People v. Estrada CA2/4 ( 2022 )

Filed 5/17/22 P. v. Estrada CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B312352
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA076269)
v.
ERICA MICHELLE ESTRADA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Scott T. Millington, Judge. Reversed
and remanded with directions.
Law Office of Stein and Markus, Andrew M. Stein and
Joseph A. Markus; Brentford Ferreira Attorney at Law and
Brentford Ferreira, for Defendant and Appellant.
Rob Bonta, Acting Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Noah P. Hill and
Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff
and Respondent.
__________________________________________
INTRODUCTION
Appellant Erica Michelle Estrada appeals from the
trial court’s denial of her petition under Penal Code section
1170.95 to vacate her murder conviction.1 In 2013, a jury
convicted appellant of felony murder and found true a
robbery-murder allegation under section 190.2 (the special
circumstance statute). During the pendency of appellant’s
direct appeal, our Supreme Court clarified the meaning of
the special circumstance statute in People v. Banks (2015) 61
Cal.4th 788 (Banks). We affirmed the judgment, holding,
inter alia, that the special circumstance finding was
supported by substantial evidence under Banks. (People v.
Gonzalez (2016) 246 Cal.App.4th 1358 (Gonzalez I).) Our
Supreme Court granted review on an issue immaterial to
this appeal, and affirmed. (People v. Gonzalez (2018) 5
Cal.5th 186 (Gonzalez II).)
After the enactment of Senate Bill No. 1437 (2017-2018
Reg. Sess.) (SB 1437), which narrowed the felony murder
rule by incorporating the special circumstance statute’s
1
Undesignated statutory references are to the Penal Code.
2
requirement that the defendant at least have been a major
participant in the underlying felony and have acted with
reckless indifference to human life, appellant filed a petition
for resentencing under section 1170.95, alleging she was not
guilty of murder in the wake of SB 1437. Without issuing an
order to show cause, the trial court denied the petition,
reasoning that (1) the jury’s robbery-murder special
circumstance finding precluded relief as a matter of law, by
establishing that appellant at least had been a major
participant in the robbery and had acted with reckless
indifference to human life; and (2) although some cases had
held that a pre-Banks special circumstance finding alone
could not preclude relief under Section 1170.95, those cases
were inapposite in light of our holding in Gonzalez I that the
special circumstance finding was supported by substantial
evidence under Banks.
On appeal, appellant contends the court erred in
denying her petition without issuing an order to show cause.
The Attorney General disagrees, arguing the special
circumstance finding precluded relief as a matter of law,
either alone or in conjunction with our substantial-evidence
holding in Gonzalez I. In the alternative, the Attorney
General argues we should deem any error harmless by
making a new finding of substantial evidence under Banks
on this appeal.
We conclude the court erred, as neither the jury’s pre-
Banks special circumstance finding nor our opinion in
Gonzalez I refuted, as a matter of law, appellant’s
3
allegations that she was not a major participant in the
robbery and did not act with reckless indifference to human
life within the meaning of the special circumstance statute
as clarified in Banks. We further conclude the error was not
harmless regardless of whether the trial record contains
substantial evidence under Banks, as a finding of substantial
evidence of appellant’s guilt under a still-valid theory of
murder is insufficient to render her ineligible for
resentencing under section 1170.95. Accordingly, we reverse
the order denying appellant’s petition, and remand the
matter to the trial court with directions to issue an order to
show cause and proceed in accordance with section 1170.95.
BACKGROUND
In 2009, Victor Rosales died from a single gunshot
wound to the chest. (Gonzalez I, supra, 246 Cal.App.4th at
1367-1368.) The People charged appellant and two
codefendants -- Jorge Gonzalez and Alfonso Garcia -- with
Rosales’s murder. (Id. at 1363.) The People alleged that a
principal was armed with a firearm during the murder, and
that the murder was committed during the commission of a
robbery. (Ibid.) With respect to codefendant Gonzalez alone,
the People brought an additional charge of shooting at an
occupied motor vehicle, and an additional allegation of
causing death by personally and intentionally discharging a
firearm. (Ibid.)
4
A. Trial Evidence
The prosecution’s primary evidence concerning the
shooting of Rosales consisted of pretrial statements made
shortly after the shooting by his friend Alejandro Ruiz, who
did not testify. (Gonzalez I, supra, 246 Cal.App.4th at 1367,
1371.) Rosales’s mother and two sisters testified that Ruiz
made statements indicating appellant (Rosales’s girlfriend)
was responsible for the shooting in some unspecified
manner. (Id. at 1366-1367.) More specific statements by
Ruiz were introduced through the testimony of Inglewood
Police Officer Fernando Vasquez, who interviewed Ruiz upon
responding to a 911 call about the shooting. (Id. at 1367.)
Ruiz told the officer that about 20 minutes before the 911
call, he drove to Rosales’s house to pick up Rosales, who said
appellant had asked to meet at a nearby laundromat to get
lunch. (Id. at 1367.) Ruiz drove Rosales to the laundromat.
(Ibid.) “[Ruiz] recognized [appellant], accompanied by two
male Hispanics, walking out from behind two palm trees.
[Appellant] pointed at Rosales, and one of the males walked
up to the passenger side door, produced a small handgun,
and fired a single shot at Rosales.” (Ibid.) The shooter tried
to pull Ruiz out of the car, but Ruiz quickly drove away, back
to Rosales’s house. (Ibid.) Officer Vasquez testified that on
the evening of the shooting, he arrested appellant and
Gonzalez outside appellant’s house. (Ibid.)
The prosecution’s primary evidence concerning the
defendants’ intent to rob Rosales consisted of the testimony
of potential accomplice Anthony Stephen Kalac, who
5
testified after invoking his privilege against self-
incrimination and being granted use immunity. (Gonzalez I,
supra, 246 Cal.App.4th at 1364, 1374.) Kalac testified that
on the day of the shooting, he joined appellant, codefendant
Gonzalez, codefendant Garcia, and Garcia’s girlfriend in a
room at the Crystal Inn (across the street from the
laundromat where the shooting took place). (Id. at 1364.)
Appellant, Garcia, and Gonzalez discussed where they could
obtain drugs. (Ibid.) During this discussion, appellant told
Garcia and Gonzalez that she knew someone (Rosales) they
could “‘come up on,’” which Kalac understood to mean “‘rob.’”
(Ibid.) Appellant said Rosales was a drug dealer who had
been “‘physical’” (violent) with her. (Ibid.) “On cross-
examination, Kalac admitted that part of the conversation
among Gonzalez, [appellant], and Garcia about where to
obtain drugs had taken place in Spanish, a language he does
not understand. Kalac testified that the only part of
defendants’ conversation that was in English was about
‘[w]here they were meeting basically and how long.’”
(Gonzalez II, supra, 5 Cal.5th at 210 (dis. opn. of Liu, J.).)
Kalac also admitted he was high on heroin during the
conversation. (Id. at 193 (maj. opn. of Cuéllar, J.); id. at 211
(dis. opn. of Liu, J.).)
Kalac further testified that appellant called Rosales,
asked him to sell her drugs, and told him to meet at the
laundromat. (Gonzalez I, supra, 246 Cal.App.4th at 1364.)
Garcia said he would act as lookout, and left the Crystal Inn
with Gonzalez. (Id. at 1365.) Appellant, assisted by Garcia’s
6
girlfriend and Kalac, relocated to a nearby hotel. (Ibid.)
Appellant left Kalac alone in the new hotel. (Ibid.) Kalac
started walking home, and encountered Garcia and
Gonzalez, who told him “‘shit went bad.’” (Ibid.) Kalac
testified that he never saw a gun. (Ibid.) However, Kalac’s
ex-girlfriend told police that Garcia gave Kalac the gun that
had been used in the shooting. (Id. at 1365-1366.)
Neither appellant nor Garcia testified. (Gonzalez I,
supra, 246 Cal.App.4th at 1371.) Gonzalez testified he was
with appellant, Garcia, and Kalac at the Crystal Inn on the
day of the shooting, but they did not plan to rob Rosales;
instead, at Gonzalez’s request, appellant arranged to buy
drugs from Rosales. (Id. at 1369-1370.) Because the hotel
manager had told them to leave, appellant relocated to a
new hotel, while Gonzalez and Garcia went to the
laundromat to meet Rosales. (Id. at 1370.) Gonzalez did not
have a gun, and he had not seen any guns in the hotel room.
(Ibid.) Outside the laundromat, Gonzalez saw Rosales
sitting in a car, looking at him. (Ibid.) Gonzalez walked
over to Rosales and greeted him twice, but Rosales did not
respond, prompting Gonzalez to ask whether he should get
appellant. (Ibid.) Rosales suddenly threatened Gonzalez
with a handgun, which Gonzalez grabbed in self-defense; in
the ensuing struggle for possession, the gun accidentally
discharged. (Ibid.) Gonzalez ran away, found Garcia, and
came across Kalac, to whom he gave the gun. (Ibid.) He
joined appellant at a new hotel and accompanied her to her
7
house, where she introduced him to her son before the police
arrived and arrested them. (Id. at 1370-1371.)
B. Judgment and Appeal
“Aside from felony murder, the jury was not instructed
on any other theory of murder.” (Gonzalez I, supra, 246
Cal.App.4th at 1379.) The jury convicted all defendants of
felony murder, and found true the robbery-murder special
circumstance allegation. (Id. at 1363.) However, the jury
found all the firearm allegations not true, and acquitted
Gonzalez of shooting at an occupied vehicle. (Ibid.) Each
defendant was sentenced to life imprisonment without the
possibility of parole. (Ibid.)
On her direct appeal from the judgment, appellant
contended, inter alia, that the robbery-murder special
circumstance finding was not supported by substantial
evidence. (Gonzalez I, supra, 246 Cal.App.4th at 1362.)
During the pendency of her appeal, our Supreme Court
issued its opinion in Banks, and we ordered supplemental
briefing concerning it.2 (Gonzalez I, at 1382, fn. 6.) Drawing
guidance from Banks, and considering the record in the light
most favorable to the judgment, we held the trial record
contained substantial evidence that appellant was a major
2
As noted, Banks clarified the meaning of the special
circumstance statute. After we issued our opinion in Gonzalez I,
our Supreme Court further clarified the statute in People v. Clark
(2016) 63 Cal.4th 522 (Clark).
8
participant in the robbery and acted with reckless
indifference to human life. (Gonzalez I, at 1382, 1385.)
Implicitly presuming the jury believed Kalac’s testimony
about appellant’s conversations in the Crystal Inn, we
stated: “[Appellant] was identified as the person who first
proposed robbing Rosales. When she did so, she informed
Gonzalez and Garcia that Rosales was a drug dealer who
had been physically violent in the past. Thus, unlike in
Banks, there was a substantial probability the robbery
would result in resistance and the need to meet that
resistance with deadly force. [Appellant] then set up the
robbery by calling Rosales and asking him to meet her at the
laundromat. Her act of luring Rosales to the laundromat
was ‘critical to the robbery’s success.’” (Gonzalez I, at 1385,
quoting People v. Lopez (2011) 198 Cal.App.4th 1106, 1117
(Lopez).)3 We further presumed the jury believed Ruiz’s
3
Deeming Lopez instructive, we summarized its relevant
holding as follows: “appellant Brousseau, a prostitute, along with
several codefendants, planned to rob (‘com[e] up on’) some of her
prospective customers. [Citation.] During the encounter, the
victim was shot and killed by codefendant Lopez. Brousseau . . .
argued there was insufficient evidence to prove she acted with
reckless indifference to human life. The appellate court
disagreed. It found that ‘Brousseau’s act of luring the victim into
the secluded alley was critical to the robbery’s success. After
hearing what she knew was a gunshot, she failed to help the
victim or call 911.’ Instead, she spent the night with her
codefendants and had sex with Lopez. The appellate court found
Brousseau’s actions reflected an ‘utter indifference to the victim’s
life.’ [Citation.]” (Gonzalez I, supra, 246 Cal.App.4th at 1384.)
(Fn. is continued on the next page.)
9
account of the shooting, as relayed at trial by Officer
Vasquez: “[Appellant] also was identified as being at the
scene, and pointing Rosales out to the shooter.” (Gonzalez I,
at 1385.) We noted we were permitted to “consider Ruiz’s
account of Gonzalez’s use of a gun” in assessing the
sufficiency of the evidence supporting the robbery-murder
special circumstance allegation, notwithstanding the jury’s
not-true finding on the separate allegation that a principal
was armed with a gun. (Id. at 1385, fn. 10.) Finally, we
considered the evidence of appellant’s actions after the
shooting: “After a shot was fired, she neither called 911 to
assist the victim, nor called the police to report the shooting.
Rather, like Brousseau in Lopez, [appellant] spent the
afternoon with the shooter. She took Gonzalez to her home
to introduce him to her son, and was arrested with him later
that evening.” (Gonzalez I, at 1385; but see Gonzalez II,
supra, 5 Cal.5th at 195 [“because Ruiz immediately drove
Rosales away to an unknown location [after Rosales was
shot], this is not a case where defendants’ actions after the
shooting [alone] constituted actions that they knew carried a
grave risk of death, such as if they abandoned the dying
victim at the site of the crime without calling for medical
assistance”].) We concluded, “On this record, there was
We noted that although Banks had disapproved Lopez in part,
Lopez remained good law to the extent it relied on evidence
beyond Brousseau’s knowledge that Lopez was armed. (Gonzalez
I, at 1384, fn. 8.)
10
sufficient evidence for the jury to find that [appellant] was a
major participant and acted with reckless indifference to
human life.” (Gonzalez I, at 1385.)
Our Supreme Court granted review on a different issue
addressed in our opinion, viz., whether the special
circumstance finding rendered harmless the trial court’s
failure to instruct the jury on malice murder (along with
related defenses and lesser included offenses), as opposed to
felony murder. (Gonzalez II, supra, 5 Cal.5th at 195.) The
court concluded the special circumstance finding rendered
the instructional omission harmless, because it necessarily
reflected the jury’s independent determination of the
defendants’ guilt of felony murder, negating any reasonable
probability that the jury returned convictions merely
because the instructions presented an all-or-nothing choice
between felony murder and acquittal.4 (Id. at 191-192, 200-
201, 209.)
4
The Supreme Court recognized some ambiguity concerning
the factual basis of the jury’s finding of reckless indifference to
human life, and did not address whether that finding satisfied
the standards of Banks and Clark. (See Gonzalez II, supra, 5
Cal.5th at 208 [“What the [reckless indifference to human life]
finding demonstrates -- irrespective of the precise factual
underpinnings directly supporting the jury’s special circumstance
determination -- is that the jury could have found the special
circumstance false [had it convicted defendants of felony murder
merely because it was given an all-or-nothing choice between
felony murder and acquittal], without risking apparent logical
inconsistency with the felony-murder conviction” (italics added)];
(Fn. is continued on the next page.)
11
C. Section 1170.95 Petition
In January 2021, appellant filed, through counsel, a
petition to vacate her murder conviction under section
1170.95, alleging she could not be convicted of felony murder
after SB 1437’s changes to the law because: (1) she was not
the actual killer; (2) she did not act with the intent to kill as
an aider and abettor; and (3) she was not a major participant
in the underlying robbery, and she did not act with reckless
indifference to human life. Relying on People v. Torres
(2020) 46 Cal.App.5th 1168, review granted June 24, 2020,
S262011 (Torres) and related cases, appellant argued the
jury’s pre-Banks special circumstance finding did not refute
her allegations that she was not a major participant in the
robbery and did not act with reckless indifference to human
life. She argued this was true despite our holding in
Gonzalez I that the special circumstance finding was
supported by substantial evidence under Banks. In
opposition, the prosecution argued: (1) contrary to the Torres
id. at 207 [“Even if the jury was not persuaded that Gonzalez was
armed, a perpetrator need not be armed with a weapon to create
the force or fear necessary for robbery. . . . [T]he jury could have
concluded Gonzalez was not armed and still found defendants
had knowledge of a ‘grave risk of death.’ The jury may have
believed, for example, that the planned commission of a violent
crime such as the robbery of a drug dealer who had been
physically violent towards [appellant] in the past carried a grave
risk of death”]; cf. id. at 214 (dis. opn. of Liu, J.) [implying
majority’s unarmed-robbery-of-violent-drug-dealer theory was
invalid under Banks].)
12
line of cases, the special circumstance finding alone
precluded relief, as another line of cases had held; and (2) in
any event, the Torres line of cases was inapposite in light of
our holding in Gonzalez I that the special circumstance
finding was supported by substantial evidence under Banks.
In April 2021, the trial court held a hearing to
determine whether to issue an order to show cause, at which
the parties generally repeated the arguments made in their
briefs. The court denied appellant’s petition, agreeing with
the prosecution that “the jury’s special circumstance finding
shows as a matter of law that [appellant] could still be
convicted of felony murder,” and that the Torres line of cases
was “distinguish[able]” in light of our substantial-evidence
holding in Gonzalez I. Appellant timely appealed.
DISCUSSION
A. Section 1170.95
Section 1170.95 permits a defendant who was
convicted of felony murder to petition the sentencing court to
have the conviction vacated and to be resentenced on any
remaining counts when, inter alia, the petitioner could not
be convicted of murder after SB 1437’s changes to the law.
(See § 1170.95, subd. (a)(3).) These changes include the
amendment of section 189, subdivision (e) to provide that a
defendant is not guilty of felony murder unless the
defendant: (1) was the actual killer; (2) acted with the intent
to kill as an aider and abettor; or (3) was a major participant
in the underlying felony and acted with reckless indifference
13
to human life, as described in the special circumstance
statute. (See § 189, subd. (e); Stats. 2018, ch. 1015, § 3.)
After ascertaining that the petition contains certain
required information, the court must determine whether the
petitioner has made a prima facie showing of entitlement to
relief. (§ 1170.95, subd. (c); People v. Lewis (2021) 11 Cal.5th
952, 960-968 (Lewis).) “[A]t the prima facie stage, a
petitioner’s allegations should be accepted as true, and the
court should not make credibility determinations or engage
in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’” (Lewis, at 974, quoting People v.
Drayton (2020) 47 Cal.App.5th 965, 980 (Drayton).) Because
the weighing of evidence is typically required in order to
determine whether a defendant was a major participant in
an underlying felony and acted with reckless indifference to
human life, this determination is typically inappropriate at
the prima facie stage. (See, e.g., People v. Clayton (2021) 66
Cal.App.5th 145, 154, review denied Sept. 15, 2021; Drayton,
supra, 47 Cal.App.5th at 982.) The prohibition against
factfinding at the prima facie stage is subject to a limited
exception: “‘if the record, including the court’s own
documents, “contain[s] facts refuting the allegations made in
the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.’”” (Lewis,
supra, 11 Cal.5th at 971, quoting Drayton, at 979.)
“However, this authority to make [factual] determinations
without conducting an evidentiary hearing . . . is limited to
readily ascertainable facts from the record (such as the crime
14
of conviction) . . . .” (Drayton, at 980.) “[T]he ‘prima facie
bar was intentionally and correctly set very low.’” (Lewis, at
972.)
Where the court finds the petitioner has made a prima
facie showing, it must issue an order to show cause and hold
an evidentiary hearing on the petitioner’s eligibility for
relief. (§ 1170.95, subds. (c)-(d).) “At the hearing to
determine whether the petitioner is entitled to relief, the
burden of proof shall be on the prosecution to prove, beyond
a reasonable doubt, that the petitioner is guilty of murder
. . . under California law as amended by [SB 1437]. . . . The
prosecutor and the petitioner may also offer new or
additional evidence to meet their respective burdens.”
(§ 1170.95, subd. (d)(3).) “The question is whether the
petitioner committed murder under a still-valid theory, and
that is a factual question. The Legislature made this clear
by explicitly holding the People to the beyond a reasonable
doubt evidentiary standard and by permitting the parties to
submit new or additional evidence at the hearing on
eligibility.” (People v. Clements (2022) 75 Cal.App.5th 276,
294 (Clements).) “A finding that there is substantial
evidence to support a conviction for murder . . . is
insufficient to prove, beyond a reasonable doubt, that the
5
petitioner is ineligible for resentencing.” (§ 1170.95, subd.
(d)(3).)
5
Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775),
effective January 1, 2022, amended section 1170.95 by, inter alia,
(Fn. is continued on the next page.)
15
B. Analysis
We conclude the trial court erred in denying
appellant’s section 1170.95 petition without issuing an order
to show cause. Appellant undisputedly was convicted under
a felony murder theory, and her petition alleged: (1) she was
not the actual killer; (2) she did not act with the intent to kill
as an aider and abettor; and (3) she was not a major
participant in the underlying robbery, and she did not act
with reckless indifference to human life. If these allegations
are true, appellant could not be convicted of murder after SB
1437’s amendments to section 189, subdivision (e), and she is
entitled to resentencing. (See § 1170.95, subd. (a)(3); Stats.
2018, ch. 1015, § 3.) The court was required to accept
appellant’s allegations as true, and to issue an order to show
cause, unless readily ascertainable facts from the record of
conviction refuted her allegations as a matter of law. (See
Drayton, supra, 47 Cal.App.5th at 980; Lewis, supra, 11
Cal.5th at 974.) Below, we conclude nothing in the record of
conviction did so.
adding the quoted language regarding the insufficiency of a
finding of substantial evidence to render a petitioner ineligible for
relief. (Stats. 2021, ch. 551, § 2.) This amendment was
consistent with the holdings of most courts that had considered
the issue of the standard of proof at the evidentiary hearing.
(See, e.g., Clements, supra, 75 Cal.App.5th at 283, 293 [on
transfer from Supreme Court for reconsideration in light of SB
775, court noted SB 775 “reaffirm[ed]” its prior conclusion that
substantial-evidence standard did not apply at evidentiary
hearing].)
16
We disagree with the trial court’s conclusion that
appellant’s allegations were refuted as a matter of law by the
jury’s pre-Banks felony-murder special circumstance finding.
This issue, which has divided the Courts of Appeal, is
pending review in our Supreme Court.6 Mindful of the
conflicts in the law, we continue to follow the Torres line of
cases. Under those cases, the jury’s pre-Banks special
circumstance finding did not preclude appellant’s eligibility
for relief under section 1170.95 as a matter of law, because
“‘the factual issues that the jury was asked to resolve [in a
trial that occurred before Banks and Clark were decided] are
not the same factual issues our Supreme Court has since
identified as controlling.’” (People v. Mejorado (2022) 73
Cal.App.5th 562, 571, review granted March 23, 2022,
S273159, quoting People v. Smith (2020) 49 Cal.App.5th 85,
93, review granted July 22, 2020, S262835; see also Torres,
supra, 46 Cal.App.5th at 1179, rev.gr.)
We further conclude that our opinion in Gonzalez I
does not render the Torres line of cases inapposite. In
applying the substantial evidence standard of review in
Gonzalez I, we determined only that the jury reasonably
6
Our Supreme Court has granted review in People v.
Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review granted
March 10, 2021, S266606, to resolve the issue whether a felony-
murder special circumstance finding made before Banks and
Clark precludes a defendant from making a prima facie showing
of eligibility for relief under Penal Code section 1170.95. (Strong,
S266606, Supreme Court Mins., Mar. 10, 2021.)
17
could have found that appellant engaged in conduct
proscribed by the special circumstance statute as interpreted
in Banks -- not that the jury necessarily did so. (See People
v. Morales (2020) 10 Cal.5th 76, 88 [court applying
substantial evidence standard “‘“‘presumes in support of the
judgment the existence of every fact the trier could
reasonably deduce from the evidence’”’” (italics added)];
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1008 [“In
assessing how the evidence reasonably could have been
evaluated by the trier of fact, an appellate court . . . must
indulge reasonable inferences that the trier of fact might
have drawn from the evidence” (italics added)].) Thus, our
substantial-evidence analysis did not resolve the ambiguity
central to the reasoning of the Torres line of cases; it
remains unclear whether the jury decided “‘the same factual
issues our Supreme Court has since identified as
controlling.’” (People v. Mejorado, supra, 73 Cal.App.5th at
571, rev.gr.)
Because neither the jury’s pre-Banks special
circumstance finding nor anything else in the record of
conviction refuted appellant’s allegations as a matter of law,
we conclude the trial court erred in denying her petition at
the prima facie stage. Contrary to the Attorney General’s
contention, we cannot deem this error harmless by making a
new finding of substantial evidence under Banks and Clark.
As subdivision (d)(3) of section 1170.95 makes clear, a
finding of substantial evidence of guilt under a still-valid
theory is insufficient to render a petitioner ineligible for
18
resentencing. (§ 1170.95, subd. (d)(3); see also, e.g.,
Clements, supra, 75 Cal.App.5th at 283, 293.) Regardless of
whether the trial record contains substantial evidence under
Banks and Clark, appellant is entitled to an evidentiary
hearing, at which the parties may offer new or additional
evidence, and at which the trial court will determine
whether the prosecution proved beyond a reasonable doubt
that appellant was a major participant in the robbery and
acted with reckless indifference to human life, or was
otherwise guilty of murder under current law. (See
§ 1170.95, subd. (d)(3).)
In his respondent’s brief, filed after the effective date of
SB 775, the Attorney General cites subdivision (d)(3), which
now clarifies that a finding of substantial evidence at the
evidentiary hearing is insufficient to render a petitioner
ineligible for relief. (See Stats. 2021, ch. 551, § 2.)
Nevertheless, in urging us to deem appellant ineligible for
relief on the basis of a new finding of substantial evidence,
the Attorney General fails to address this amendment or the
prior caselaw consistent with it. (See, e.g., Clements, supra,
75 Cal.App.5th at 283, 293.) Instead, he primarily relies on
three cases that were decided before SB 775 was enacted:
People v. Price (2021) 71 Cal.App.5th 1128 (Price), review
granted Feb. 9, 2022, S272572; People v. Murillo (2020) 54
Cal.App.5th 160 (Murillo), review granted Nov. 18, 2020,
S264978; and People v. Law (2020) 48 Cal.App.5th 811(Law), review granted July 8, 2020, S262490. In our view,
reliance on Murillo and Law is misplaced, as neither applied
19
a substantial-evidence standard; instead, each appeared to
deem the evidence against the petitioner so overwhelming,
even considered in a light favorable to the petitioner, as to
resolve the relevant factual issues under Banks and Clark as
a matter of law. (See Murillo, supra, 54 Cal.App.5th at 172,
rev.gr.; Law, supra, 48 Cal.App.5th at 825, rev.gr.) Although
Price, in contrast, supports the Attorney General’s position
that a finding of substantial evidence in support of a pre-
Banks felony-murder special circumstance finding renders a
petitioner ineligible for relief, we disagree with that position
for the reasons stated above.
In sum, we conclude nothing in the record of conviction
prevented appellant from clearing the “‘very low’” bar set by
the Legislature at the prima facie stage. (Lewis, supra, 11
Cal.5th at 972.) Accordingly, we reverse the order denying
appellant’s petition at that stage, and remand to the trial
court with directions to issue an order to show cause and
proceed in accordance with section 1170.95.
20
DISPOSITION
The order denying appellant’s petition for resentencing
under section 1170.95 is reversed. The matter is remanded
to the trial court with directions to issue an order to show
cause and proceed in accordance with section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
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