People v. Strong ( 2022 )


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  •         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