing as matter of law”], rev. gr.; cf. Gonzalez, supra,
5 Cal.5th at p. 200 [error in failing to give instructions on lesser included
offenses and related defenses was harmless where jury made special
circumstance finding, which “necessarily demonstrates the jury’s
determination that the defendant committed felony murder rather than a
lesser form of homicide”]; People v. Lewis, supra, 25 Cal.4th at p. 646 [“Error
in failing to instruct the jury on a lesser included offense is harmless when
the jury necessarily decides the factual questions posed by the omitted
instructions adversely to defendant under other properly given
instructions”].)
44
STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
People v. Price (A159439)
45
Trial Court:Contra Costa County Superior Court
Trial Judge: Hon. Charles B. Burch
Counsel:
Spolin Law, Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Donna M.
Provenzano, David H. Rose, Deputy Attorneys General, for Plaintiff and
Respondent.
46