Opinion
B308894
10-18-2021
THE PEOPLE, Plaintiff and Respondent, v. THOMAS BRIDGES, Defendant and Appellant.
Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA240172 Ronald S. Coen, Judge. Affirmed.
Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
In 2004, a jury convicted Thomas Bridges of first degree special circumstances murder and robbery, with gang and firearm enhancements. In 2020, Bridges petitioned for vacation of his murder conviction and resentencing pursuant to Penal Code section 1170.95. After appointing counsel for Bridges and considering briefing from the parties, the trial court denied the petition. Bridges appeals. We affirm.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
We derive the factual and procedural background in part from this Division's unpublished opinion in this case, which is included in the record, and of which we take judicial notice on our own motion. (Evid. Code, §§ 451, 459.)
1. The offenses, Bridges's conviction, and original appeal
In 1998, Tiasha Croslin was Bridges's girlfriend, and they were living together. Reginald Howard, Jesse Singleton, Amar Mobley, Rollin Denem, Claudell Hatter, and Wardell Joe were all members of the 69 East Coast Crips criminal street gang. Bridges was a member of a related gang, the West Covina Neighborhood Crips.
On the morning of November 3, 1998, Bridges, Denem, Hatter, Joe, Singleton, Howard, Mobley, and Croslin met at Hatter's house in Los Angeles. Hatter said he needed money to get a car out of impound, and the group discussed committing a robbery. When the meeting ended, Bridges told Croslin to get into a Buick Regal automobile with Hatter, and she did so. Hatter drove the Buick to the Big Saver Foods Market near Slauson and Compton Avenues in Los Angeles. Croslin understood they were going to commit a robbery. Joe drove to the market in an Oldsmobile Cutlass and waited outside the market. Mobley drove to the market in a Trans-Am automobile and parked nearby.
When they arrived at the market, Croslin and Hatter went inside and Hatter said," 'This is where we're going to hit.'" Croslin and Hatter made a purchase and then left.
Thereafter Bridges, Howard, Denem and Singleton entered the market. Denem produced a gun, ordered everyone to get on the floor, and fired a shot into the ceiling. Howard and one of the other robbers struggled with the security guard, Juan Hernandez; Howard shot and killed him. One of the robbers took Hernandez's gun.
Cashier Marissa A. saw Hernandez struggling with the robbers, and then heard a shot. She ran to the manager's office, but the manager had locked the door before she could enter. Bridges then forced her, at gunpoint, to empty the contents of two cash registers into a plastic bag.
After the robbery, the entire crime team returned to Hatter's residence. Howard, who appeared jittery and nervous, paced and repeatedly said, in a scared manner," 'I killed him, I killed him.'" The robbers argued among themselves, and Bridges and Hatter loudly urged Howard to calm down. Bridges complained that they would have gotten more if Howard had not been" 'so trigger happy.'" The robbers divided the loot obtained, which included money and food stamps. An associate of the 69 East Coast Crips gang, Leonard Jackson, arrived at Hatter's home just as the robbers returned from the crime scene, and they gave him some food stamps obtained in the robbery. When the robbers saw television news reports of the robbery, Bridges and Denem said the police sketches did not look like them, and Denem laughed. Hatter told Singleton to get rid of the Trans Am. After the loot was divided, the perpetrators left the house.
Croslin did not learn Hernandez had been killed until she saw the news on television that night. When Bridges returned home that evening, she confronted him about it. He said," 'Howard was tussling with the security guard and shot him.'" Bridges explained that Howard's job in the robbery had been to distract the security guard while Bridges and Denem or Singleton got money from the safe in the store's office. Bridges said that Denem had worn a hat and a curly wig as a disguise. Hatter's role had been to drive along 58th and indicate to the others that it was okay to rob the market.
Two days after the robbery Croslin was arrested on a federal bank robbery charge, and Jackson was arrested for violating parole.
The crime went unsolved for two years until Jackson, who was at that point serving a 17-year federal drug term, contacted the United States Attorney and offered to assist in hopes of obtaining a reduction of his term. A detective interviewed Jackson in March 2001, and he identified the participants in the robbery. Several months later, Jackson and Bridges were incarcerated together, and Bridges discussed the Big Saver Foods crimes. Bridges said Hatter and Croslin entered the store first to" 'check the move out[.]'" Bridges and Denem intended to force the manager to open the safe at the back of the store, but the manager locked himself inside a room. Bridges heard a shot, then ran with Denem to the front of the market and saw that Howard and Singleton already had fled. Bridges then took food stamps from the cash register. Howard had been armed with a .45-caliber handgun.
Market employees identified Singleton, Bridges, and Howard as the perpetrators. A man who lived nearby when the crimes occurred had observed the three cars parked near the market and saw four men go inside. He identified Croslin, Hatter, and Joe as the persons he had seen in the Buick Regal and the Oldsmobile Cutlass, respectively.
In May 2001, a detective interviewed Croslin, who was in federal custody in Connecticut. She admitted her role in the Big Saver Foods case and identified the participants. She subsequently pled no contest to voluntary manslaughter and robbery in exchange for a 12-year prison term and her truthful testimony. Both Jackson and Croslin ultimately testified at trial.
The jury convicted Bridges, along with Denem, Hatter, and Joe, of special circumstance first degree murder (§§ 187, subd. (a), 190.2, subd. (a)(17)(A)) and two counts of robbery (§ 211). As to the murder and one of the robbery counts, the jury found true a gang allegation (§ 186.22, subd. (b)(1)), as well as the allegation that a principal personally and intentionally discharged a firearm, proximately causing Hernandez's death (§ 12022.53, subds. (c), (d), (e)(1)). The court sentenced Bridges to life in prison without the possibility of parole, plus 25 years to life.
In 2006, a different panel of this Division modified Bridges's sentence but otherwise affirmed the judgment. (People v. Bridges (Jan. 30, 2006, B176263) [nonpub. opn.].)
The court ordered a parole revocation fine stricken, and sentence on count 2, the robbery of murder victim Hernandez, stayed pursuant to section 654.
2. Bridges's 2017 habeas petition
In 2017, after the California Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), Bridges filed a petition for writ of habeas corpus in the trial court, apparently asserting the evidence was insufficient to support the special circumstance finding because he was not a major participant in the robbery who acted with reckless indifference to human life, as those terms were clarified by Banks and Clark. The trial court considered the factors articulated by Banks and by Clark, and the facts as set forth in this Division's opinion in codefendant Howard's direct appeal (People v. Howard (June 1, 2007, B186175) [nonpub. opn.]), and concluded that Bridges was a major participant in the robberies who acted with reckless indifference to human life. Accordingly, it denied the petition.
3. The section 1170.95 petition
In July 2020, after passage of Senate Bill No. 1437 (2017- 2018 Reg. Sess.) (Senate Bill 1437), Bridges filed a petition for vacation of his murder conviction and resentencing. Using a preprinted form, he checked boxes stating that he had been convicted of murder pursuant to the felony-murder rule or the natural and probable consequences doctrine; he was not the actual killer; he did not, with the intent to kill, aid and abet the actual killer, nor was he a major participant in the offense who acted with reckless indifference to human life; the victim was not a peace officer; and he could not now be convicted of murder in light of changes to section 189 effectuated by Senate Bill 1437. He also checked a box requesting that counsel be appointed for him. In a five-page document appended to the petition, Bridges averred that there was no evidence he had acted with malice aforethought.
In support, he attached this court's opinion in People v. Howard, which discussed evidence that Bridges told Jackson the killing was" 'messed up'" and was not supposed to have happened. He also attached the trial court's 2017 order denying his Banks/Clark habeas petition, and the trial court's order denying an earlier habeas petition that had asserted ineffective assistance of counsel and instructional error. As relevant here, that order observed that Bridges was tried on a felony murder theory, not a natural and probable consequences theory.
The trial court appointed counsel for Bridges.
The People filed an opposition to the petition, primarily arguing that the jury's special circumstance finding rendered Bridges ineligible for section 1170.95 relief. The People attached this Division's opinion in People v. Bridges, supra, and the trial court's 2017 order denying the 2017 Banks/Clark habeas petition as exhibits.
Bridges, through counsel, filed a responsive brief. Therein, he argued that the evidence did not show he was a major participant who acted with reckless indifference. He claimed he was not actually present at the scene, the planned robbery was not supposed to involve violence but went awry, the eyewitness identifications of him were inconsistent, and a special circumstance finding rendered before Banks and Clark does not preclude section 1170.95 relief.
On October 8, 2020, after considering the petition, the parties' briefs, the "entire court file," and the opinion in People v. Bridges, supra, the trial court denied the section 1170.95 petition. It reasoned as follows: "Among other crimes, petitioner was convicted of first degree murder. The sole basis of the murder conviction was felony murder as an aider and abettor. A felony-murder special circumstance was found true. In instructing the jury, the court instructed re former CALJIC [No.] 8.80.1. The language in the instruction was pursuant to Penal Code section 190.2(c) and (d). Thus, by their finding, the jury found beyond a reasonable doubt that petitioner was, at the least, a major participant in the underlying felony who acted with reckless indifference to human life. This has been found sufficient to summarily deny a petition under Penal Code section 1170.95; i.e., the petitioner cannot challenge the sufficiency of evidence under Penal Code section 1170.95. [Citations]." "The fact that the case was tried prior to [Banks and Clark] does not entitle petitioner to relief [citations]." The court cited then-recent authority so holding, and acknowledged the existence of contrary appellate authority. It continued: "Although the court is of the opinion that the [former line of authority is] better reasoned, it is noted that on March 1, 2017, the court denied petitioner's petition for writ of habeas corpus under Banks/Clark grounds. . . . [¶] As a matter of law petitioner is not entitled to relief."
Bridges timely appealed the trial court's order.
DISCUSSION
1. Applicable legal principles
a. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019, limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ensure that a person's sentence is commensurate with his or her individual criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842-843; People v. Lewis (2021) 11 Cal.5th 952, 957, 971 (Lewis).)
Prior to Senate Bill 1437's enactment, under the felony-murder rule "a defendant who intended to commit a specified felony could be convicted of murder for a killing during the felony, or attempted felony, without further examination of his or her mental state." (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247-248; People v. Powell (2018) 5 Cal.5th 921, 942.) Similarly, under the natural and probable consequences doctrine, a defendant was "liable for murder if he or she aided and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable consequence of the target offense." (Lamoureux, at p. 248.)
Senate Bill 1437 amended the felony-murder rule by adding section 189, subdivision (e), which provides that a participant in the perpetration of qualifying felonies is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2, subdivision (d). (People v. Gentile, supra, 10 Cal.5th at p. 842.) Senate Bill 1437 also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime."
b. Section 1170.95's petitioning procedure
Senate Bill 1437 also added section 1170.95, which created a procedure whereby persons convicted of murder under a now- invalid felony-murder or natural and probable consequences theory may petition for vacation of their convictions and resentencing. A defendant is eligible for relief under section 1170.95 if he or she meets three conditions: he or she (1) must have been charged with murder by means of a charging document that allowed the prosecution to proceed under a felony murder or natural and probable consequences theory; (2) must have been "convicted of first or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder"; and (3) could no longer be convicted of first or second degree murder due to changes to sections 188 and 189 effectuated by Senate Bill 1437. (§ 1170.95, subd. (a).)
To obtain section 1170.95 relief, the defendant must file a petition with the court that sentenced him or her, averring the foregoing, and must serve it upon the district attorney or the prosecuting agency and the public defender or the attorney who represented petitioner at trial. The petition must contain (1) a "declaration by the petitioner that he or she is eligible for relief under [section 1170.95], based on all the requirements of subdivision (a)"; (2) the superior court case number and year of conviction; and (3) an indication of whether the petitioner requests counsel. If any of this information is missing and cannot be readily ascertained by the court, it may deny the petition without prejudice. (§ 1170.95, subd. (b).)
Recently, our Supreme Court resolved a split of authority in the appellate courts and clarified the proper procedure for the evaluation of a section 1170.95 petition. The defendant is entitled to the appointment of counsel, if requested, upon the filing of a facially sufficient petition, that is, one that makes the necessary averments, without regard to his or her eligibility for relief. (Lewis, supra, 11 Cal.5th at p. 957.) Section 1170.95 contemplates one, rather than two, prima facie reviews, and does not allow for summary denial based on a petitioner's ineligibility prior to the appointment of counsel. (Lewis, at pp. 957, 961-963.) The logical sequence, Lewis reasoned, is as follows: "a complying petition is filed; the court appoints counsel, if requested; the issue is briefed; and then the court makes one (not two) prima facie determination." (Id. at p. 966.)
After the appointment of counsel and the opportunity for briefing, when determining whether the defendant has made a prima facie showing of entitlement to relief, the court may consider the record of conviction. (Lewis, supra, 11 Cal.5th at pp. 957, 960, 970-971.) "Appellate opinions . . . are generally considered to be part of the record of conviction." (Id. at p. 972.) "The record of conviction will necessarily inform the trial court's prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute's overall purpose: to ensure that murder culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process." (Id. at p. 971.)
"While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citation.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citation.] 'However, 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."' [Citation.]" (Lewis, supra, 11 Cal.5th at p. 971.) In reviewing any part of the record "at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.]" (Id. at p. 972.)
If the trial court determines that the petitioner has made such a prima facie showing, it must issue an order to show cause and "then must hold a hearing 'to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' (§ 1170.95, subd. (d)(1).)" (Lewis, supra, 11 Cal.5th at p. 960.) In making that determination, the prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence. (§ 1170.95, subd. (d)(3); Lewis, at p. 960.) At the subdivision (d) hearing, the prosecution has the burden to prove the petitioner's ineligibility beyond a reasonable doubt. (§ 1170.95, subd. (d)(3).)
2. The trial court followed the correct procedure and did not engage in impermissible factfinding
In his opening brief, Bridges argued that the trial court erred by relying on the record of conviction "and the facts stated" in this court's prior opinion, and by making a "factual determination" prior to a section 1170.95, subdivision (d)(3) evidentiary hearing. In his supplemental brief, he reiterates these contentions.
We invited the parties to submit supplemental briefs after issuance of Lewis, and they have done so.
We disagree. Although its ruling predated our Supreme Court's decision in Lewis, the trial court precisely followed the procedure Lewis described. After receiving the section 1170.95 petition, the court appointed counsel; the issues were briefed by the parties; and the court made a single prima facie determination, at which it ruled, as a matter of law, that Bridges was ineligible for relief. (See Lewis, supra, 11 Cal.5th at p. 966.) The court did not err by examining the record of conviction; as Lewis explained, a trial court may do so at the prima facie stage. (Id. at pp. 970-971.)
Contrary to Bridges's arguments, it is clear from the court's order that it did not weigh or rely upon the facts described in this court's 2006 opinion. It did not evaluate the trial evidence or engage in factfinding at all. Instead, its ruling was based on the jury's verdicts and the instructions given. Nor was the court required to accept Bridges's assertions that he was not a major participant in the crime and did not act with reckless indifference to human life. While a court cannot generally reject a petitioner's factual allegations on credibility grounds at the prima facia stage, it may do so" 'if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition . . . ." '" (Lewis, supra, 11 Cal.5th at p. 971.) As we explain post, such was the case here: the jury's verdict on the special circumstance allegation justified the court's rejection of the resentencing petition's allegations.
3. The jury's true finding on the special circumstance allegation precludes section 1170.95 relief as a matter of law
To be eligible for resentencing, Bridges was required to show that he "could not be convicted of first or second degree murder because of changes to Section 188 or 189" made by Senate Bill 1437. (§ 1170.95, subd. (a)(3).) Under section 189, as amended, a defendant can be convicted of felony murder if he was the actual killer; acted as a direct aider and abettor with the intent to kill; or was a major participant in the underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e).)
As noted, the jury found true the special circumstance allegation that the murder was committed during a robbery. (§ 190.2, subd. (a)(17)(A).) In denying the section 1170.95 petition, the trial court observed that Bridges's jury had been instructed with CALJIC No. 8.80.1, and Bridges does not challenge that finding. The standard version of CALJIC No. 8.80.1 provides in pertinent part: "If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider or abettor, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree, or with reckless indifference to human life and as a major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in the commission of the crime" which resulted in the victim's death.
The jury's true finding on the special circumstance therefore demonstrates Bridges is ineligible for section 1170.95 relief as a matter of law. As recently explained by People v. Simmons: "Section 189, as amended by Senate Bill No. 1437, . . . now permits a felony-murder conviction only when specified facts relating to the defendant's individual culpability have been proved. Among such circumstances, a felony-murder conviction is permissible if the defendant 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. (§ 189, subd. (e).) [In Simmons], the jury found true a felony-murder special circumstance pursuant to section 190.2, subdivision (a)(17)(A), which imposes a sentence of death or life without the possibility of parole for a murder committed during the commission, or attempted commission, of a robbery. [Citation.] To make such a finding, the jury was required to find that petitioner acted 'with reckless indifference to human life and as a major participant' in aiding or abetting the commission of the underlying felony. [Citations.] In other words, '[t]he language of the special circumstance tracks the language of Senate Bill [No.] 1437 and the new felony-murder statutes.' [Citation.] Thus, by finding the special circumstance true, the jury made the requisite findings necessary to sustain a felony-murder conviction under the amended law. Petitioner is therefore ineligible for resentencing under section 1170.95 as a matter of law." (People v. Simmons (2021) 65 Cal.App.5th 739, 746-747, review granted Sept. 1, 2021, S270048; see People v. Galvan (2020) 52 Cal.App.5th 1134, 1141, review granted Oct. 14, 2020, S264284 ["By finding a special circumstance allegation true, the jury makes precisely the same finding it must make in order to convict a defendant of felony murder under the new law. Because a defendant with a felony-murder special circumstance could still be convicted of murder, he is ineligible as a matter of law to have his murder conviction vacated."]; People v. Jones (2020) 56 Cal.App.5th 474, 482, review granted Jan. 27, 2021, S265854; People v. Gomez (2020) 52 Cal.App.5th 1, 15, review granted Oct. 14, 2020, S264033; People v. Murillo (2020) 54 Cal.App.5th 160, 167-168, review granted Nov. 18, 2020, S264978; People v. Allison (2020) 55 Cal.App.5th 449, 457; People v. Nunez (2020) 57 Cal.App.5th 78, 91, review granted Jan. 13, 2021, S265918.)
Bridges argues that the jury's special circumstance finding is not preclusive in his case, however, because it predated our Supreme Court's decisions in Banks and Clark. "Banks and Clark 'clarified "what it means for an aiding and abetting defendant to be a 'major participant' in a crime who acted with a 'reckless indifference to human life.'"' [Citation.] Banks identified certain factors to consider in determining whether a defendant was a major participant; Clark identified factors to guide the determination of whether the defendant acted with reckless indifference to human life." (People v. Gomez, supra, 52 Cal.App.5th at p. 13, fn. 5, rev.gr.) In light of Banks and Clark, Bridges argues, the jury's special circumstance finding is "not dispositive, or even relevant" to the question of his section 1170.95 eligibility.
The appellate courts are split on the question of whether a pre-Banks and Clark special circumstance finding makes a petitioner ineligible for section 1170.95 relief as a matter of law, and the issue is on review before our Supreme Court. (See People v. Strong (S266606, review granted March 10, 2021); People v. Jones, supra, 56 Cal.App.5th at pp. 478-479, rev.gr. [collecting cases].)
Some courts have concluded that such a special circumstance does not, by itself, render a petitioner ineligible for relief. (See People v. Torres (2020) 46 Cal.App.5th 1168, 1178, review granted June 24, 2020, S262011.) Torres reasoned that Banks and Clark "construed section 190.2, subdivision (d) in a significantly different, and narrower manner than courts had previously construed the statute." (Id. at p. 1179.) "Accordingly, in determining if [petitioner] could be convicted today of first degree murder, we cannot simply defer to the jury's pre-Banks and Clark factual findings that [petitioner] was a major participant who acted with reckless indifference to human life as those terms were interpreted at the time." (Ibid.) "No court has affirmed the special circumstances findings at issue post-Banks and Clark. There is therefore a possibility that [the petitioner] was punished for conduct that is not prohibited by section 190.2 as currently understood, in violation of [petitioner's] constitutional right to due process." (Id. at p. 1180, fn. omitted; see People v. Gonzalez (2021) 65 Cal.App.5th 420, 429-431, review granted Aug. 18 2021, S269792; People v. Harris (2021) 60 Cal.App.5th 939, 957, review granted April 28, 2021, S267802 [pre-Banks/Clark special circumstance finding, without more, does not preclude relief under section 1170.95]; People v. Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835; People v. York (2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954 [pre-Banks/Clark special circumstance finding "cannot preclude eligibility for relief under . . . section 1170.95 as a matter of law, because the factual issues that the jury was asked to resolve" in such a case "are not the same factual issues our Supreme Court has since identified as controlling."]; cf. People v. Secrease (2021) 63 Cal.App.5th 231, 247, 254-256, 259-261, review granted June 30, 2021, S268862 [adopting a "middle ground" in which pre-Banks/Clark special circumstance does not bar section 1170.95 relief as a matter of law absent a judicial determination that the evidence was sufficient under those cases, but requiring courts hearing the petition and any ensuing appeal to determine sufficiency of the evidence under Banks and Clark]; People v. Pineda (2021) 66 Cal.App.5th 792, 795, 801, review granted Sept. 29, 2021, S270513 [following Secrease]; People v. Arias (2021) 66 Cal.App.5th 987, 991, 1003-1004, review granted Sept. 29, 2021, S270555.)
As noted, other courts hold that a pre-Banks and Clark special circumstance finding bars section 1170.95 relief as a matter of law. They reason that section 1170.95 was not meant to be an avenue for an attack on the sufficiency of the evidence to support a special circumstance finding (see, e.g., People v. Allison, supra, 55 Cal.App.5th at pp. 453, 461), and a defendant seeking to challenge the sufficiency of the evidence to prove a pre-Banks and Clark major participant or reckless indifference finding must do so via a petition for writ of habeas corpus. (People v. Gomez, supra, 52 Cal.App.5th at pp. 16-17, rev.gr.; People v. Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr.; People v. Jones, supra, 56 Cal.App.5th at p. 483, rev.gr.; People v. Nunez, supra, 57 Cal.App.5th at p. 96, rev.gr.)
In support of this view, some cases point out that Banks and Clark did not state a new rule of law, but merely clarified the already-existing meaning of "major participant" and "reckless indifference," terms that do not have specialized definitions and are interpreted as used in common parlance. (People v. Allison, supra, 55 Cal.App.5th at pp. 458-459; People v. Jones, supra, 56 Cal.App.5th at pp. 482, 484, rev.gr.; People v. Nunez, supra, 57 Cal.App.5th at p. 92, rev.gr.) While optional language was added to the pattern jury instructions after Banks and Clark, "no mandatory language or material changes were made to the CALCRIM special circumstances instructions," and there is no requirement that juries be instructed on the Banks/Clark clarifications. (Nunez, at pp. 92-93; Jones, at p. 484; Allison, at pp. 458-459.) Thus, the argument that a pre-Banks/Clark special circumstance finding must be presumed invalid exaggerates the impact of Banks and Clark. (See Allison, at p. 458; Jones, at p. 484.) There is "no basis to conclude as a general matter that a pre-Banks and Clark jury was instructed differently than a post-Banks and Clark jury, or resolved different factual issues, answered different questions, or applied different standards." (Nunez, at p. 94).
As People v. Simmons recently observed, "Banks and Clark did not state a new rule of law. Rather, they relied on the United States Supreme Court's decisions in Enmund v. Florida (1982) 458 U.S. 782 and Tison v. Arizona (1987) 481 U.S. 137 to clarify principles that had long been in existence at the time petitioner was convicted." (People v. Simmons, supra, 65 Cal.App.5th at p. 749, rev. gr.) "To the extent Banks and Clark illuminated factors a fact finder might consider in determining whether a defendant was a major contributor who acted with reckless indifference to human life, they drew those factors from Enmund and Tison. [Citations.] These principles existed when petitioner was convicted and, absent a determination on direct appeal or in habeas that the evidence was insufficient to support the jury's finding, there is no basis to conclude petitioner's jury applied different standards than those described in Banks and Clark." (Ibid.)
Additionally, this line of authority reasons that the opposite approach is inconsistent with the plain language of section 1170.95, because a defendant claiming ineligibility based on Banks and Clark does not meet the statutory requirement that he or she cannot be convicted because of changes to sections 188 or 189 made by Senate Bill 1437. (People v. Jones, supra, 56 Cal.App.5th at p. 484, rev.gr.) "In order to be eligible for resentencing, a defendant must show that he or she 'could not be convicted of first or second degree murder because of changes to Section[s] 188 or 189 made effective' as part of Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).) [¶] . . . Although [petitioner] is asserting that he could not now be convicted of murder, 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 in an underlying felony and acted with reckless indifference to human life." (People v. Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr.; People v. Murillo, supra, 54 Cal.App.5th at p. 168, rev.gr.; Allison, supra, 55 Cal.App.5th at p. 460; People v. Nunez, supra, 57 Cal.App.5th at pp. 94-95, rev.gr.)
Further, in concluding that the proper vehicle to challenge a pre-Banks and Clark special circumstance finding is a petition for writ of habeas corpus, courts point to the different burdens involved in a habeas petition and a section 1170.95 petition. A defendant challenging a pre-Banks/Clark special circumstance finding on direct appeal or by means of a writ of habeas corpus must show that the record contains insufficient evidence to prove he or she acted as a major participant or with reckless indifference. (People v. Jones, supra, 56 Cal.App.5th at pp. 482- 483, 485, rev.gr.; People v. Galvan, supra, 52 Cal.App.5th at pp. 1142-1143, rev.gr.) "By contrast, a petitioner who demonstrates a prima facie case for relief under section 1170.95 has shifted the burden to the People to prove beyond a reasonable doubt that they are ineligible for resentencing (that is, they still could be convicted of murder despite the change to the felony-murder rule in § 189). [Citation.] . . . . [T]he Torres/Smith/York line of cases would read into section 1170.95 a new procedure allowing petitioners to ignore a special circumstance finding-no matter how well supported in the record-as well as the recognized method of challenging it. Such petitioners would be allowed to relitigate a prior jury finding at an evidentiary hearing where the prosecution bears the burden of proving the truth of the finding, beyond a reasonable doubt, a second time." (Jones, at p. 485.) Allowing petitioners to challenge a special circumstance finding via a section 1170.95 petition would give them an advantage over similarly situated defendants, based on the date of their convictions. (Galvan, at pp. 1142-1143; see People v. Nunez, supra, 57 Cal.App.5th at pp. 96-97, rev.gr.)
Such a procedure is inconsistent with the Legislature's intent. "The Legislature made plain that its purpose in enacting section 1170.95 was to give defendants the benefit of the amendments to sections 188 and 189 in the absence of a factual basis for a murder conviction in light of the statutory revisions. But there is no indication in the statute's text or history of any legislative intent to permit defendants to challenge their murder convictions by attacking prior findings of fact." (People v. Nunez, supra, 57 Cal.App.5th at p. 95, rev.gr.; People v. Allison, supra, 55 Cal.App.5th at p. 461.)
While we acknowledge that both of the foregoing lines of authority are not without force, we find more persuasive those cases holding that a jury's section 190.2, subdivision (a)(17) special circumstance finding precludes relief as a matter of law. Accordingly, we conclude that the record of conviction reflects Bridges's ineligibility as a matter of law, without the need for factfinding or credibility determinations, and the petition was properly denied. (See Lewis, supra, 11 Cal.5th at p. 971.)
In light of our conclusion, we do not reach the People's argument that even if the special circumstance finding is not automatically preclusive, we may conduct our own evaluation of the evidence to determine whether it supports such a finding in light of Banks and Clark, or Bridges's contention that the evidence was insufficient. We also do not reach the question of whether the trial court's 2017 denial of the habeas petition collaterally estopped or otherwise precluded Bridges from relitigating the validity of the special circumstance finding, as the People contend, or whether the habeas court's reliance on the facts stated in the prior appellate opinion was problematic, as Bridges asserts.
DISPOSITION
The order is affirmed.
We concur: EGERTON, J., HILL, J. [*]
[*] Judge of the Santa Barbara Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.