People v. Harris

Filed 2/16/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B300410
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA023031-02)
v.
CALEB JAMES HARRIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Laura C. Ellison, Judge. Reversed and
remanded with directions.
Center for Juvenile Law and Policy, Loyola Law School and
Sean K. Kennedy for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
After two mistrials a jury in January 1997 found Caleb
James Harris guilty on two counts of first degree murder (Pen.
Code, § 187, subd. (a))1 and one count of arson (§ 451, subd. (a));
found true special circumstance allegations the murders had
been committed while Harris was engaged in the crime of arson
(§ 190.2, subd. (a)(17)) and by means of a destructive device
(§ 190.2, subd. (a)(6)); and also found true the multiple-murder
special-circumstance allegation (§ 190.2, subd. (a)(3)). Harris,
who was 17 years old at the time of his arrest, was sentenced to
concurrent indeterminate terms of 25 years to life for the
murders plus a consecutive term of seven years for arson. We
affirmed the judgment on appeal. (People v. Harris (Dec. 17,
1998, B118894) [nonpub. opn.].)
On February 13, 2019 Harris, represented by counsel,
petitioned for resentencing pursuant to newly enacted
section 1170.95. After receiving a response from the prosecutor
and a reply from Harris’s counsel and hearing argument, the
superior court denied the petition. On appeal Harris advances
three primary arguments: The court improperly engaged in
factfinding without issuing an order to show cause and holding
an evidentiary hearing; the jury’s arson-murder special-
circumstance finding does not necessarily preclude relief in light
of the Supreme Court’s subsequent clarification in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark) of the requirements for finding a felony-
murder special-circumstance allegation true; and the record of
conviction in this case does not establish his ineligibility for
resentencing as a matter of law. We agree, reverse the superior
1 Statutory references are to this code.
2
court’s ruling and remand the matter with directions to issue an
order to show cause and to proceed consistently with
section 1170.95, subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
1. Harris’s Murder Convictions
a. The firebombing
Valerie Rivers confronted Dwayne Moore on January 28,
1995 about an incident in her apartment two days earlier when
Rivers, in labor, was waiting for her mother to take her to the
hospital. As they argued on the street outside Rivers’s apartment
building, Damone Dellano, Rivers’s boyfriend, joined them and
pointed a gun at Moore. Moore began to cry and asked Rivers,
“You gonna let him do this to me?” Dellano put down the gun
and went back into the apartment with Rivers.
Later that afternoon Moore went to the apartment where
Eric Bowden was staying; Harris was also present. Bowden told
detectives he saw Moore and Harris fill beer bottles with gasoline
and put cut-up bedsheets into the bottles. Bowden had heard
Moore say he was “going to get the dude back,” referring to
Dellano. During his police interview Bowden said Harris was
“pumping up” Moore to get revenge against Dellano. Moore and
Harris left the apartment complex around 8:00 p.m. According to
a second witness, Ernest Bowman, when Moore and Harris left
the apartment complex, they were carrying Molotov cocktails.
Around 8:30 that evening Rivers heard people talking
outside her apartment. She recognized Moore’s voice. A speaker
she could not identify said, “If the home girl is cool and she got
kids, then I wouldn’t fuck with her. But if she—if she’s not, then
fuck it. Whatever.” Rivers heard Moore respond, “I ain’t going
out like that. Meet me back here in 30 minutes.” Less than
3
30 minutes later, Rivers heard Moore call out, “Valerie,” followed
by a “ball of fire” coming through her bedroom window. The
firebomb hit Rivers in the face. The bedroom was quickly
engulfed in flames.
Robert Alcaraz, Jr. testified he was waiting outside for a
friend when he saw two young Black men in dark, loose clothing
outside Rivers’s apartment lighting a rag and throw an object
through the window. Alcaraz saw a flame and heard the sound of
breaking glass. The two men ran off. Neither Alcaraz nor the
two individuals who were with him identified Harris as one of the
two men outside Rivers’s apartment building at the time of the
firebombing. One of the witnesses identified Moore.
The Hawthorne Fire Department arrived at the scene at
approximately 9:15 p.m. The firefighters pulled Rivers, her
newborn daughter and her young son from the burning
apartment. Rivers suffered severe burns and was hospitalized
for two months. Both her young children died from their burns.
Moore and Harris returned together to Bowden’s
apartment that evening around 10:00 p.m. Harris told Bowden
he went over to Rivers’s apartment but had not thrown the
Molotov cocktails.
b. Harris’s three trials
Harris and Moore were charged by information in June
1995 with the first degree murder of Rivers’s two children, the
attempted murder of Rivers and arson causing great bodily
injury. The information further alleged as special circumstances
that the murders were committed by means of a destructive
device, were committed during the commission of arson and
constituted multiple murders. At trial Bowden recanted his prior
statements implicating Harris. Bowden explained he had simply
4
repeated what the police told him and had lied out of fear because
the investigating officer said he was a suspect. The prosecutor
impeached Bowden with his statements to the police. The first
trial ended in a mistrial when the jury was unable to reach a
verdict as to either defendant and declared itself hopelessly
deadlocked after 10 days of deliberations.
At the retrial Moore was convicted on all four charges. The
second jury was unable to reach a verdict as to any of the charges
against Harris, however, and another mistrial was declared as to
him.
Bowden was unavailable as a witness for Harris’s third
trial (as he had been for the second trial); so the People read his
testimony from the first trial, including his statements to the
police identifying Harris as one of the individuals making the
Molotov cocktails. The jury also heard Bowden’s subsequent
repudiation of those statements as fabrications. Bowman
testified two individuals had made Molotov cocktails in the
laundry room behind the apartment complex and said he saw
Moore and Harris carry the Molotov cocktails to a parked van
and drive away together. However, Bowman answered
inconsistently to repeated questions whether Harris had been one
of the men actually making the Molotov cocktails—stating he was
one of the bombmakers on direct examination; but conceding on
cross-examination Harris had just been standing in the doorway
to the laundry room while two other men made the Molotov
cocktails. After three days of deliberation the jury found Harris
not guilty of attempted murder, which the prosecutor
acknowledged required proof of intent to kill, but guilty on both
counts of first degree murder and of arson causing great bodily
5
injury. The jury also found true all the charged special
circumstances.
c. Denial of Harris’s new trial motion
Harris, represented by new counsel, moved for a new trial,
challenging the credibility of Bowman’s testimony and arguing
the evidence was insufficient to prove Harris had aided and
abetted either arson or murder. The motion also asserted
Harris’s trial counsel, who presented no defense witnesses,
provided constitutionally ineffective representation. The court
denied the motion, observing, “I agree with the jury. I thought
[Bowman] was credible. I have no problem with it. I had no
problem with the decision. I think it was a proper decision. I
would have had a problem with the case if the jury had based
their decision on any kind of finding by innuendo that this
defendant intended these babies be killed or injured, or the
woman. But there was nothing in that. But my conclusion, from
what the jury came up with, is that he basically was an aider and
abettor, as far as the arson is concerned. And that testimony
came out. And there was nothing wrong with the verdict.”
d. The trial court’s comments at sentencing
The prosecutor asked the court to sentence Harris to
consecutive state prison terms of life without parole for the
murder of the two young children. The trial court instead
sentenced Harris to concurrent indeterminate terms of 25 years
to life, plus seven years for the aggravated arson. Explaining its
decision, the court stated, “I’ve considered the fact that both the
jury and I personally feel that the defendant did not intend the
happening that did occur. I know the People tried to show that
the defendant may have thrown one of them. But there’s just no
evidence of that at all. I think that, because of the nature of his
6
participation in this matter, that life without possibility of parole
would not be the proper sentence.”2
2. The Section 1170.95 Petition
Harris, represented by Loyola Law School’s Center for
Juvenile Law and Policy, petitioned for resentencing pursuant to
section 1170.95 on February 13, 2019. In a declaration Harris
averred he had been prosecuted and convicted on two counts of
first degree murder under a theory of felony murder and the
natural and probable consequences doctrine during his third jury
trial. He further declared he could not now be convicted on either
count because he was not the actual killer of the victims, had not
aided or assisted the actual killer with the intent to kill, and was
neither a major participant in the underlying felony nor had
acted with reckless indifference to human life during the course
of that felony.
In an accompanying memorandum Harris stated that the
prosecutor had proceeded at his third trial primarily on a felony-
murder theory, arguing Harris had assisted Moore in making and
transporting the firebombs to Rivers’s apartment building.
Pointing to the finding he was not guilty of attempted murder,
which requires proof of an intent to kill, Harris asserted there
was insufficient evidence he was either the actual killer of the
2 On appeal Harris did not challenge the sufficiency of the
evidence to convict him of special-circumstance felony-murder,
arguing only that defense counsel had provided ineffective
assistance by failing to call several witnesses who had testified at
the earlier trials and that the $32,000 restitution fine had been
imposed without sufficient notice or adequate factual support
and, in any event, should have been subject to a right of offset for
payments made by Moore. We rejected those arguments and
affirmed the judgment. (People v. Harris, supra, B118894.)
7
children or had acted with an intent to kill when he assisted
Moore. Relying on the Supreme Court’s analysis in Banks, supra,
61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, and
emphasizing he was a juvenile at the time of the firebombing,
Harris also argued that under the current requirements for proof
of a felony-murder special-circumstance allegation, he had not
been a major participant in the arson and had not acted with a
reckless indifference to human life.
The District Attorney filed a response to Harris’s petition,
contending the resentencing provisions in section 1170.95 are
unconstitutional—an argument not repeated by the Attorney
General on appeal—and, in any event, Harris was ineligible for
relief because he could still be convicted under current law of first
or second degree murder. The opposition memorandum analyzed
the evidence of Harris’s involvement in the crimes under the
factors identified in Banks and Clark. Our opinion affirming
Harris’s convictions was attached as an exhibit to the District
Attorney’s response.
Harris filed a reply to the District Attorney’s opposition
memorandum, which addressed both the constitutional issues
and the argument he was a major participant who had acted with
reckless indifference to human life under Banks and Clark.
3. The Trial Court’s Ruling
The trial court denied Harris’s petition after hearing
argument from counsel at a hearing on August 1, 2019, ruling,
“[T]he facts show that Mr. Harris was a major participant and
acting with reckless disregard and did act with implied malice.”3
3 Judge William R. Hollingsworth, Jr., who presided at
Harris’s third trial, retired a number of years before Harris filed
8
Explaining its ruling, the court stated, “The facts show that
Mr. Harris participated with Mr. Moore in filling beer bottles
with gasoline, cutting-up bed sheets, and putting them into
bottles with the stated purpose of going to the apartment, and
getting back or getting somebody named Dellano back, that is
Ms. Rivers’s boyfriend, or was Ms. Rivers’s boyfriend at the time.
“The facts indicate that Mr. Harris was pumping Moore up,
which was his co-defendant, and telling him he should get him
back for what he had done. The facts indicate that Mr. Harris,
along with Mr. Moore, went to an apartment, and changed into
dark clothing, and that the two left together.
“The testimony was given also that Harris had told
Bo[w]den that he had gone over to the apartment in question. He
also said he did not throw the Molotov cocktails. And again, the
People are not suggesting that the record indicates that it was
Mr. Harris who actually threw the Molotov cocktails. From the
testimony, he not only prepared the incendiary devices, he did so
with the intent to hurt somebody, to get somebody back. That he
went to the location where the cocktails, Molotov cocktails were
thrown into an apartment, and as we all know the end of the
result of that was two young children were killed. The mother
was severely injured.
“As a result of that testimony, the jury did find him guilty
of the crime of arson. He was found guilty of preparing whatever
incendiary devices were needed to do the arson. He was found
guilty of murder of the two children. There was more than
his petition under section 1170.95. Judge Laura C. Ellison ruled
on the petition.
9
sufficient evidence to find that he was an aider and abettor. So I
am going to deny his request to be resentenced.”4
CONTENTIONS
The Attorney General concedes the superior court erred to
the extent it engaged in factfinding rather than evaluating the
record of conviction solely to determine whether it established
Harris’s ineligibility for relief under section 1170.95 as a matter
of law.5 However, the Attorney General contends the court
correctly ruled Harris ineligible as a matter of law based on the
jury’s felony-murder special-circumstance finding. Harris argues
a pre-Banks/Clark felony-murder special-circumstance finding
does not necessarily preclude relief; the superior court improperly
relied on the factual summary in this court’s opinion affirming
Harris’s conviction; and evidentiary conflicts at trial, as well as
the trial court’s findings at Harris’s sentencing hearing, were
sufficient to require the superior court to issue an order to show
cause under section 1170.95, subdivision (c).
DISCUSSION
1. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, eliminated
the natural and probable consequences doctrine as a basis for
finding a defendant guilty of murder (People v. Gentile (2020)
4 The superior court did not address the District Attorney’s
constitutional arguments.
5 In light of this concession the Attorney General does not
argue Harris was ineligible for relief based on the superior court’s
finding he had acted with implied malice.
10
10 Cal.5th 830, 842-843 (Gentile))6 and significantly limited the
felony-murder exception to the malice requirement for murder.
(See, e.g., People v. Rodriguez (2020) 58 Cal.App.5th 227, 236;
People v. Bascomb (2020) 55 Cal.App.5th 1077, 1081.)7
Senate Bill 1437 also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Gentile, supra, 10 Cal.5th at
p. 859.) The petition must include a declaration by the petitioner
6 New section 188, subdivision (a)(3), provides, “Except as
stated in subdivision (e) of Section 189 [governing felony murder],
in order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.” By
requiring proof of malice except in cases of felony murder,
Senate Bill 1437 thus eliminated natural and probable
consequences liability for murder “regardless of degree.” (Gentile,
supra, 10 Cal.5th at pp. 848, 851.)
7 New section 189, subdivision (e)—the exception to
section 188, subdivision (a)(3)’s malice requirement for murder—
permits a murder conviction for a death that occurred during the
commission of certain serious felonies, absent proof of malice,
when other specified circumstances relating to the defendant’s
individual culpability have been proved: The person was the
actual killer; the person was not the actual killer, but, with the
intent to kill, aided or abetted the actual killer in the commission
of first degree murder; or 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
that he or she is eligible for relief under section 1170.95 and a
statement whether the petitioner requests the appointment of
counsel. (§ 1170.95, subd. (b)(1); see People v. Verdugo (2020)
44 Cal.App.5th 320, 326-327 (Verdugo), review granted Mar. 18,
2020, S260493.)
If the petition contains all required information,
section 1170.95, subdivision (c), prescribes a process for the court
to determine whether an order to show cause should issue: “The
court shall review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the
provisions of this section. If the petitioner has requested counsel,
the court shall appoint counsel to represent the petitioner. The
prosecutor shall file and serve a response . . . and the petitioner
may file and serve a reply. . . . If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.”
The exact nature of this procedure is the focus of
disagreement between People v. Lewis (2020) 43 Cal.App.5th
1128, 1136, review granted March 18, 2020, S260598, Verdugo,
supra, 44 Cal.App.5th 320, review granted, and the many
subsequent cases that have agreed with their interpretation of
section 1170.95, subdivision (c),8 on the one hand, and People v.
Cooper (2020) 54 Cal.App.5th 106, review granted November 10,
2020, S264684, on the other.
8 See, e.g., People v. Soto (2020) 51 Cal.App.5th 1043, 1054,
review granted September 23, 2020, S263939; People v. Drayton
(2020) 47 Cal.App.5th 965, 975; People v. Torres (2020)
46 Cal.App.5th 1168, 1177, review granted June 24, 2020,
S262011.
12
In Verdugo we held subdivision (c) prescribes a two-step
process for the court to determine if an order to show cause
should issue, “one made before any briefing to determine whether
the petitioner has made a prima facie showing he or she falls
within section 1170.95—that is, that the petitioner may be
eligible for relief—and a second after briefing by both sides to
determine whether the petitioner has made a prima facie
showing he or she is entitled to relief.” (Verdugo, supra,
44 Cal.App.5th at p. 328, review granted.)
As to the first step, we explained, “[B]ecause a petitioner is
not eligible for relief under section 1170.95 unless he or she was
convicted of first or second degree murder based on a charging
document that permitted the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine (§ 1170.95, subd. (a)(1), (2)), the
court must at least examine the complaint, information or
indictment filed against the petitioner; the verdict form or factual
basis documentation for a negotiated plea; and the abstract of
judgment. Based on a threshold review of these documents, the
court can dismiss any petition filed by an individual who was not
actually convicted of first or second degree murder. The record of
conviction might also include other information that establishes
the petitioner is ineligible for relief as a matter of law because he
or she was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188
and 189.” (Verdugo, supra, 44 Cal.App.5th at pp. 329-330, review
granted.) A petitioner is entitled to appointment of counsel, we
held, only if the superior court does not determine he or she is
ineligible for relief as a matter of law at this first subdivision (c)
13
prima facie review. (Verdugo, at p. 332; accord, People v. Lewis,
supra, 43 Cal.App.5th at p. 1140, review granted.)
The court in People v. Cooper, supra, 54 Cal.App.5th 106,
review granted, disagreed that section 1170.95, subdivision (c),
contemplates two separate steps and held a petitioner is entitled
to counsel upon the filing of a facially sufficient petition for relief
that requests counsel be appointed. (Cooper, at p. 123.) In the
Cooper court’s view, section 1170.95, subdivision (c)’s first
sentence is simply “a topic sentence summarizing the trial court’s
task before issuing an order to show cause, and the following
sentences . . . specify the procedure in undertaking that task,”
meaning there is only one prima facie review before an order to
show cause issues. (Cooper, at p. 118.) Thus, once a petitioner
files a facially sufficient petition requesting counsel, the superior
court must appoint counsel before performing any review under
section 1170.95, subdivision (c). (Cooper, at p. 123.)
We do not find persuasive the Cooper court’s interpretation
of section 1170.95, subdivision (c). Unless we receive different
instructions from the Supreme Court, we adhere to the analysis
set forth in Verdugo and the cases that have followed it.9
Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
9 The Supreme Court will likely resolve this disagreement in
People v. Lewis, S260598, in which briefing and argument have
been limited to the following issues: “(1) May superior courts
consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under Penal Code section 1170.95? (2) When does the right to
appointed counsel arise under Penal Code section 1170.95,
subdivision (c)?”
14
remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo, supra,
44 Cal.App.5th at p. 327, review granted.) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez, supra, 58 Cal.App.5th at p. 230;
People v. Lopez (2020) 56 Cal.App.5th 936, 949, review granted
Feb. 10, 2021, S265974; but see People v. Duke (2020)
55 Cal.App.5th 113, 123, review granted Jan. 13, 2021, S265309
[prosecutor must only prove a reasonable jury could find the
defendant guilty of murder with the requisite mental state;
“[t]his is essentially identical to the standard of substantial
evidence”].)10 The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981;
People v. Lewis, supra, 43 Cal.App.5th at p. 1136, review
granted.)
10 In granting review in People v. Duke, S265309, the
Supreme Court limited the issue to be briefed and argued to the
following: “Can the People meet their burden of establishing a
petitioner’s ineligibility for resentencing under . . .
section 1170.95, subdivision (d)(3) by presenting substantial
evidence of the petitioner’s liability for murder under . . .
sections 188 and 189 as amended by Senate Bill No. 1437
(Stats. 2018, ch. 1015), or must the People prove every element of
liability for murder under the amended statutes beyond a
reasonable doubt?”
15
2. The Superior Court Properly Considered This Court’s
Prior Opinion Affirming Harris’s Convictions
This court in Verdugo, supra, 44 Cal.App.5th at page 333,
review granted, explained, “A court of appeal opinion, whether or
not published is part of the appellant’s record of conviction” and
held it was proper for the superior court to consider the
information in an opinion affirming the petitioner’s murder
conviction on direct appeal “in determining whether he had made
a prima facie showing of eligibility for relief under
section 1170.95 or whether he was ineligible for relief as a matter
of law.” (Accord, People v. Bascomb, supra, 55 Cal.App.5th at
p. 1081; People v. Soto (2020) 51 Cal.App.5th 1043, 1055, review
granted Sept. 23, 2020, S263939; People v. Lewis, supra,
43 Cal.App.5th at p. 1136, fn. 7, review granted; see People v.
Woodell (1998) 17 Cal.4th 448, 455 [appellate court record,
including the appellate opinion, properly considered part of the
record of conviction to establish the basis for an out-of-state
felony conviction and determine if it qualified as a strike under
California law].)
Harris’s citation to Gilmore v. Superior Court (1991)
230 Cal.App.3d 416 to argue factual statements in an appellate
opinion are inadmissible hearsay and not properly considered in
determining eligibility for relief under section 1170.95 is
misplaced. Evaluating the evidence before the trial court on a
summary judgment motion, the court of appeal in Gilmore held
only that the description of events in an appellate opinion from a
criminal case is inadmissible hearsay in a civil action for
wrongful death. (Id. at p. 418.) In postconviction proceedings,
however, statements from prior appellate opinions are admissible
as reliable hearsay even if they would not be admissible at trial.
16
(See, e.g., People v. Guilford (2014) 228 Cal.App.4th 651, 660-661
[proper to rely on prior appellate opinion when ruling on
section 1170.126 resentencing petition]; see also People v. Saelee
(2018) 28 Cal.App.5th 744, 756 [reliable hearsay may be
considered in deciding Proposition 64 petition to recall felony
sentence for a marijuana conviction and to resentence as a
misdemeanor]; People v. Sledge (2017) 7 Cal.App.5th 1089, 1094-
1095 [reliable hearsay may be considered at eligibility hearing
under Proposition 47].) The rules of evidence governing
section 1170.95 proceedings “should be no different than those
applied at other analogous postconviction resentencing
proceedings.” (People v. Williams (2020) 57 Cal.App.5th 652, 661,
petn. for review pending, petn. filed Dec. 23, 2020.)
3. Harris May Challenge the Special Circumstance Finding
in a Section 1170.95 Petition
a. Banks and Clark
Section 189, subdivision (e), which permits a felony-murder
conviction only when specified facts relating to the defendant’s
individual culpability have been proved, incorporates in
subdivision (e)(3) the same requirements for proving the
defendant acted with reckless indifference to human life as a
major participant in one of the identified serious felonies as
necessary for a felony-murder special-circumstance finding under
section 190.2, subdivision (d).11 The factors properly considered
11 Enacted in 1990, section 190.2, subdivision (d), provides
that “every person, not the actual killer, who, with reckless
indifference to human life and as a major participant, aids, abets,
counsels, commands, induces, solicits, requests, or assists in the
commission of a felony enumerated in paragraph (17) of
subdivision (a) which results in the death of some person or
17
in assessing such a felony-murder special-circumstance finding
were clarified in Banks, supra, 61 Cal.4th 788 and Clark, supra,
63 Cal.4th 522, nearly two decades after Harris’s conviction.
(See In re Scoggins (2020) 9 Cal.5th 667, 671; In re Miller (2017)
14 Cal.App.5th 960, 977-978.)
In Banks the Supreme Court identified factors courts
should consider in determining whether a defendant was a
“major participant” under section 190.2, subdivision (d): “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? What did the defendant do after lethal force was
used?” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)
In both Banks and Clark the Court explained that, to
determine whether the defendant acted with reckless
indifference, courts must “look to whether a defendant has
‘“knowingly engag[ed] in criminal activities known to carry a
grave risk of death.”’” (Banks, supra, 61 Cal.4th at p. 801.)
persons, and who is found guilty of murder in the first degree
therefor, shall be punished by death or imprisonment in the state
prison for life without the possibility of parole if a special
circumstance enumerated in paragraph (17) of subdivision (a) has
been found to be true under Section 190.4.” (See People v. Law
(2020) 48 Cal.App.5th 811, 822, review granted July 8, 2020,
S262490.)
18
Specifically, “[t]he defendant must be aware of and willingly
involved in the violent manner in which the particular offense is
committed, demonstrating reckless indifference to the significant
risk of death his or her actions create.” (Ibid.) As further refined
in Clark, “reckless indifference” “encompasses both subjective
and objective elements. The subjective element is the defendant’s
conscious disregard of risks known to him or her. . . .
[R]ecklessness is also determined by an objective standard,
namely what ‘a law-abiding person would observe in the actor’s
situation.’” (Clark, supra, 63 Cal.4th at p. 617.)
The Supreme Court in Clark set out a series of
considerations relevant to determining whether a defendant had
acted with reckless indifference to human life (with some obvious
overlap with the major-participant factors specified in Banks).
Among others, was the defendant aware that guns would be used;
did the defendant himself or herself use a gun; did the defendant
have an opportunity to reduce the overall risk of violence during
the felony or to aid the victim; did the defendant know his or her
cohorts were likely to use lethal force? (Clark, supra, 63 Cal.4th
at pp. 618-622.) Specifically with respect to the facts before it,
the Clark Court emphasized, “[W]hile the fact that a robbery
involves a gun is a factor beyond the bare statutory requirements
for first degree robbery felony murder, this mere fact, on its own
and with nothing more presented, is not sufficient to support
a finding of reckless indifference to human life for the felony-
murder aider and abettor special circumstance.” (Id. at p. 618.)12
12 The Supreme Court in Banks and Clark did not expressly
require that juries be instructed on those clarifications. Optional
language describing the Banks/Clark factors was added to the
CALCRIM instructions; and the bench notes expressly direct the
19
b. The jury’s pre-Banks/Clark felony-murder special-
circumstance finding does not preclude relief as a
matter of law
The felony-murder special-circumstance allegations
required the jury to find that Harris had acted with reckless
indifference to human life and as a major participant in the arson
that resulted in the death of Rivers’s two children (§ 190.2,
subds. (a)(17), (d)). The Attorney General argues the jury’s
finding precludes relief under section 1170.95 as a matter of law
and insists any challenge to the evidentiary support for that
finding based on Banks and Clark had to be made by petition for
writ of habeas corpus. Although this position has been upheld in
several court of appeal decisions, we reject it, as have other
courts, as contrary to the language and intent of section 1170.95.
trial court to determine whether the Banks and Clark factors
“need be given.” (See CALCRIM No. 703.) Accordingly, it is not
necessarily the case that a post-Banks/Clark jury will have
received instructions that differ from those given to a pre-
Banks/Clark jury that made a major participant/reckless
indifference finding. Nonetheless, posttrial, appellate and
postconviction review of a felony-murder special-circumstance
finding after Banks and Clark must consider the factors, issues
and questions posited in those cases. (See, e.g., In re Scoggins,
supra, 9 Cal.5th at p. 671 [habeas petitioner’s conduct did not
support a finding of reckless indifference to human life under
Banks and Clark notwithstanding affirmance on direct appeal of
a pre-Banks and Clark robbery-murder special-circumstance
finding]; In re Bennett (2018) 26 Cal.App.5th 1002 [granting
habeas relief and vacating robbery-murder special-circumstance
finding in light of Banks and Clark, notwithstanding prior
opinion affirming the special circumstance finding].)
20
In People v. Galvan (2020) 52 Cal.App.5th 1134, review
granted October 14, 2020, S264284, our colleagues in
Division One of this court concluded that allowing a petition
under section 1170.95 to challenge the evidentiary support for
the felony-murder special-circumstance finding would give
defendants convicted before Banks and Clark “an enormous
advantage” because “Defendants convicted after the Supreme
Court issued its decisions in Banks and Clark would be required
to challenge the sufficiency of the evidence of the special
circumstances finding on direct appeal, where the People would
need only to show that substantial evidence supported that
finding. . . . But where, as here, a defendant was convicted before
Banks and Clark, if the defendant could bring a collateral
challenge under section 1170.95, the prosecution would be
required to prove the special circumstance beyond a reasonable
doubt [and] nothing in the language of Senate Bill No. 1437
suggests that the Legislature intended unequal treatment of such
similarly situated defendants.” (Galvan, at pp. 1142-1143,
accord, People v. Murillo (2020) 54 Cal.App.5th 160, 168, review
granted Nov. 18, 2020, S264978 [“[b]y requiring a defendant to
seek relief via habeas corpus, we avoid creating a disparity in
which similarly situated defendants’ cases are evaluated under
different standards based solely on the date of their convictions”];
People v. Gomez (2020) 52 Cal.App.5th 1, 17, review granted
Oct. 14, 2020, S264033.)
These decisions misperceive the nature of the
section 1170.95 petition, which challenges the murder conviction,
not the special circumstance finding. (People v. York (2020)
54 Cal.App.5th 250, 260, review granted Nov. 18, 2020, S264954
[“section 1170.95 permits a petitioner to challenge a murder
21
conviction. If that challenge succeeds, then under
section 1170.95, subdivision (d)(3), the special circumstance is
vacated as a collateral consequence”].)
To be sure, section 189, subdivision (e)(3), as amended by
Senate Bill 1437, is now “the same as the standard for finding a
special circumstance under section 190.2[, subdivision] (d) as the
former provision expressly incorporates the latter.” (In re Taylor
(2019) 34 Cal.App.5th 543, 561; accord, People v. York, supra,
54 Cal.App.5th at p. 258, review granted [“[t]he language of
section 189, subdivision (e)(3), as amended by Senate Bill 1437,
tracks the language of the special circumstance provision”].) But
“[w]hat permits a defendant convicted of felony murder to
challenge his or her murder conviction based on the contention
that he or she was not a major participant in the underlying
felony who acted with reckless indifference to human life, are the
changes Senate Bill 1437 made to sections 188 and 189, and in
particular the addition of section 189, subdivision (e)(3), not the
rulings in Banks and Clark.” (York, at p. 261.) Thus, Harris’s
petition is made possible by the changes made to section 189, not
because of the clarifications made in Banks and Clark.
(See § 1170.95, subd. (a)(3) [allowing petition if “the petitioner
could not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019”].)
Similarly, although Harris’s jury was instructed that to
find true the special circumstance allegation under section 190.2,
subdivisions (a)(17) and (d), it had to find he aided and abetted
the arson that led to the victims’ deaths while acting as a major
participant with reckless indifference to human life, the same
elements now found in section 189, subdivision (e)(3), that
pre-Banks/Clark finding, without more, does not preclude relief
22
under section 1170.95. (See In re Scoggins, supra, 9 Cal.5th at
pp. 673-674 [“Where a decision clarifies the kind of conduct
proscribed by a statute, a defendant whose conviction became
final before that decision ‘is entitled to post-conviction relief upon
a showing that his [or her] conduct was not prohibited by the
statute’ as construed in the decision. [Citation.] “In such
circumstances, it is settled that finality for purposes of appeal is
no bar to relief, and that habeas corpus or other appropriate
extraordinary remedy will lie to rectify the error’”]; People v.
York, supra, 54 Cal.App.5th at p. 262, review granted [“a pre-
Banks and Clark special circumstance finding—necessarily made
on the basis of our former, and significantly different,
understanding of what the terms ‘major participant’ in the
underlying felony and ‘reckless indifference’ to human life
meant—does not preclude relief under section 1170.95 as a
matter of law”]; People v. Law, supra, 48 Cal.App.5th at p. 825,
review granted [“the trial court erred by concluding the special
circumstance finding, on its own, rendered Law ineligible for
relief—that is, the court erred by failing to determine whether
Law qualified as a major participant who acted with reckless
indifference to human life under Banks and Clark”]; People v.
Torres (2020) 46 Cal.App.5th 1168, 1180, review granted June 24,
2020, S26011 [because no court has affirmed the special
circumstance findings at issue post-Banks and Clark, “[t]here is
therefore a possibility that Torres was punished for conduct that
is not prohibited by section 190.2 as currently understood”]; but
see People v. Nunez (2020) 57 Cal.App.5th 78, 93, review granted
Jan. 13, 2021, S265918 [disagreeing with York, Law and Torres].)
Because the evidence supporting Harris’s special
circumstance finding has never been reviewed under the
23
standards set forth in Banks and Clark, the superior court could
properly determine he was ineligible for relief as a matter of law
only after reviewing the available record of conviction in light of
the Banks and Clark factors. (See Verdugo, supra,
44 Cal.App.5th at p. 330, review granted [“[t]he record of
conviction might also include other information that establishes
the petitioner is ineligible for relief as a matter of law because he
or she was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188
and 189”]; People v. Cornelius (2020) 44 Cal.App.5th 54, 58,
review granted Mar. 18, 2020, S260410 [record must show
defendant is “indisputably ineligible for relief”].) In making that
determination—that is, in evaluating whether a petitioner has
made a prima facie showing he or she is entitled to relief—the
superior court cannot engage in factfinding. As the court of
appeal explained in People v. Drayton, supra, 47 Cal.App.5th at
page 980, “The trial court should not evaluate the credibility of
the petition’s assertions, but it need not credit factual assertions
that are untrue as a matter of law—for example, a petitioner’s
assertion that a particular conviction is eligible for relief where
the crime is not listed in subdivision (a) of section 1170.95 as
eligible for resentencing. Just as in habeas corpus, if the record
‘contain[s] facts refuting the allegations made in the petition . . .
the court is justified in making a credibility determination
adverse to the petitioner.’ [Citation.] However, this authority to
make determinations without conducting an evidentiary hearing
pursuant to section 1170.95, subdivision (d) is limited to readily
ascertainable facts from the record (such as the crime of
conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion (such as determining
24
whether the petitioner showed reckless indifference to human life
in the commission of the crime).” (Accord, People v. Perez (2020)
54 Cal.App.5th 896, 903-904, review granted Dec. 9, 2020,
S265254; People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165-
1166.)
4. Harris Is Not Ineligible for Relief as a Matter of Law
The superior court did not deny Harris’s petition based
solely on the jury’s true finding on the felony-murder special-
circumstance allegation—the argument advanced by the Attorney
General, which we reject. Rather, the court, citing to evidence in
the record including portions of the factual statement from our
opinion on Harris’s direct appeal, ruled “the facts show” that
Harris was a major participant in the arson who had acted with
reckless disregard for human life. Yet some of the facts made
particularly significant by the Supreme Court’s decisions in
Banks and Clark were disputed at trial and not clearly resolved
by the jury’s finding.
Our opinion stated that Bowden saw Harris, as well as
Moore, fill bottles with gasoline and put torn pieces of bedsheet
into the bottles and that Bowden heard Harris “pumping Moore
up,” telling him he should get Dellano back for what he had
done.13 At trial, however, Bowden recanted, claiming his
13 Although, as discussed, the appellate opinion is part of the
record of conviction and factual statements in the opinion are
admissible in section 1170.95 proceedings as “reliable hearsay,”
factual statements that are inconsistent with the evidence at
trial—like any other form of evidence—are not preclusive. (See
People v. Woodell, supra, 17 Cal.4th at p. 457 [facts recited in an
opinion on direct appeal are admissible and “probative” in a
posttrial proceeding; “[i]f the appellate court did state the
pertinent facts, a trier of fact is entitled to find that those
25
description of Harris’s involvement was false. In addition, Moore
in his testimony at the first trial, read at Harris’s third trial,
denied that Harris had encouraged him to seek revenge. For his
part, Bowman was at most equivocal whether Harris had
participated in making the firebombs or had simply been a
passive observer, who then helped Moore transport the firebombs
to Rivers’s apartment complex. And neither Alcaraz nor the
other individuals who witnessed the firebombing identified
Harris as one of the two men they saw lighting rags and throwing
objects through Rivers’s apartment window. Indeed, the court at
Harris’s sentencing hearing stated there was no evidence Harris
had thrown any of the firebombs and it did not appear he
intended the devices to hurt, let alone kill, anyone. Nor was
there evidence Harris was physically present when Moore hurled
the firebombs through Rivers’s bedroom window, rather than
waiting for him in the van they had driven to the apartment
complex.
Harris unquestionably aided and abetted the arson that
killed Rivers’s two young children, making him guilty of felony
murder as defined at the time. Prior to Banks and Clark, even
the most benign of these depictions of Harris’s involvement in
facilitating the crime would also have been sufficient for a felony-
murder special-circumstance finding. However, as explained in
statements accurately reflect the trial record. Moreover, the
defendant, who suffered the conviction and took the appeal,
would know of and be able to challenge any material flaws or
omissions in the opinion”]; see also People v. Clements (Feb. 4,
2021, E073965) __ Cal.App.5th ___ [2021 Cal.App. Lexis 98,
[*22]] [citing Woodell as authority for admissibility and probative
value of facts stated in an opinion on direct appeal in a
section 1170.95 evidentiary hearing].)
26
Banks, supra, 61 Cal.4th at page 802, “a defendant’s personal
involvement must be substantial, greater than the actions of an
ordinary aider and abettor,” to constitute major participation.
Here, Harris’s role “in planning the criminal enterprise that led
to one or more deaths” (Banks, at p. 803) appears to have been
nonexistent, even if the evidence that he encouraged Moore to
seek revenge is credited. Similarly, Harris’s role in making the
Molotov cocktails—“supplying [the] lethal weapons”—was
disputed; and, as discussed, there was no evidence he actually
used them. (Ibid.) Moreover, given Harris’s youth at the time of
the crime, particularly in light of subsequent case law’s
recognition of the science relating to adolescent brain
development (see, e.g., Graham v. Florida (2010) 560 U.S. 48;
Miller v. Alabama (2012) 567 U.S. 460; People v. Gutierrez (2014)
58 Cal.4th 1354), it is far from clear that Harris was actually
aware “of particular dangers posed by the nature of the crime,
weapons used, or past experience or conduct of the other
participants.” (Banks, at p. 803.) On the other hand, several of
the Banks factors clearly point toward Harris as a major
participant in the arson. Even if not present in front of Rivers’s
apartment building, he was near the scene and in a position to
prevent the actual murders; his own actions, at least carrying the
firebombs to the van and perhaps encouraging Moore’s planned
retribution, certainly played a role in the deaths of the victims;
and he apparently fled with Moore after the fire started. (Ibid.)
Thus, determining whether Harris could now be found to have
been a major participant within the meaning of section 189,
subdivision (e)(3), requires factfinding following an evidentiary
hearing pursuant to section 1170.95, subdivision (d).
27
Similarly, although Harris’s jury was instructed reckless
indifference to human life requires proof the defendant was
aware his acts “involved a grave risk of death to an innocent
human being,”14 the Supreme Court in Clark, supra, 63 Cal.4th
at page 617, clarified reckless indifference encompasses a
willingness to assist another in killing to achieve a particular
goal, even if the victim’s death was not specifically intended.
“This definition encompasses both subjective and objective
elements. The subjective element is the defendant’s conscious
disregard of risks known to him or her. But recklessness is not
determined merely by reference to a defendant’s subjective
feeling that he or she is engaging in risky activities. Rather,
recklessness is also determined by an objective standard, namely
what ‘a law-abiding person would observe in the actor’s
situation.’” (Ibid.)
14 CALJIC No. 8.80.1, as given at Harris’s trial, instructed
that the felony-murder special circumstance could be found true
as to a defendant who was not the actual killer and did not act
with an intent to kill only if the defendant “with reckless
indifference to human life and, as a major participant, aided [or]
abetted . . . in the commission of the crime of arson which
resulted in the death of a human being.” The written version of
the instruction explained, “A defendant acts with reckless
indifference to human life when the defendant knows or is aware
that his acts involved a grave risk of death to an innocent human
being.” However, when giving the instruction, the trial court
said, “A defendant acts with reckless indifference to human life
when that defendant knows or is aware that his acts involved a
danger of risk of death to an innocent human being.” Neither the
written nor oral version of the instruction defined “major
participant.”
28
Objectively, firebombing the apartment of a family with
two young children at 9:00 p.m. creates a high risk that someone
may be killed. However, Harris’s subjective willingness to assist
an act of revenge that he understood involved such a grave risk is
not established as a matter of law by the record of conviction.
Again, factfinding following an evidentiary hearing is necessary
to determine whether Harris could be convicted of felony murder
under the current version of section 189, subdivision (e), and,
therefore, is ineligible for relief under section 1170.95.15
DISPOSITION
The order denying Harris’s section 1170.95 petition is
reversed, and the matter remanded with directions to issue an
order to show cause and to proceed consistently with
section 1170.95, subdivision (d).
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
15 The superior court did not consider, and the Attorney
General does not argue on appeal, the significance, if any, of the
jury’s true findings that the murders had been committed by
means of a destructive device pursuant to section 190.2,
subdivision (a)(6).
29