The opinion
Filed 2/9/23 P. v. Hearn CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081651
Plaintiff and Respondent,
(Super. Ct. No. SC076841A)
v.
CHRISTOPHER JAMES HEARN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez,
Eric L. Christoffersen, Amanda D. Cary, and William K. Kim, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and Snauffer, J.
INTRODUCTION
In 1999, a jury convicted petitioner Christopher James Hearn of the first degree
murder of I.T. (Pen. Code,1 §§ 187, subd. (a), 189, count 1) with the special circumstance
petitioner committed the murder while engaged in the commission or attempted
commission of robbery (§ 190.2, subd. (a)(17)(A)).2 For this offense, the trial court
sentenced petitioner to a term of life without the possibility of parole. (People v. Hearn
(Feb. 4, 2002, F034832) [as modified Feb. 27, 2002] [opn. ordered nonpub. May 1, 2002,
S105347] (Hearn).)
In 2019, petitioner filed a petition for resentencing pursuant to section 1172.6
(former § 1170.95).3 The trial court initially found petitioner made a prima facie
showing pursuant to section 1172.6 and issued an order to show cause. However, after a
motion for reconsideration, the trial court denied the petition on the ground the special
circumstance finding made petitioner ineligible for resentencing as a matter of law.
On appeal, petitioner contends he established a prima facie case for entitlement of
relief because the special circumstance finding cannot establish his ineligibility for
resentencing as a matter of law because his conviction predates our Supreme Court’s
decisions in Banks/Clark,4 which clarified the meaning of “major participant” and
“reckless indifference to human life.”
1
Subsequent statutory references are to the Penal Code, unless otherwise
indicated.
2 Petitioner was convicted of additional offenses and enhancements, as described
below.
3
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with
no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the current section 1172.6
in this opinion.
4
People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63
Cal.4th 522 (Clark).
2.
While petitioner’s appeal was pending, our Supreme Court held a pre-Banks/Clark
special circumstance finding does not render a section 1172.6 petitioner ineligible for
relief as a matter of law. (People v. Strong (2022) 13 Cal.5th 698 (Strong).) Therefore,
based on Strong, we must vacate the trial court’s order and remand the matter for further
proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
We include the statement of facts from our prior opinion in petitioner’s direct
appeal in full:5
“On April 9, 1996, an off-duty sheriff’s deputy entered [a liquor
store] in Ridgecrest. He found the store’s clerk, [I.T.], lying on his back
behind the counter in a pool of blood. The deputy quickly left the store and
called 911.
“[I.T.] had sustained three gunshot wounds, two to the head and one
through his left arm. There were no powder burns, and the shots were fired
from a large caliber gun, such as a .40 caliber. Five .40 caliber expended
casings were found in the store and an additional casing was found on the
victim’s gurney. Police also found a glass pipe, lighter and colored ski
mask near some [D]umpsters behind the store.
“Between 8:30 p.m. and 8:50 p.m. on April 9, witness Brian H[.]
drove past the [liquor] store and three people ran in front of his car. They
were wearing dark clothing and their faces were covered. [Brian] thought
two of the people were male, between five feet, ten inches and six feet, two
inches, and one was a female, much shorter, with a ponytail. He thought
the person with a ponytail was carrying a backpack.
“Annette R.’s Statements and Trial Testimony
“Barstow police detective Frank Espinoza assisted the Ridgecrest
police with the murder investigation. On December 5, 1997, he telephoned
Annette R. (who was now living in Nevada) and asked her about the
robbery and murder. He knew Annette R. because she had previously lived
5 This court previously granted petitioner’s request for judicial notice of this
court’s prior opinion in petitioner’s direct appeal. We provide these facts because they
were relied on by the trial court. However, we do not rely on these facts in resolving the
issues presented in this appeal. (See § 1172.6, subd. (d)(3).)
3.
in Barstow and Detective Espinoza was familiar with her. He attempted to
tape record the conversation, but only successfully taped portions of
Annette R.’s initial statement to police. During the conversation Annette R.
stated that she, [Barbara] Chavez, [Jeanette] Serafin and [petitioner] went to
Ridgecrest to do a robbery. Serafin stayed in the car, and Chavez and
Annette R. got out of the car with [petitioner]. [Petitioner] went into the
store and there were gunshots, and [petitioner] shot the clerk in the head
with a .38 or .357 caliber gun. Annette R. stated that she had better not be
arrested or she would change her story and reveal nothing.
“Later that same day, Detective Espinoza taped another telephone
conversation with Annette R. Annette R. stated she was outside the store
when she first heard gun shots, and that she ran into the store and did not
see the victim but thought he got shot in the head.
“On December 10, 1997, Annette R. was interviewed by Ridgecrest
Detective Ortiz. She told Ortiz that she heard two different guns, and that
the clerk shot first and then [petitioner] shot. She believed the victim was
shot in the head, but everything was blurry. She stated that [petitioner] shot
because the clerk shot first, and that she later heard rumors that [petitioner]
said she was the shooter.
“At trial, Annette R. testified under a grant of immunity. On April 9,
1996, she was 15 years old and living in Barstow with Barbara Chavez.
Chavez and Chavez’s cousin Serafin returned to Chavez’s house and told
Annette they were going to ‘pull a liq,’ meaning a robbery. Annette R.
agreed to participate. Serafin drove them to Chavez’s cousin’s house, a
woman known to Annette R. as ‘Gina Dean,’ whose actual name was
Regina Eason. Chavez told Eason they needed a male to go with them to
do the robbery, and Eason suggested her brother, [petitioner], who was
across the street. Annette R. went across the street to get [petitioner].
[Petitioner] agreed to go with them to Ridgecrest for the robbery, and
Eason gave a gun to [petitioner] and a gun to Chavez. Annette R. was
angry she was not given a gun. Eason was to receive a portion of the
robbery loot in return.
“Serafin then drove Annette R., Chavez and [petitioner] to
Ridgecrest. Chavez and Annette R. did not want to commit a robbery in
Barstow because they had already been questioned about a previous
robbery there. They drank beer and smoked marijuana during the car ride
to Ridgecrest. Once in Ridgecrest, they stopped at Chavez’s sister
Dolores’s house. They then went to the home of an unidentified man who
suggested the [liquor store] as a robbery target. Chavez, Serafin, Annette
R. and [petitioner] left to drive by the store. They had two ski masks and
4.
were all wearing dark clothing. [Petitioner], who is about six feet tall, had
a ponytail.
“They drove back to Dolores’s house and waited there until after
dark. They then returned to the unidentified man’s house to plan the
robbery. Serafin was going to wait in the car by [a fast food restaurant]
across the street, [petitioner] would enter the store with a gun and Annette
R. and Chavez would enter the store after they had counted to three.
Annette R. or Chavez would then duct-tape the clerk. All four of them
participated in that conversation planning how the robbery would take
place.
“The four then went to the liquor store, and Serafin dropped them
off. The guns were in the backpack. [Petitioner] entered the store, and
Annette R. and Chavez waited outside. Annette R. heard gunshots almost
immediately. She ran into the store and saw [petitioner] shoot the clerk
more than twice. [Petitioner] said ‘Fuck you, Cuz,’ and was leaning across
the counter as he shot the clerk. [Petitioner] went around the counter and
fired more shots. He then ran out of the store and Chavez and Annette R.
ran with him back to Serafin’s car.
“They drove back to Dolores’s house, with [petitioner] and Annette
R. lying down in the back seat and Chavez sitting in the front seat.
[Petitioner] cried and said he did not mean to do it. They left Dolores’s
house and returned to Eason’s house in Barstow. Chavez and Annette R.
told Eason that the clerk had been shot, and [petitioner] said nothing but
continued to cry.
“Regina Eason’s Statements and Trial Testimony
“Eason is [petitioner]’s sister. At trial she denied supplying any
guns for the robbery and denied that [petitioner] and Chavez returned to her
house together April 9th. [Petitioner] was drunk and did not arrive with
Chavez, who arrived later. Eason did not recall Annette R. being at her
house. Eason asked if anyone was killed, and Chavez told her [petitioner]
had to shoot to protect them. Eason walked [petitioner] to his mother’s
residence, and then to his girlfriend April’s house. Eason asked [petitioner]
if he thought he had killed anyone and he said ‘No.’
“Eason was interviewed by Detective Ortiz on December 31, 1997,
and on February 24, 1998. Eason initially denied knowing anything, but
later admitted she had given a gun to Chavez. She said [petitioner] was
present when Chavez and the other girls asked him to participate in a
robbery. The group returned and [petitioner] had been drunk and
5.
hysterical. Annette R. told [petitioner] he had killed the clerk. Eason stated
she had difficulty understanding [petitioner] because he was so upset, but
she thought he had shot someone while defending Chavez and Annette R.
“In a second tape-recorded interview of Eason she denied many of
the statements she initially made. She stated that Chavez returned the gun
she had given her because it did not work, and she had heard nothing about
a robbery. She explained the change in her story by stating that she made
the earlier statements in an attempt to make her brother look better in case
he had done something wrong, but she did not know if any of it was the
truth.
“J[ea]nette Serafin’s Statements and Trial Testimony
“Serafin testified at trial under grant of immunity. Serafin testified
that on the day of the robbery Chavez asked her to give her a ride to
Ridgecrest. Chavez brought along Annette R. and a small Black man she
had never seen before, called ‘Tim.’ She was unsure if [petitioner] was the
person she believed was called ‘Tim.’ She dropped ‘Tim,’ Chavez and
Annette R. off in front of the liquor store, and they returned a short time
later upset. She did not recall what they talked about and did not recall
seeing a gun or bullets.
“A prior interview of Serafin taped on December 5, 1997, was
played for the jury. At that time Serafin stated that Annette R. and Chavez
called the man with them ‘Tim.’ Serafin dropped Chavez, Annette R. and
‘Tim’ off in front of the liquor store and then heard shots. Chavez ran to
Serafin’s car and told her to start it. Serafin did not see a gun, but heard the
three keep asking who shot first. Serafin described ‘Tim’ as about the same
height as Chavez (short) and very thin.
“Serafin was interviewed again on October 20, 1998. The interview
was also taped and played for the jury. At that time Serafin stated that
Chavez wanted to borrow money from someone in Ridgecrest named Chris
or Jay, and Annette R. came along for the ride. She did not know the name
of the Black male who also rode with them. She dropped the three off on a
corner where they left to go borrow the money. They told her to wait by
[the fast food restaurant] so they could get something to eat on their way
out of town. She waited 15 or 20 minutes, and heard three gunshots.
Chavez came running to her car and seemed hysterical. Chavez and the
male told her to drive. She never contacted the police because she was
scared.
6.
“Dolores Chavez’s Prior Statements and Testimony
“Dolores Chavez (Dolores), Barbara Chavez’s sister who is also
known as Nene, testified that she rode with Chavez, Annette R. and Serafin
to Ridgecrest. She said a male accompanied them that the other girls called
‘Chris,’ but she could not identify [petitioner] as that person. She said the
male was thin and had long hair. The group dropped her off at her
apartment and returned about 9:00 p.m., two hours later than they had said
they would return, and seemed in a rush. Chavez told her to hurry up.
“In a separate interview with detectives, Dolores gave a substantially
similar statement, and said Chavez told her ‘Chris’ and Annette R. had
done it. Dolores said any rumor that Chris had not entered the store was
false, but that Chavez had never entered the store.
“Other Testimony
“Evelyn R[.], a relative of Barbara and Dolores Chavez and
J[ea]nette Serafin, testified that she had a conversation with [petitioner]’s
brother Frederick H[.]. Detective Ortiz testified [Evelyn] said that
Frederick told her that [petitioner] told Frederick he was at the store the
night of the shooting and had a gun but ran out of the store when he saw a
gun, however, [Evelyn] denied the statement at trial. Frederick told
Detective Ortiz that the information he (Frederick) had given to [Evelyn] he
received from his and [petitioner’s] father. Frederick has a mental problem,
and sometimes hears voices.
“Defense Case
“[Petitioner]’s wife (then girlfriend) April and his mother both
testified that [petitioner] was never gone from his mother’s house for more
than an hour or so in the weeks surrounding April 9, because April was due
to have a baby. They testified [petitioner] never came home crying.
“Kenneth [H.] testified that before becoming imprisoned for a parole
violation he asked Annette R. to watch four guns for him which were stored
in a Nike bag. The bag also contained ski masks with holes cut out. When
[Kenneth] was released from prison in July 1996, Annette R. told him the
guns had been stolen. However, she later told him when she was drunk that
she did not mean to do it, it was an accident and she did not ‘mean to shoot
the ol’ boy.’
“Pamela [M.], a friend of Annette R.’s, testified that Annette told her
about having committed a robbery like in the movie ‘Menace to Society.’
7.
Annette R. said she and her ‘homey’ entered the store, she grabbed a ‘40
ounce’ then went up to the store counter and started firing the gun.
“The defense presented the testimony of a forensic analyst that there
was no evidence from the crime scene that the shots were fired from across
the counter.
“Yolanda [J.] testified at Eason’s trial that Annette R. had bragged
about being the shooter in an attempted robbery at a liquor store.
“Analyses of head hairs from a ski cap found outside the liquor store
ruled out [petitioner] as their source.” (Hearn, supra, F034832, fns.
omitted.)
On April 2, 1999, the Kern County District Attorney filed an information charging
petitioner with premeditated first degree murder (§§ 187, subd. (a), 189; count 1) with the
special circumstances that the offense was committed during the commission or
attempted commission of robbery (§ 190.2, subd. (a)(17)(A)) and burglary (§ 190.2,
subd. (a)(17)(G)), along with a firearm enhancement (§ 12022.5, subd. (a)); second
degree burglary (§§ 459, 460, subd. (b); count 2) with a firearm enhancement (§ 12022.5,
subd. (a)); attempted robbery (§§ 212.5, subd. (c), 664; count 3) with a firearm
enhancement (§ 12022.5, subd. (a)); and conspiracy to commit robbery (§§ 182, subd.
(a)(1), 212.5, subd. (c); count 4).
On December 16, 1999, a jury convicted petitioner of premeditated first degree
murder (§§ 187, subd. (a), 189; count 1) and found true the special circumstance that the
offense was committed during the commission or attempted commission of robbery
(§ 190.2, subd. (a)(17)(A)),6 but found not true the firearm enhancement (§ 12022.5,
6 The jury did not make a finding as to the special circumstance that the offense
was committed during the commission or attempted commission of burglary (§ 190.2,
subd. (a)(17)(G)), and the court determined it was not necessary for the jury to make a
finding as to that allegation in light of their inability to reach a verdict on count 2
(§§ 459, 460, subd. (b)). Therefore, we only address whether petitioner is ineligible for
section 1172.6 resentencing relief, as a matter of law, based on the jury’s true finding on
the robbery special circumstance allegation pursuant to section 190.2, subdivision
(a)(17)(A).
8.
subd. (a)). The jury was unable to reach a verdict on count 2; the court subsequently
declared a mistrial on that count and the charge was dismissed on motion by the district
attorney. The jury found petitioner guilty of count 3, but found not true the firearm
enhancement (§ 12022.5, subd. (a)). The jury found petitioner guilty of count 4 and
found true the overt acts that he planned a robbery and drove the other participants to
Ridgecrest. However, as to count 4, the jury found not true the overt acts that petitioner
obtained a gun from Regina Eason to use in the robbery and that he entered the liquor
store in Ridgecrest.
On January 19, 2000, the trial court sentenced petitioner on count 1 to a term of
life without the possibility of parole. As to count 3, the trial court sentenced petitioner to
the upper term of 30 months, but stayed the sentence pursuant to section 654. As to
count 4, the trial court sentenced petitioner to the upper term of five years, but stayed the
sentence pursuant to section 654. On appeal, this court affirmed the judgment. (Hearn,
supra, F034832.)
On July 18, 2019, petitioner, in propria persona, filed a petition for resentencing
pursuant to section 1172.6. In the form petition, petitioner stated a complaint,
information, or indictment was filed against him that allowed him to be prosecuted under
a theory of felony murder or murder under the natural and probable consequences
doctrine; he was convicted of first or second degree murder at trial; and he could not now
be convicted of first or second degree murder because of changes made to sections 188
and 189, effective January 1, 2019. He also requested the court appoint counsel during
the resentencing process and stated he was convicted of first degree murder and could not
now be convicted because he was not the actual killer; he did not, with the intent to kill,
aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the
commission of murder in the first degree; he was not a major participant in the felony or
did not act with reckless indifference to human life during the course of the crime or
9.
felony; and that the murder victim was not a peace officer acting in the performance of
his or her duties.
The court subsequently appointed counsel to represent petitioner.
In response, the district attorney filed a motion to dismiss the petition based on the
unconstitutionality of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill
No. 1437) and petitioner, through counsel, filed a reply arguing that the amended law was
constitutional. The trial court concluded Senate Bill No. 1437 is constitutional and
denied the motion to dismiss.
Subsequently, the district attorney filed a response to the petition on the merits,
arguing the special circumstance finding established the jury had found petitioner to be a
major participant who acted with reckless indifference to human life, rendering him
ineligible for resentencing. Petitioner filed a reply arguing he had made a prima facie
showing he is entitled to resentencing relief. Petitioner specifically argued our Supreme
Court’s holding in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, both
filed after the jury’s verdict, altered the standards for a “major participant” who acted
with “reckless indifference to human life,” and thus the special circumstance finding did
not establish facts necessary to uphold his conviction for purposes of Senate Bill
No. 1437. Petitioner subsequently filed a supplemental reply, expanding on his argument
that he was not a major participant who acted with reckless indifference to human life
under the standards announced under Banks and Clark.
On June 17, 2020, the trial court concluded that petitioner had made a prima facie
showing and issued an order to show cause. In light of the trial court’s finding, the
district attorney filed a motion for reconsideration based on newly published case law;
petitioner subsequently filed an opposition.
On August 21, 2020, the trial court granted the motion for reconsideration and
found that petitioner had not established a prima facie case pursuant to section 1172.6.
Specifically, the trial court reasoned:
10.
“In reviewing the most recent cases . . . the Court finds the Galvan[7]
case the more persuasive and better reasoned Opinion. And it’s also
significant that the Galvan Court distinguished and disagreed with the
rulings in the Torres[8] and Smith[9] cases and explaining why.
“And the Court finds the Galvan Opinion and the reasoning of that
Opinion more persuasive, explaining that if the issue about whether there’s
sufficient evidence to support the special circumstance findings, the way it
must be addressed now, in light of the change of the law after Banks[,
supra, 61 Cal.4th 788] and Clark[, supra, 63 Cal.4th 522], is that the
burden is on the defense in a habeas corpus proceeding to establish that
there is not sufficient evidence to support that special circumstance finding
in light of the new case law.
“And the Galvan Court -- and I agree with their reasoning -- states
that it would be inappropriate to shift the burden to the People to now have
to prove that beyond a reasonable doubt through the [1172.6] proceedings.
That would be inconsistent with the legislative intent, in looking at the
language of the statute.
“So I do find Galvan and Gomez[10]to be persuasive to reach a
tentative decision to grant the motion for reconsideration and find that
[petitioner] has not made a prima facie case as a matter of law.” (Italics
added.)
The trial court subsequently confirmed its tentative ruling, stating, “I do agree with the
reasoning and the Galvan Court that Section [1172.6] is not the proper vehicle to
challenge the special circumstance finding in this case and that the challenge would be
properly brought as a writ of habeas corpus.” The trial court further found petitioner
ineligible for resentencing as a matter of law, and that he had not met his burden to
7 People v. Galvan (2020) 52 Cal.App.5th 1134 (Galvan).
8People v. Torres (2020) 46 Cal.App.5th 1168, 1179, review granted June 24,
2020, S262011 (Torres), abrogated on another ground by People v. Lewis (2021) 11
Cal.5th 952, 962-963 (Lewis).
9
People v. Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020,
S262835 (Smith).
10
People v. Gomez (June 29, 2020, D076101) opinion ordered nonpublished
September 28, 2022, S264033 (Gomez).
11.
establish a prima facie case. Accordingly, the petition was denied. A timely appeal
followed. In a nonpublished opinion filed May 5, 2022, we affirmed the trial court’s
order denying resentencing. (People v. Hearn (May 5, 2022, F081651).)
On June 7, 2022, petitioner filed a petition for review arguing that a special
circumstance finding prior to Banks and Clark should not preclude resentencing relief as
a matter of law. On December 21, 2022, our Supreme Court granted review and
transferred the matter back to this court with instructions to vacate our May 5, 2022
opinion and reconsider in light of Strong. We vacated the prior opinion and issued an
order stating that because “[n]o further briefing having been received from the parties
within the time allowed, the case is submitted for decision.” Accordingly, as we discuss
further below, in light of Strong, the trial court’s order denying the section 1172.6
petition is reversed and the matter remanded for further proceedings.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “to amend
the felony murder rule and the natural and probable consequences doctrine . . . 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).) The bill
accomplished this task by adding three separate provisions to the Penal Code. (People v.
Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable
consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a
principal to act with malice aforethought before he or she may be convicted of murder.
(§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to amend the felony-
murder rule, the bill 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
12.
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.”11 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill added section 1172.6 (former § 1170.95) to provide a procedure for those
convicted of a qualifying offense “to seek relief under the two ameliorative provisions
above.” (Gentile, at p. 843.) This procedure is available to persons convicted of “felony
murder or murder under the natural and probable consequences doctrine or other theory
under which malice is imputed to a person based solely on that person’s participation in a
crime, attempted murder under the natural and probable consequences doctrine, or
manslaughter . . . .” (§ 1172.6, subd. (a).)
“Section [1172.6] lays out a process” for a person convicted of one of the
aforementioned offenses “to seek vacatur of his or her conviction and resentencing.”
(Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the
sentencing court averring that:
“(1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder,
murder under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the natural and
probable consequences doctrine[;]
“(2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted
murder[; and]
11Additionally, section 189 was amended to allow for felony-murder liability
where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672.)
13.
“(3) The petitioner could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective January 1,
2019.” (§ 1172.6, subd. (a)(1)-(3); see § 1172.6, subd. (b)(1)(A); accord,
Lewis, supra, 11 Cal.5th at pp. 959-960.)
Additionally, the petition shall state “[w]hether the petitioner requests the appointment of
counsel.” (§ 1172.6, subd. (b)(1)(C).)
If a petition fails to contain the required information and the information cannot be
“readily ascertained” by the court, the petition may be denied without prejudice to the
filing of another petition. (§ 1172.6, subd. (b)(2).) Otherwise, counsel must be
appointed, if requested. (§ 1172.6, subd. (b)(3).) The prosecutor must file a response and
the petitioner may file a reply. The trial court must then hold a hearing to determine if
the petitioner has made a prima facie showing that he or she is entitled to relief.
(§ 1172.6, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making
this determination, the court may rely on the record of conviction, which includes, but is
not limited to, jury instructions and verdict forms. (Lewis, at pp. 970-971, 972.)
However, the prima facie inquiry is limited and, at this stage of the proceedings, the court
“should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Id. at pp. 971-972.) “If the court declines to make an order to show cause,
it shall provide a statement fully setting forth its reasons for doing so.” (§ 1172.6,
subd. (c).)
On the other hand, if the court determines the petitioner has met his or her prima
facie burden, “the trial court must issue an order to show cause and hold a hearing to
determine whether to vacate the murder[, attempted murder, or manslaughter] conviction
and to resentence the petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at
p. 853; accord, § 1172.6, subds. (c), (d)(1).) At the hearing, the prosecution must “prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1172.6,
subd. (d)(3).) The prosecutor and the petitioner may offer new or additional evidence to
meet their respective burdens. The admission of evidence at the hearing is governed by
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the Evidence Code. However, the court also “may consider evidence previously admitted
at any prior hearing or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed,” as well as the “procedural
history of the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3).)
Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b)
of section 872 is inadmissible at the evidentiary hearing, unless made admissible by
another exception to the hearsay rule. (§ 1172.6, subd. (d)(3).)
II. Analysis
Petitioner contends the jury’s special circumstance finding cannot establish his
ineligibility for resentencing as a matter of law because his conviction predates our
Supreme Court’s decisions in Banks/Clark, which clarified the meaning of “major
participant” and “reckless indifference to human life.” Based on our Supreme Court’s
holding in Strong, we agree.
Prior to Strong, the Courts of Appeal were split on the question of whether a
special circumstance finding entered prior to Banks and Clark renders a petitioner
ineligible for section 1172.6 resentencing relief as a matter of law. Our Supreme Court
recently resolved this split and made clear that when, as here, a petitioner’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.” (Strong,
supra, 13 Cal.5th at p. 721.) “This is true even if the trial evidence would have been
sufficient to support the findings under Banks and Clark.” (Id. at p. 710.) The Strong
court noted the Banks and Clark cases “both substantially clarified the law governing
findings under . . . section 190.2, subdivision (d).” (Id. at p. 706.) Further, the court
articulated a pre-Banks and Clark special circumstance finding does not negate the
showing a petitioner could not presently be convicted of murder or attempted murder
because of changes to section 188 or 189 “because the finding alone does not establish
that the petitioner is in a class of defendants who would still be viewed as liable for
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murder under the current understanding of the major participant and reckless indifference
requirements.” (Strong, at p. 718.) Moreover, “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.” (Id. at
p. 714.)
Because of the differences between the pre- and post-Banks and Clark special
circumstance requirements, the Supreme Court stated the changes may “have altered
what evidence defense counsel would have sought to introduce[,] . . . might have
fundamentally altered trial strategies” (Strong, supra, 13 Cal.5th at p. 719), and may
have affected what jury instructions were requested or given (id. at p. 720). “An after-
the-fact court review of a pre-Banks and Clark record does not account for all these
differences. . . . 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.
[Citation.] Nor, then, is it a basis for denying a petitioner the opportunity to have an
evidentiary hearing in the first place.” (Ibid.) “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.’ ” (Id. at p. 718.) Thus, 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.” (Id. at
p. 720.)
Here, the jury found true the section 190.2, subdivision (a)(17)(A) special
circumstance before Banks and Clark were decided. Pursuant to Strong, this finding does
not preclude petitioner from stating a prima facie case for relief. (Strong, supra, 13
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Cal.5th at p. 721.) Moreover, a petitioner’s prima facie case is not barred even if the
evidence is sufficient to support the special circumstance post-Banks and Clark. (Id. at
p. 710; Lewis, supra, 11 Cal.5th at p. 972 [In reviewing the record at the prima facie
stage, “a trial court should not engage in ‘factfinding involving the weighing of evidence
or the exercise of discretion.’ ”].)
Petitioner’s section 1172.6 petition was facially sufficient and alleged the essential
facts necessary for relief under section 1172.6. Nothing in the record indicates petitioner
is ineligible for relief as a matter of law, and thus, we must remand the matter for the trial
court to issue an order to show cause, and, to the extent necessary, conduct an evidentiary
hearing. (§ 1172.6, subds. (c), (d)(1) & (3).) We express no opinion on the ultimate
resolution on the petition.
DISPOSITION
The trial court’s order denying petitioner’s section 1172.6 petition is reversed. On
remand, the trial court is directed to issue an order to show cause and, to the extent
necessary, hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).
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