People v. Strong

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER STRONG,

Defendant and Appellant.

S266606

Third Appellate District

C091162

Sacramento County Superior Court

11F06729

August 8, 2022

Justice Kruger authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,

Groban, Jenkins, and Guerrero concurred.

PEOPLE v. STRONG

S266606

Opinion of the Court by Kruger, J.

In Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate

Bill 1437), the Legislature significantly narrowed the scope of

the felony-murder rule. It also created a path to relief for

defendants who had previously been convicted of murder on a

felony-murder theory but who could not have been convicted

under the new law. Resentencing is available under the new

law if the defendant neither killed nor intended to kill and was

not “a major participant in the underlying felony [who] acted

with reckless indifference to human life, as described in

subdivision (d) of [Penal Code] Section 190.2.” (Pen. Code, § 189,

subd. (e)(3); see id., § 1172.6; Stats. 2018, ch. 1015, §§ 3–4;

Stats. 2022, ch. 58, § 10.) This provision repurposes preexisting

law governing felony-murder special-circumstance findings —

the findings a jury makes in felony-murder cases to determine

whether the defendant may be sentenced to death or life without

possibility of parole (Pen. Code, § 190.2, subd. (d)) — to define

eligibility for sentencing relief.

In this case, defendant Christopher Strong seeks

resentencing even though the jury that convicted him of felony

murder in 2014 also found true felony-murder special-

circumstance allegations that he was a “major participant” who

acted “with reckless indifference to human life” within the

meaning of Penal Code section 190.2, subdivision (d). He

contends that the jury’s findings should not preclude him from

making a prima facie showing of eligibility for relief because the

1

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

findings were made before this court’s decisions in People v.

Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)

63 Cal.4th 522 (Clark), which for the first time provided

substantial guidance on the meaning of the two relevant

statutory phrases. We agree. We reverse the contrary judgment

of the Court of Appeal and remand for further proceedings.

I.

In 2007, Strong and an accomplice attempted to rob a local

drug dealer in his home. During the robbery, the accomplice

fatally shot a friend of the drug dealer, Sean Aquitania, and

Aquitania’s infant son. In 2014, a jury convicted Strong of

various crimes, including two counts of first degree murder with

multiple-murder and felony-murder special circumstances.

(Pen. Code, §§ 187, 190.2, subd. (a)(3) [multiple murder], (17)(A)

[robbery felony murder], (17)(G) [burglary felony murder].) He

was sentenced to two terms of life without the possibility of

parole and an additional 36 years. After Senate Bill 1437 took

effect in 2019, Strong filed a petition for resentencing based on

relevant changes to felony-murder law.

We begin by describing the law that governed at the time

of Strong’s trial and the subsequent legal developments that

have given rise to the question before us.

A.

Under the felony-murder doctrine as it existed at the time

of Strong’s trial, “when the defendant or an accomplice kill[ed]

someone during the commission, or attempted commission, of an

inherently dangerous felony,” the defendant could be found

guilty of the crime of murder, without any showing of “an intent

to kill, or even implied malice, but merely an intent to commit

2

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

the underlying felony.” (People v. Gonzalez (2012) 54 Cal.4th

643, 654.) Murders occurring during certain violent or serious

felonies were of the first degree, while all others were of the

second degree. (Pen. Code, § 189, subds. (a), (b); Gonzalez, at

p. 654.)

Then, as now, a defendant convicted of first degree murder

could be punished by a sentence of death or life without

possibility of parole if the trier of fact found the murder’s

commission involved one of several statutorily defined special

circumstances. (Pen. Code, § 190.2.) These special

circumstances serve a constitutionally required role by

narrowing the class of individuals eligible for the death penalty

to those whose actions and mental state are sufficiently

egregious to potentially warrant that penalty. (People v.

Bacigalupo (1993) 6 Cal.4th 457, 467–468; see, e.g., Loving v.

United States (1996) 517 U.S. 748, 755.) The special

circumstance at issue here, the felony-murder special

circumstance, applies to certain murders committed in the

course of one of a dozen of the most serious felonies, including

robbery, rape, arson, carjacking, and first or second degree

burglary. (Pen. Code, § 190.2, subd. (a)(17).) Like the other

special circumstances, the felony-murder special circumstance

applies to defendants who actually killed (id., subd. (b)) or who

abetted a murder with the intent to kill (id., subd. (c)). But

unlike the other special circumstances, the felony-murder

special circumstance also applies to some convicted murderers

who neither killed nor intended to kill, namely, “major

participant[s]” in the underlying felony who acted “with reckless

indifference to human life.” (Id., subd. (d).)

3

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

This latter provision, extending felony-murder special-

circumstance liability to major participants, was added by voter

initiative in 1990. (Prop. 115, as approved by voters, Primary

Elec. (June 5, 1990) § 10; Banks, supra, 61 Cal.4th at p. 798.)

The major participant and reckless indifference phrases were

“derive[d] verbatim” from United States Supreme Court

precedent concerning the permissible scope of capital

punishment for felony murder. (People v. Estrada (1995) 11

Cal.4th 568, 575, citing Tison v. Arizona (1987) 481 U.S. 137

(Tison).) But for the next quarter century, neither the United

States Supreme Court nor California courts offered much

guidance about the major participant or reckless indifference

standards, except to indicate that neither phrase is used in a

specialized or technical sense in Penal Code section 190.2,

subdivision (d). (Banks, at p. 800; see Estrada, at pp. 574–578

[addressing court’s instructional duties concerning the reckless

indifference element]; People v. Proby (1998) 60 Cal.App.4th

922, 933 [addressing the major participant element].)

We first undertook to provide that guidance in Banks. The

specific issue concerned the meaning of the major participant

element: “[U]nder what circumstances an accomplice who lacks

the intent to kill may qualify as a major participant” for

purposes of the felony-murder special circumstance. (Banks,

supra, 61 Cal.4th at p. 794.) Because the language derived from

United States Supreme Court felony-murder precedent, we

looked to that case law for guideposts. The cases, which

delineated the limits on capital punishment for felony murder

under the Eighth Amendment of the federal Constitution,

“collectively place[d] conduct on a spectrum” of defendant

culpability, “with felony-murder participants eligible for death

4

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

only when their involvement [was] substantial and they

demonstrate[d] a reckless indifference to the grave risk of death

created by their actions.” (Banks, at p. 794; see id. at p. 800.)

Toward one end of the spectrum was the getaway driver the high

court found constitutionally ineligible for death in Enmund v.

Florida (1982) 458 U.S. 782, 797–801: a “ ‘minor actor in an

armed robbery, not on the scene, who neither intended to kill

nor was found to have had any culpable mental state.’ ” (Banks,

at p. 800.) Toward the other end of the spectrum were the

confederates found eligible for death in Tison, supra, 481 U.S.

137, who had broken convicted murderers out of jail, armed

them, captured an innocent family, “held [the family] at

gunpoint while the two murderers deliberated whether the

family should live or die, [and] then stood by while all four

members were shot.” (Banks, at p. 802.)

Examining the two high court decisions, Banks identified

a series of considerations to help guide the inquiry into “whether

a defendant’s culpability is sufficient to make him or her death

eligible” under the Eighth Amendment and, by extension, under

California statutory law incorporating the Eighth Amendment

standard. (Banks, supra, 61 Cal.4th at p. 803.) The

considerations, we said, “are these: What role did the defendant

have in planning the criminal enterprise that led to one or more

deaths? What role did the defendant have in supplying or using

lethal weapons? What awareness did the defendant have of

particular dangers posed by the nature of the crime, weapons

used, or past experience or conduct of the other participants?

Was the defendant present at the scene of the killing, in a

position to facilitate or prevent the actual murder, and did his

or her own actions or inaction play a particular role in the death?

5

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

What did the defendant do after lethal force was used?” (Ibid.,

fn. omitted.) We explained that none of these considerations is

dispositive. Rather, “[a]ll may be weighed in determining the

ultimate question, whether the defendant’s participation ‘in

criminal activities known to carry a grave risk of death’

[citation] was sufficiently significant to be considered ‘major’

[citations].” (Ibid.)

Although Banks focused primarily on the major

participant element, the decision also discussed the reckless

indifference element. Again citing the high court precedent’s

overarching concern with assessing individual culpability for

felony murder, we held that knowing participation in an armed

robbery, standing alone, is insufficient to establish a defendant’s

reckless indifference to human life. (Banks, supra, 61 Cal.4th

at pp. 807–811.) In so holding, we disapproved the contrary

decisions of several Courts of Appeal. (Id. at p. 809 & fn. 8.)

We returned to these issues the following year in Clark,

supra, 63 Cal.4th 522. We there reiterated the Banks standard

governing major participation. But the core of Clark’s holding

rested on the reckless indifference element. Once again looking

to high court precedent for guidance, we concluded that

“ ‘reckless indifference,’ . . . 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.” (Id. at p. 617.) Much as in Banks, we set out a

nonexhaustive list of considerations relevant to this

determination, including use of or awareness of the presence of

a weapon or weapons, physical presence at the scene and

opportunity to restrain confederates or aid victims, the duration

6

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

of the crime, knowledge of any threat the confederates might

represent, and efforts taken to minimize risks. (Id. at pp. 618–

623.) Because the major participant and reckless indifference

elements often “ ‘significantly overlap’ ” (id. at p. 615, quoting

Tison, supra, 481 U.S. at p. 153), this list of factors also

overlapped with those we had identified in connection with the

major participation inquiry in Banks.

Banks and Clark both substantially clarified the law

governing findings under Penal Code section 190.2, subdivision

(d): Banks elucidated what it means to be a major participant

and, to a lesser extent, what it means to act with reckless

indifference to human life, while Clark further refined the

reckless indifference inquiry. Before Senate Bill 1437, the effect

of these decisions was litigated largely in habeas corpus

proceedings challenging special circumstance findings made

before Banks and Clark. We considered one such challenge in

In re Scoggins (2020) 9 Cal.5th 667, which concerned a habeas

corpus petition filed by a defendant who had already

unsuccessfully challenged his felony-murder special

circumstance on direct appeal. Ordinarily, such a claim would

have been procedurally barred (see In re Waltreus (1965) 62

Cal.2d 218, 225), but an exception applied to claims where there

is no material dispute as to the facts of conviction and an

intervening clarification of the law reveals that the defendant’s

conduct was not prohibited by the statute. (Scoggins, at

pp. 673–674.) We held that Scoggins was entitled to relief

because, given the undisputed facts of his case, his conduct was

not within the scope of the felony-murder special-circumstance

statute as it had now been interpreted in Banks and Clark.

(Scoggins, at pp. 683–684.) A number of Courts of Appeal

7

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

reached similar conclusions in other cases, vacating felony-

murder special circumstances because the undisputed facts

established petitioners’ conduct did not satisfy the Banks and/or

Clark standards. (See, e.g., In re Taylor (2019) 34 Cal.App.5th

543, 546–547; In re Ramirez (2019) 32 Cal.App.5th 384, 404–

406; In re Bennett (2018) 26 Cal.App.5th 1002, 1007; In re Miller

(2017) 14 Cal.App.5th 960, 966–967.)

B.

In 2017, the Legislature adopted a concurrent resolution

declaring a need to reform the state’s homicide law “to more

equitably sentence offenders in accordance with their

involvement in the crime.” (Sen. Conc. Res. No. 48, Stats. 2017

(2017–2018 Reg. Sess.) res. ch. 175 (Resolution 48).) The next

year, the Legislature followed through with Senate Bill 1437,

which made significant changes to the scope of murder liability

for those who were neither the actual killers nor intended to kill

anyone, including certain individuals formerly subject to

punishment on a felony-murder theory. (See Stats. 2018,

ch. 1015, § 1, subd. (c) [measure intended to address need for

change identified in Resolution 48].)1

As relevant here, Senate Bill 1437 significantly limited the

scope of the felony-murder rule to effectuate the Legislature’s

declared intent “to ensure that murder liability is not imposed

on a person who is not the actual killer, did not act with the

1

In addition to the changes to the felony-murder rule at

issue in this case, Senate Bill 1437 eliminated second degree

murder liability predicated on the natural and probable

consequences doctrine. (Pen. Code, § 188, subd. (a)(3); see

People v. Gentile (2020) 10 Cal.5th 830, 842–843.)

8

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

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); see People v. Gentile, supra,

10 Cal.5th at p. 842.) Penal Code section 189, as amended, now

limits liability under a felony-murder theory principally to

“actual killer[s]” (Pen. Code, § 189, subd. (e)(1)) and those who,

“with the intent to kill,” aid or abet “the actual killer in the

commission of murder in the first degree” (id., subd. (e)(2)).

Defendants who were neither actual killers nor acted with the

intent to kill can be held liable for murder only if they were

“major participant[s] in the underlying felony and acted with

reckless indifference to human life, as described in subdivision

(d) of [Penal Code] Section 190.2” — that is, the statute defining

the felony-murder special circumstance. (Id., § 189, subd.

(e)(3).)

Senate Bill 1437 also created a special procedural

mechanism for those convicted under the former law to seek

retroactive relief under the law as amended. (See Pen. Code,

§ 1172.6 (section 1172.6); People v. Lewis (2021) 11 Cal.5th 952,

959–960; People v. Gentile, supra, 10 Cal.5th at p. 843.) 2 Under

newly enacted section 1172.6, the process begins with the filing

2

This provision was originally codified as Penal Code

section 1170.95 (section 1170.95). In the wake of our decision in

People v. Lewis, supra, 11 Cal.5th 952, the Legislature amended

section 1170.95 to adopt certain of Lewis’s holdings. (Stats.

2021, ch. 551, § 1, subd. (b).) The Legislature later renumbered

the provision without substantive change, effective June 30,

2022. (Stats. 2022, ch. 58, § 10.) Unless otherwise noted,

citations in this opinion are to the current version of the

provision as codified in section 1172.6.

9

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

of a petition containing a declaration that all requirements for

eligibility are met (id., subd. (b)(1)(A)), including that “[t]he

petitioner could not presently be convicted of murder or

attempted murder because of changes to [Penal Code] Section

188 or 189 made effective January 1, 2019,” the effective date of

Senate Bill 1437 (§ 1172.6, subd. (a)(3)).

When the trial court receives a petition containing the

necessary declaration and other required information, the court

must evaluate the petition “to determine whether the petitioner

has made a prima facie case for relief.” (§ 1172.6, subd. (c); see

People v. Lewis, supra, 11 Cal.5th 952 [interpreting the prima

facie requirement as originally codified in former § 1170.95].) If

the petition and record in the case establish conclusively that

the defendant is ineligible for relief, the trial court may dismiss

the petition. (See § 1172.6, subd. (c); Lewis, at pp. 970–972.) If,

instead, the defendant has made a prima facie showing of

entitlement to relief, “the court shall issue an order to show

cause.” (§ 1172.6, subd. (c).) If there has been “a prior finding

by a court or jury that the petitioner did not act with reckless

indifference to human life or was not a major participant in the

felony, the court shall vacate the petitioner’s conviction and

resentence the petitioner.” (Id., subd. (d)(2).) Additionally, the

parties may stipulate that the petitioner is eligible for

resentencing. (Ibid.) Otherwise, the court must hold an

evidentiary hearing at which the prosecution bears the burden

of proving, “beyond a reasonable doubt, that the petitioner is

guilty of murder or attempted murder” under state law as

amended by Senate Bill 1437. (§ 1172.6, subd. (d)(3).) “A

finding that there is substantial evidence to support a conviction

for murder, attempted murder, or manslaughter is insufficient

10

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

to prove, beyond a reasonable doubt, that the petitioner is

ineligible for resentencing.” (Ibid.) “If the prosecution fails to

sustain its burden of proof, the prior conviction, and any

allegations and enhancements attached to the conviction, shall

be vacated and the petitioner shall be resentenced on the

remaining charges.” (Ibid.)

C.

When Strong petitioned for resentencing under Senate

Bill 1437, he submitted a declaration attesting that under the

recent Penal Code amendments he could not now be convicted

of first or second degree murder. The People opposed the

petition, arguing that Strong could not make a prima facie

showing of eligibility for relief because his 2014 conviction for

special circumstance felony murder established that he was

either an actual killer, had directly aided and abetted murder

with the intent to kill, or was a major participant in the

underlying felony who acted with reckless indifference to human

life. (See Pen. Code, § 189, subd. (e).)

The trial court denied the petition. It agreed with the

People that the special circumstance finding, which had never

been overturned or vacated, meant that Strong could have been

convicted of murder even if Senate Bill 1437 had been in effect

at the time of trial.

The Court of Appeal affirmed. (People v. Strong (Dec. 18,

2020, C091162) [nonpub. opn.].) The court acknowledged a

burgeoning split among the appellate courts over whether pre-

Banks/Clark felony-murder special-circumstance findings, like

the findings in Strong’s case, bar resentencing. The court in this

case sided with a line of precedent that has held such findings

11

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

categorically preclude relief unless they have been vacated or

set aside on direct appeal or collateral review. (See, e.g., People

v. Gomez (2020) 52 Cal.App.5th 1, review granted Oct. 14, 2020,

S264033.) Other courts have concluded that pre-Banks and

Clark findings do not pose a categorical bar but may foreclose

relief if a court determines that sufficient evidence supports the

findings under the Banks and Clark standards. (See, e.g.,

People v. Secrease (2021) 63 Cal.App.5th 231, review granted

June 30, 2021, S268862.) And still other courts have concluded

that such findings pose no bar because the decisions in Banks

and Clark significantly changed the prevailing understanding of

the relevant elements. (See, e.g., People v. Torres (2020) 46

Cal.App.5th 1168, review granted June 24, 2020, S262011.)

We took review to resolve the split. We now conclude the

final group of courts is correct: Findings issued by a jury before

Banks and Clark do not preclude a defendant from making out

a prima facie case for relief under Senate Bill 1437. This is true

even if the trial evidence would have been sufficient to support

the findings under Banks and Clark.

II.

Although the Courts of Appeal have divided on the

question presented, their decisions reveal a bit of common

ground.

Senate Bill 1437 relief is unavailable if the defendant was

either the actual killer, acted with the intent to kill, or “was a

major participant in the underlying felony and acted with

reckless indifference to human life, as described in subdivision

(d) of [Penal Code] Section 190.2.” (Pen. Code, § 189,

subd. (e)(3); see § 1172.6, subd. (a).) The latter reference is to

12

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

the same statute, containing the same two elements, that this

court had clarified in Banks and Clark, shortly before Senate

Bill 1437 was enacted. (Compare Pen. Code, § 189, subd. (e)(3)

with id., § 190.2, subd. (d).) It is undisputed that when Senate

Bill 1437 amended Penal Code section 189 to incorporate major

participation and reckless indifference requirements, it codified

the understanding of those requirements elucidated in Banks

and Clark. (See People v. Price (2021) 71 Cal.App.5th 1128,

1150–1151 & fn. 16, review granted Feb. 9, 2022, S272572;

People v. Secrease, supra, 63 Cal.App.5th at p. 254, rev.gr.; cf.

Res. 48, supra, res. ch. 175, citing Banks.) It is also undisputed

that findings made after Banks and Clark ordinarily establish a

defendant’s ineligibility for resentencing under Senate Bill 1437

and thus preclude the defendant from making a prima facie case

for relief. If a jury has determined beyond a reasonable doubt

that a defendant was a major participant who acted with

reckless indifference to human life, as those phrases are now

understood and as the Legislature intended them to be

understood when incorporating them into Penal Code section

189, then that defendant necessarily could still be convicted of

murder under section 189 as amended. (See, e.g., People v.

Farfan (2021) 71 Cal.App.5th 942, 953–956; People v. Gutierrez-

Salazar (2019) 38 Cal.App.5th 411, 419.)

But do findings made before Banks and Clark have the

same effect? Here is where Courts of Appeal — and the

parties — have diverged. In the view of the Court of Appeal

below and the Attorney General, section 1172.6, properly

interpreted, categorically forecloses any argument for a

different result based on an intervening change in the law. We

13

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

are unpersuaded that section 1172.6 imposes such an absolute

bar.

A.

Courts finding a categorical bar, including the Court of

Appeal in this case, have reasoned that the plain language of

section 1172.6’s eligibility provision does not permit

resentencing of petitioners previously found to have been major

participants who acted with reckless indifference to human life,

regardless of any contention based on changes wrought by

Banks and Clark. (See, e.g., People v. Nunez (2020) 57

Cal.App.5th 78, 94–95, review granted Jan. 13, 2021, S265918;

People v. Jones (2020) 56 Cal.App.5th 474, 484, review granted

Jan. 27, 2021, S265854; People v. Murillo (2020) 54 Cal.App.5th

160, 168, review granted Nov. 18, 2020, S264978; People v.

Galvan (2020) 52 Cal.App.5th 1134, 1142, review granted Oct.

14, 2020, S264284, review dism. Apr. 13, 2022.) These courts

have relied on section 1172.6, subdivision (a)(3), which limits

eligibility for resentencing to those who “could not presently be

convicted of murder or attempted murder because of changes to

[Penal Code] Section 188 or 189 made effective January 1, 2019.”

(Italics added.) According to the leading case on this point, for

a petitioner with a pre-Banks/Clark true felony-murder special

circumstance, “the alleged inability to obtain such a conviction

is not ‘because of changes’ made by Senate Bill No. 1437, but

because of the clarification of the requirements for the special

circumstance finding in Banks and Clark. Nothing about those

requirements changed as a result of Senate Bill No. 1437. Just

as was the case before that law went into effect, the special

circumstance applies to defendants who were major participants

14

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

in an underlying felony and acted with reckless indifference to

human life.” (Galvan, at p. 1142.)

This reasoning does not withstand scrutiny. It ignores

that, for any petitioner with pre-Banks/Clark felony-murder

special-circumstance findings, “the alleged inability to obtain

such a conviction” (People v. Galvan, supra, 52 Cal.App.5th at

p. 1142) depends in the first instance on the changes in murder

liability for which Senate Bill 1437 is responsible. To see the

point, consider a defendant who is convicted of murder with a

felony-murder special circumstance before Banks and Clark, but

for whom the evidence would not have been sufficient under the

Banks and Clark clarifications of the standards. After Banks

and Clark, but before the 2019 changes to Penal Code section

189, the defendant certainly could have sought habeas corpus

relief to vacate the special circumstance. (See In re Scoggins,

supra, 9 Cal.5th at pp. 673–676.) But the defendant could not

have sought relief from the underlying murder conviction, since

nothing about Banks or Clark affected that portion of the

verdict. Those decisions clarified the line between special

circumstance murder liability and ordinary murder liability;

they did not alter or otherwise affect the boundary conditions for

murder liability itself. Only after the Legislature amended

section 189 would the defendant have had an argument for

ineligibility for murder. In other words, it is indeed “because of

changes to” section 189 made by Senate Bill 1437 that the

defendant could not today be convicted of murder. (§ 1172.6,

subd. (a)(3); see People v. Gonzalez (2021) 65 Cal.App.5th 420,

431, review granted Aug. 18, 2021, S269792; People v. Harris

(2021) 60 Cal.App.5th 939, 956–957, review granted Apr. 28,

15

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

2021, S267802; People v. York (2020) 54 Cal.App.5th 250, 261,

review granted Nov. 18, 2020, S264954.)

It is of course true that this hypothetical defendant’s claim

for resentencing also depends, in a “but for” sense, on Banks and

Clark; if those decisions had not clarified the law regarding the

relevant elements, the defendant would have no argument for

relief under Senate Bill 1437. But those changes matter for

resentencing purposes only because the Legislature chose to

write the same elements into its revised definition of murder.

And section 1172.6, subdivision (a)(3)’s “because of” language

does not require a showing that a claim to relief under Senate

Bill 1437 arises from no other cause — only that the 2019

changes supply a basis for the claim and so are a cause. For

defendants like Strong, they are.

B.

The Attorney General makes a different argument in

defense of the Court of Appeal’s categorical approach. Invoking

the reasoning of several Courts of Appeal, the Attorney General

contends that resentencing under Senate Bill 1437 is

categorically unavailable to a defendant with a prior felony-

murder special-circumstance finding because a section 1172.6

petition is not the proper vehicle for setting the finding aside;

such findings may be set aside only on direct appeal or through

a habeas corpus petition. (See People v. Nunez, supra, 57

Cal.App.5th at pp. 95–96, rev.gr.; People v. Jones, supra, 56

Cal.App.5th at p. 483, rev.gr.; People v. Gomez, supra, 52

Cal.App.5th at p. 17, rev.gr.)

The Attorney General relies for this argument on a

provision of section 1172.6 that expressly preserves other

16

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

avenues of relief: “This section does not diminish or abrogate

any rights or remedies otherwise available to the petitioner.”

(§ 1172.6, subd. (f).) He also notes that another provision of the

statute expressly addresses the effect of prior findings that are

favorable to the defendant: “If there was a prior finding by a

court or jury that the petitioner did not act with reckless

indifference to human life or was not a major participant in the

felony, the court shall vacate the petitioner’s conviction and

resentence the petitioner.” (Id., subd. (d)(2).) On its face, this

provision applies most naturally to situations in which a

defendant was charged with a felony-murder special

circumstance and the trier of fact found the circumstance not

true (see, e.g., People v. Clayton (2021) 66 Cal.App.5th 145, 154–

157), but some Courts of Appeal have held it also applies in

situations where the defendant has obtained habeas corpus

relief from the special circumstance finding (see, e.g., People v.

Ramirez (2020) 41 Cal.App.5th 923, 926–927, 932–933).

Assuming the provision applies in such situations, the Attorney

General argues this incentive for defendants to set aside prior

findings before filing a section 1172.6 petition indicates that the

Legislature intended to require them to do so.

We agree with the Attorney General that a defendant may

still challenge prior adverse special circumstance findings in

other types of proceedings, just as the defendant could have

before section 1172.6 was enacted. But nothing in section

1172.6 says that a defendant must always do so before seeking

resentencing. Nor can we imply such an exhaustion

requirement from either of the provisions on which the Attorney

General relies, neither of which has any direct bearing on the

issue before us. (See People v. Secrease, supra, 63 Cal.App.5th

17

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

at p. 256, rev.gr. [former § 1170.95, subd. (f) implies

resentencing remedy is cumulative to habeas corpus remedy];

People v. York, supra, 54 Cal.App.5th at p. 264, rev.gr. (conc.

opn. of Baker, Acting P. J.) [nothing in the text of former

§ 1170.95 “compels the conclusion that a habeas corpus petition

must precede the filing of a [former] section 1170.95 petition in

a special circumstance case”].)

The Attorney General also observes that the findings

accompanying enactment of Senate Bill 1437 evince a concern

with inequities in the existing law of murder and a desire to

correct the law “to more equitably sentence offenders in

accordance with their involvement in homicides” (Stats. 2018,

ch. 1015, § 1, subd. (b)), while nothing in those findings or any

of the various committee reports on the measure reflect any

similar concern with correcting errors in past factfinding.

True, but what does it matter? Petitioners in Strong’s

position are not seeking correction of an erroneous special

circumstance finding. (See People v. York, supra, 54

Cal.App.5th at p. 260, rev.gr. [“[t]he fact that the special

circumstance finding will be vacated as a result of a successful

challenge to the murder conviction does not mean the special

circumstance itself was challenged in the [former] section

1170.95 proceeding”].) They are, instead, seeking prospective

relief from a murder conviction that was presumptively valid at

the time, invoking the Legislature’s later conclusion that some

such convictions do not reflect sufficient individual culpability

to warrant punishment for murder, with the determination of

the conviction’s validity to be judged by standards clarified in

Banks and Clark. Their arguments may lack merit, and a trial

18

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

court may ultimately determine that resentencing is

unavailable. But there is nothing in section 1172.6 to indicate

that such arguments may be made only after a petitioner has

had the prior special circumstance findings set aside in a

separate habeas corpus or other proceeding.

III.

While the Attorney General argues that the text of section

1172.6 categorically precludes relitigation of major participant

and reckless indifference findings, amicus curiae the Office of

the State Public Defender (OSPD) invokes the statutory text in

support of the opposite position: that the Legislature did not

intend for any type of prior Penal Code section 190.2 finding to

be treated as conclusive in resentencing proceedings. We reject

the argument. While the text does not support the Attorney

General’s categorical rule foreclosing reexamination of all

special circumstance findings, it does not support a rule

categorically throwing all such findings open to relitigation,

either.

OSPD’s argument relies on section 1172.6, subdivision

(d)(2), discussed above, which says that in the event of a prior

special circumstance finding favorable to the defendant, the

court should skip straight to resentencing, without first holding

an evidentiary hearing. (§ 1172.6, subd. (d)(2).) Of course,

subdivision (d)(2) says nothing about the conclusive effects of

prior findings adverse to the defendant. But OSPD reasons that

because (1) the Legislature expressly provided that a favorable

finding would be conclusive, but (2) did not provide the same for

adverse findings, (3) it must have intended adverse findings to

have no effect on resentencing.

19

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

We are unpersuaded. This is not a case like Gikas v. Zolin

(1993) 6 Cal.4th 841, in which the statutory scheme made clear

that the Legislature had comprehensively considered the

potential uses of certain findings in later, related proceedings.

(Id. at pp. 851–852.) Section 1172.6 addresses only the effect of

one specific pair of findings at one specific stage of the

proceedings, after a prima facie case has already been found; it

does not address what effect any other types of prior jury

findings should (or should not) have, nor does anything address

what effect prior findings should have at other stages of the

proceedings (such as determining whether a prima facie case

has been made in the first place). (See People v. Price, supra, 71

Cal.App.5th at p. 1152, rev.gr. [former § 1170.95, subd. (d)(2)

does not support inference that Legislature intended petitioners

to be able to freely relitigate all other findings]; People v. Allison

(2020) 55 Cal.App.5th 449, 460 [“The Legislature could not and

did not need to spell out every ground for denying a petition”].)

In any event, OSPD’s argument proves too much. The

argument is not limited to findings rendered before Banks and

Clark; if accepted, it would mean that even adverse findings

rendered after Banks and Clark would have no effect in a

subsequent resentencing proceeding — even though every

appellate court to consider the issue, and both parties here,

agree that post-Banks and Clark findings ordinarily do foreclose

section 1172.6 resentencing. Nor is it clear that the argument

is limited to felony-murder special-circumstance findings. If

subdivision (d)(2) raises an inference that such findings are open

to reexamination and relitigation in a section 1172.6 proceeding,

it is unclear why it does not raise a similar inference for every

other finding that might ordinarily be dispositive, such as a

20

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

special circumstance finding that requires proof of intent to kill.

(See, e.g., Pen. Code, § 190.2, subd. (a)(1), (7)–(13), (15)–(16),

(18)–(21).) But as Strong himself acknowledges, the structure

of the statute — which permits trial courts to consult the record

of conviction to determine whether the defendant has made out

a prima facie case of eligibility (People v. Lewis, supra, 11

Cal.5th at pp. 970–971), and which notably does not open

resentencing to every previously convicted murder defendant —

strongly suggests the Legislature contemplated that many, and

perhaps most, such findings would be given effect on

resentencing. Had the Legislature intended to permit wholesale

relitigation of findings supporting murder convictions in the

context of section 1172.6 resentencing, we expect it would have

said so more plainly. (See Whitman v. American Trucking

Assns., Inc. (2001) 531 U.S. 457, 468 [under the no-elephants-in-

mouseholes canon, we infer legislatures do not hide profound

changes in ancillary provisions]; accord, Mendoza v. Fonseca

McElroy Grinding Co., Inc. (2021) 11 Cal.5th 1118, 1135.)

IV.

A.

Because the text of section 1172.6 does not speak in any

direct way to the issue before us, we turn to background

principles for guidance. In general, whether a prior finding will

be given conclusive effect in a later proceeding is governed by

the doctrine of issue preclusion, also known as collateral

estoppel. (Samara v. Matar (2018) 5 Cal.5th 322, 327; DKN

Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) This

common law doctrine is “grounded on the premise that ‘once an

issue has been resolved in a prior proceeding, there is no further

21

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

factfinding function to be performed.’ ” (Murray v. Alaska

Airlines, Inc. (2010) 50 Cal.4th 860, 864.) The doctrine “ ‘has the

dual purpose of protecting litigants from the burden of

relitigating an identical issue with the same party or his privy

and of promoting judicial economy by preventing needless

litigation.’ ” (Ibid.) It applies in criminal as well as civil

proceedings. (See, e.g., Ashe v. Swenson (1970) 397 U.S. 436,

443–444; Lucido v. Superior Court (1990) 51 Cal.3d 335, 341–

351.)

As traditionally understood and applied, issue preclusion

bars relitigation of issues earlier decided “only if several

threshold requirements are fulfilled. First, the issue sought to

be precluded from relitigation must be identical to that decided

in a former proceeding. Second, this issue must have been

actually litigated in the former proceeding. Third, it must have

been necessarily decided in the former proceeding. Fourth, the

decision in the former proceeding must be final and on the

merits. Finally, the party against whom preclusion is sought

must be the same as, or in privity with, the party to the former

proceeding.” (Lucido v. Superior Court, supra, 51 Cal.3d at

p. 341.) And while these threshold requirements are necessary,

they are not always sufficient: “Even if the[] threshold

requirements are satisfied, the doctrine will not be applied if

such application would not serve its underlying fundamental

principles” of promoting efficiency while ensuring fairness to the

parties. (Gikas v. Zolin, supra, 6 Cal.4th at p. 849; see also, e.g.,

Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 835

[“collateral estoppel will apply in any setting only where such

application comports with fairness and sound public policy”].) It

is the burden of the party seeking to prevent relitigation based

22

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

on prior findings to raise the defense and establish its elements.

(Lucido, at p. 341.)

The Attorney General’s argument that prior special

circumstance findings always foreclose relief in section 1172.6

proceedings is, in effect, an argument that such findings are

always preclusive. Although nothing in the statute says so

expressly, we agree that such findings can have preclusive

effect. After all, ordinarily “courts may take it as given that [a

legislature] has legislated with an expectation that the principle

[of issue preclusion] will apply . . . .” (Astoria Federal S. & L.

Assn. v. Solimino (1991) 501 U.S. 104, 108.) But it does not

follow that special circumstance findings always have preclusive

effect, regardless of whether they were issued before or after

Banks and Clark.

Even when the threshold requirements for issue

preclusion are met, one well-settled equitable exception to the

general rule holds that preclusion does not apply when there has

been a significant change in the law since the factual findings

were rendered that warrants reexamination of the issue. (See,

e.g., Rest.2d Judgments, § 28, subd. (2) [a prior finding is not

preclusive when “a new determination is warranted in order to

take account of an intervening change in the applicable legal

context or otherwise to avoid inequitable administration of the

laws”].) As the high court explained more than a half century

ago: “[A] judicial declaration intervening between the two

proceedings may so change the legal atmosphere as to render

the rule of collateral estoppel inapplicable.” (Commissioner v.

Sunnen (1948) 333 U.S. 591, 600; see Montana v. United States

(1979) 440 U.S. 147, 155, 161–162.) The Courts of Appeal in this

23

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

state have likewise long recognized that changes in the law may

supply a basis for denying a prior determination preclusive

effect. (People v. Ruiz (2020) 49 Cal.App.5th 1061, 1069; Ronald

F. v. State Dept. of Developmental Services (2017) 8 Cal.App.5th

84, 93; Huber v. Jackson (2009) 175 Cal.App.4th 663, 678;

United States Golf Assn. v. Arroyo Software Corp. (1999) 69

Cal.App.4th 607, 616; Powers v. Floersheim (1967) 256

Cal.App.2d 223, 230.)

This exception ensures basic fairness by allowing for

relitigation where “the change in the law [is] such that

preclusion would result in a manifestly inequitable

administration of the laws.” (Rest.2d Judgments, § 28, com. c,

pp. 276–277.) It also reflects a recognition that in the face of

this sort of legal change, the equitable policies that underlie the

doctrine of issue preclusion — “preservation of the integrity of

the judicial system, promotion of judicial economy, and

protection of litigants from harassment by vexatious litigation”

(Lucido v. Superior Court, supra, 51 Cal.3d at p. 343) — are at

an ebb. The integrity of the judicial system may be compromised

by inconsistent determinations — but so might it be

compromised by fastidiously insisting on identical

determinations even when a material change in the governing

law calls for a different outcome in a second proceeding.

Concerns about judicial economy and vexatious litigation

likewise have little purchase when there has been a significant

change in the law that applies to determination of the relevant

issue.

Banks and Clark represent the sort of significant change

that has traditionally been thought to warrant reexamination of

24

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

an earlier-litigated issue. Our earlier discussion of habeas

corpus petitioners who have obtained relief from their felony-

murder special circumstances in the wake of Banks and Clark

(ante at pp. 7–8) does much to explain why: There are many

petitioners with pre-Banks and Clark felony-murder special-

circumstance findings who nevertheless could not be convicted

of murder today. Senate Bill 1437 requires petitioners seeking

resentencing to make out a prima facie case that they “could not

presently be convicted of murder or attempted murder because

of changes to [Penal Code] Section 188 or 189 made effective

January 1, 2019.” (§ 1172.6, subd. (a)(3).) A pre-Banks and

Clark special circumstance finding does not negate that showing

because the finding alone does not establish that the petitioner

is in a class of defendants who would still be viewed as liable for

murder under the current understanding of the major

participant and reckless indifference requirements. (People v.

Wilson (2021) 69 Cal.App.5th 665, 685, review granted Dec. 22,

2021, S271604; People v. Torres, supra, 46 Cal.App.5th at

pp. 1179–1180, rev.gr.)

Some Courts of Appeal have cited countervailing fairness

considerations in support of adopting a categorical bar against

resentencing for petitioners with pre-Banks and Clark felony-

murder special-circumstance findings. These courts have raised

concerns that nothing in the text or history of section 1172.6

indicates the Legislature intended different treatment for two

similarly situated groups, those with pre- and those with post-

Banks/Clark findings. (See People v. Nunez, supra, 57

Cal.App.5th at p. 97, rev.gr.; People v. Allison, supra, 55

Cal.App.5th at p. 459; People v. Galvan, supra, 52 Cal.App.5th

at p. 1143.) We are unmoved, since the two groups are not

25

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

similarly situated: One has been determined, beyond a

reasonable doubt, to have acted as a major participant with

reckless indifference to human life as those terms are now

understood under Banks and Clark, and the other has never

been the subject of such a determination.

Nor are we moved by any concern that allowing

relitigation in some circumstances would unfairly require the

prosecution to prove major participation and reckless

indifference beyond a reasonable doubt for a second time. (See,

e.g., People v. Nunez, supra, 57 Cal.App.5th at p. 96, rev.gr.;

People v. Jones, supra, 56 Cal.App.5th at p. 485, rev.gr.; People

v. Gomez, supra, 52 Cal.App.5th at p. 17, rev.gr.) For petitioners

with pre-Banks/Clark findings, no judge or jury has ever found

the currently required degree of culpability for a first time.

Allowing reexamination of the issue under these circumstances

does not permit “a second bite of the apple” because the changes

in the law mean there is now “a different apple.” (People v. Ruiz,

supra, 49 Cal.App.5th at p. 1069, italics omitted.) 3

B.

The Attorney General argues that if we conclude that

section 1172.6 does not categorically bar reexamination of prior

major participation and reckless indifference findings in light of

Banks and Clark, the reexamination should be limited. He

points to a line of appellate cases that have concluded that pre-

Banks and Clark findings do not pose a categorical bar to

3

We disapprove People v. Galvan, supra, 52 Cal.App.5th

1134 and People v. Allison, supra, 55 Cal.App.5th 449 to the

extent they are inconsistent with the views expressed in this

opinion.

26

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

resentencing but have proposed that a court may reject a

petition at the prima facie stage if it independently examines

the record and determines, applying the Banks and Clark

standards, that sufficient evidence supports the earlier findings.

(See, e.g., People v. Wilson, supra, 69 Cal.App.5th at pp. 685–

686, rev.gr.; People v. Pineda (2021) 66 Cal.App.5th 792, 801,

review granted Sept. 29, 2021, S270513; People v. Secrease,

supra, 63 Cal.App.5th at p. 236, rev.gr.)

According to the leading decision in this line, the main

obstacle to granting conclusive effect to pre-Banks and Clark

findings does not lie in the different standards under which

those findings were made by the trier of fact; the standard jury

instruction has not in fact changed in the wake of Banks and

Clark.4 (People v. Secrease, supra, 63 Cal.App.5th at p. 256,

rev.gr.) Rather, the “heart of the problem” is that pre-

Banks/Clark findings, unlike post-Banks/Clark findings, have

never been subjected to judicial scrutiny under the correct

standards. (Ibid.) This omission, they reason, can be cured by

a court conducting such a review at the prima facie stage of a

section 1172.6 proceeding. (Secrease, at pp. 259–261.)

4

The jury instruction on the special circumstance,

CALCRIM No. 703, was not amended after Banks and Clark to

require instruction on the factors discussed. Instead, these

factors were included in brackets as optional additions for the

trial court to consider giving in its discretion. (See CALCRIM

No. 703 (2021); Judicial Council of Cal., Crim. Jury Instns.

(2021), Bench Notes to CALCRIM No. 703, pp. 419–420; People

v. Secrease, supra, 63 Cal.App.5th at p. 252, fn. 12, rev.gr.;

People v. Allison, supra, 55 Cal.App.5th at p. 458; People v. Price

(2017) 8 Cal.App.5th 409, 449–451.)

27

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

The difficulty with this approach is that the differences

between pre- and post-Banks and Clark findings are much

greater than this line of cases acknowledges — greater, too, than

their proposed remedy can adequately address. Although the

mandatory instructions did not change in the wake of Banks and

Clark, much else about the trial environment did. For one, the

arguments available to counsel changed significantly after this

court offered a range of guiding factors and made clear that

simple participation in, e.g., a “garden-variety armed robbery”

was not sufficient, without more, to establish the truth of the

felony-murder special circumstance. (See Banks, supra, 61

Cal.4th at p. 802.) The newly articulated guiding factors might

also have altered what evidence defense counsel would have

sought to introduce. And more broadly, the clarifications Banks

and Clark offered about the height of the bar needed to prove a

felony-murder special-circumstance finding might have

fundamentally altered trial strategies, causing some defendants

to focus on proving they were guilty at most of a noncapital

homicide once Banks and Clark created more daylight between

the proof required to convict of murder and the proof required to

convict of special circumstance murder. As for instructions,

after Banks and Clark, defense counsel could have asked that

optional additional instruction on the Banks and Clark factors

be given to guide the jury in its deliberations (see ante, fn. 4),

with the possibility that different outcomes might have resulted.

An after-the-fact court review of a pre-Banks and Clark

record does not account for all these differences. The prior

findings were made to a beyond-a-reasonable-doubt degree of

certainty, but under outdated legal standards. The Attorney

General’s proposed review would apply the correct legal

28

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

standards, but would not involve a determination beyond a

reasonable doubt that they were met. Indeed, it could not; such

a determination would entail factfinding prohibited at the prima

facie stage. (See People v. Lewis, supra, 11 Cal.5th at p. 972.)

And as the Legislature has made explicit in a recent amendment

to the predecessor to section 1172.6, a court determination that

substantial evidence supports a homicide conviction is not a

basis for denying resentencing after an evidentiary hearing.

(Former § 1170.95, subd. (d)(3), as amended by Stats. 2021, ch.

551, § 2 [“A finding that there is substantial evidence to support

a conviction for murder, attempted murder, or manslaughter is

insufficient to prove, beyond a reasonable doubt, that the

petitioner is ineligible for resentencing”].) Nor, then, is it a basis

for denying a petitioner the opportunity to have an evidentiary

hearing in the first place.5

Section 1172.6 offers resentencing for petitioners who

have not been determined beyond a reasonable doubt to have

the degree of culpability now required for a murder, attempted

5

In his briefing and at oral argument, the Attorney General

argued that on direct appeal and in habeas corpus proceedings,

defendants raising challenges under Banks and Clark to special

circumstance findings have been afforded review for sufficiency

of the evidence (see, e.g., People v. Williams (2015) 61 Cal.4th

1244, 1280–1282; In re McDowell (2020) 55 Cal.App.5th 999,

1011–1015) and so a similar level of review ought to be enough

to determine whether resentencing is foreclosed in a section

1172.6 proceeding. The Legislature’s recent amendments to the

statute make clear, however, if previously there was doubt, that

section 1172.6 relief is not necessarily confined to those who

might have been able to obtain relief through sufficiency-of-the-

evidence claims raised on direct appeal or through functionally

similar claims raised on habeas corpus.

29

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

murder, or manslaughter conviction. Neither the jury’s pre-

Banks and Clark findings nor a court’s later sufficiency of the

evidence review amounts to the determination section 1172.6

requires, and neither set of findings supplies a basis to reject an

otherwise adequate prima facie showing and deny issuance of

an order to show cause.

V.

We turn, finally, to the application of these principles in

this case.

Here, a 2014 jury found beyond a reasonable doubt that

Strong acted as a major participant with reckless indifference to

human life.

In 2015, Banks substantially clarified the law surrounding

major participant findings. (Banks, supra, 61 Cal.4th at

pp. 797–804.) A year later, Clark recited the teachings of Banks

on the major participant question and then substantially

clarified the relevant considerations for determining whether a

defendant has acted with reckless indifference to human life.

(Clark, supra, 63 Cal.4th at pp. 611–623.) For reasons we have

explained, unless a defendant was tried after Banks was

decided, a major participant finding will not defeat an otherwise

valid prima facie case. And unless a defendant was tried after

Clark was decided, a reckless indifference to human life finding

will not defeat an otherwise valid prima facie case.

Because Strong’s case was tried before both Banks and

Clark, the special circumstance findings do not preclude him

from making out a prima facie case for resentencing under

section 1172.6. The trial court and Court of Appeal erred in

concluding otherwise.

30

PEOPLE v. STRONG

Opinion of the Court by Kruger, J.

VI.

We reverse the judgment of the Court of Appeal and

remand for further proceedings not inconsistent with this

opinion.

KRUGER, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

GROBAN, J.

JENKINS, J.

GUERRERO, J.

31

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Strong

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published)

Review Granted (unpublished) XX NP opn. filed 12/18/20 – 3d Dist.

Rehearing Granted

__________________________________________________________

Opinion No. S266606

Date Filed: August 8, 2022

__________________________________________________________

Court: Superior

County: Sacramento

Judge: Patrick Marlette

__________________________________________________________

Counsel:

Deborah L. Hawkins, under appointment by the Supreme Court, for

Defendant and Appellant.

Jonathan E. Demson as Amicus Curiae on behalf of Defendant and

Appellant.

Michelle May Peterson for Santa Clara County Independent Defense

Counsel Office as Amicus Curiae on behalf of Defendant and

Appellant.

Mary K. McComb, State Public Defender, and AJ Kutchins, Deputy

State Public Defender, as Amicus Curiae on behalf of Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Michael P. Farrell, Assistant Attorney General,

Daniel B. Bernstein, Rachelle A. Newcomb and Eric L. Christoffersen,

Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Deborah L. Hawkins

Attorney at Law

1637 East Valley Parkway, PMB 135

Escondido, CA 92027

(760) 294-2181

Eric L. Christoffersen

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 95821

(916) 210-7686

AJ Kutchins

Deputy State Public Defender

1111 Broadway, Suite 1000

Oakland, CA 94607

(510) 267-3300