Opinion
E076440
10-01-2021
THE PEOPLE, Plaintiff and Respondent, v. LUIS RAUL DIAZ, Defendant and Appellant.
Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Lynne G. McGinnis and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF1302087 John D. Molloy, Judge. Affirmed.
Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Lynne G. McGinnis and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER Acting P. J.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
In 2014, a jury convicted defendant and appellant Luis Raul Diaz of first degree murder and found true the special circumstances that the murder occurred during the commission of a kidnapping under Penal Code sections 187 and 190.2, subdivision (a)(17)(B). The trial court found true that defendant had a prior serious felony conviction under § 667, subdivision (a). Thereafter, the trial court sentenced defendant to life without the possibility of parole for the murder, plus five years for the prior serious felony conviction.
All further statutory references are to the Penal Code unless otherwise specified.
On January 22, 2016, after defendant appealed, we affirmed the judgment in People v. Diaz [unpub. opn. 2016] E062324.
On September 21, 2020, defendant filed a petition for resentencing under section 1170.95. The trial court appointed counsel to represent defendant. The People filed opposition. On January 8, 2021, the trial court summarily denied defendant's petition.
On January 14, 2021, defendant filed a timely notice of appeal from the denial of his section 1170.95 petition. On February 3, 2021, defendant filed a second notice of appeal.
The facts are taken from the unpublished opinion in case No. E062324.
1. “DISAPPEARANCE OF THE VICTIM AND DISCOVERY OF HIS SKELETAL REMAINS
“Destiny Ayala was the victim's sister. She last saw the victim in July 2011. She exchanged text messages with him in August 2011. She became concerned in early September when she had not heard from him. She went to his house in Palm Springs but he was not there. She filed a missing person's report with the Palm Springs Police Department.
“On December 19, 2011, a Riverside County Sheriff's deputy responded to a call that skeletal remains had been found in the area of Sky Valley. In order to access the area, the deputy had to use a dirt road. The area where the skeletal remains were found was remote, open desert. The remains were scattered, most likely due to animal activity. There were two burn areas near the remains. A melted belt buckle, a fired projectile, a live round of ammunition, and a burned T-shirt were found by the remains.
“Sergeant Deborah Gray of the Riverside County Coroner's Office was a forensic anthropologist trained to examine skeletal remains. She was called to the Sky Valley area to examine the skeletal remains. She determined that all the bones found belonged to one person. The person had been deceased between two weeks and six months. The person was likely male, White or Hispanic, and between 20 to 23 years old.
“Riverside County Sheriff's Investigator Martin Alfaro was the lead investigator on the case. Based on DNA identification and dental comparison, it was determined the remains belonged to the victim. An autopsy was performed on the victim's remains. The victim had a semicircular defect in his skull, which was likely the result of a bullet wound.”
2. “ASHLEY PRIETO'S TESTIMONY
“Ashley Prieto was living in Morongo during the summer of 2011. She knew De Los Santos from high school. After they graduated, Prieto started buying drugs from De Los Santos. She had known the victim since 2010; she had purchased drugs from him. She also knew defendant because he dated her friend, [C.A.].
“In August 2011, Prieto received a telephone call from the victim. He told her that he was in a car with De Los Santos and defendant on the way to Las Vegas. She was concerned because defendant and De Los Santos were heavily involved in drug sales and the victim was not as heavily involved. The victim went missing.
“Several months later, in approximately October, Prieto was in Palm Springs with De Los Santos. She and De Los Santos were smoking marijuana. She asked him what had happened to the victim. De Los Santos told her that he believed the victim had broken into his house and tied his girlfriend up during a robbery. As a result, De Los Santos told Prieto that he took the victim out to the desert and shot him in the head. De Los Santos told her that the victim had confessed to being involved in the robbery of De Los Santos's girlfriend so he deserved to be killed. Prieto felt that De Los Santos was proud to have killed the victim.
“On December 28, 2011, Investigator Alfaro interviewed Prieto. Prieto told him that De Los Santos had told her he shot the victim in the head. The information that the victim had been shot in the head had not been released to the public. Prieto would not have known the information from another source.”
3. “WALDO BARKER'S TESTIMONY
“Waldo Barker was arrested during an automobile theft investigation; he told the arresting officer that he knew about a murder involving defendant and De Los Santos. Investigator Alfaro interviewed him. Barker was made no promises of leniency in the automobile theft case.
”Barker was unavailable for trial because he invoked his Fifth Amendment right not to testify; his preliminary hearing testimony was read to the jury.”
“Barker had a 2004 conviction for burglary, a conviction for automobile theft, and a conviction for possession of methamphetamine.”
“Barker met De Los Santos in 2011. Barker was a mechanic and he worked on De Los Santos's car. Barker and De Los Santos used drugs together. Barker had met defendant through De Los Santos.
“Sometime in August 2011, around 4:00 a.m., Barker went to a condominium in Cathedral City, where De Los Santos lived, to eat and get ‘high.' Defendant was with De Los Santos. While Barker was at the house, the victim called De Los Santos looking for heroin. Around 5:30 a.m., De Los Santos left the house to get the heroin and Barker went home. Barker was unsure if defendant also went home.
“De Los Santos called Barker around 7:30 a.m. and told him to come back to the condominium. When Barker got to the condominium, he saw that the front door jamb had been broken and the place was ransacked. De Los Santos was upset. He had a handgun in his waistband. De Los Santos asked Barker where he had been since he had left the house. De Los Santos told Barker that he had been robbed. Barker advised De Los Santos that he had been working; De Los Santos told him that he believed him. He said he knew who had done it and that he already had him.
“De Los Santos took Barker to his bedroom. The room was ransacked. In a nearby bathroom, he saw the victim; the victim had a split lip and a black eye. The victim repeatedly told De Los Santos that he had not committed the burglary. De Los Santos had Barker sit with the victim while he went to do something. The victim had blood on his shirt.
“De Los Santos returned and told the victim to put on a hooded sweatshirt, a hat and sunglasses. He told the victim that he was going to take him home. The victim continued to plead with De Los Santos, advising him he had not committed the burglary. De Los Santos told Barker to watch the house for him because the front door was broken.
“De Los Santos walked the victim out of the house while holding the handgun. De Los Santos told the victim not to do anything stupid and not be loud, and ‘everything will be cool.' De Los Santos gave Barker a look that Barker interpreted ‘like a wink,' that he was not going to take the victim home.
“De Los Santos and the victim left in a green sedan that was driven by defendant. Defendant had been outside waiting in the car; De Los Santos and the victim got in the backseat.
“Barker observed spots of blood on the hallway floor. De Los Santos called Barker and asked him to try to clean up the blood. Barker tried to clean up the blood but was unsuccessful. Barker went home around 8:45 a.m. De Los Santos was still not home.
“Barker saw De Los Santos and defendant several days later. Barker told defendant that the victim's girlfriend was worried that she had not heard from the victim. Defendant told Barker that they had driven the victim out to the desert in Sky Valley. The victim kept asking De Los Santos not to hurt him. Defendant claimed he tried to convince De Los Santos not to hurt the victim, and to convince the victim to tell the truth about the burglary. Defendant claimed that De Los Santos ‘snapped.' Defendant walked away and De Los Santos shot the victim. De Los Santos told Barker that the victim had ‘told more truth than he should have' and had admitted his involvement in the burglary. De Los Santos admitted to Barker that he had lost it and shot the victim. They left the victim's body tied to a post.
“Barker directed Investigator Alfaro to the condominium where De Los Santos had lived. De Los Santos's no longer lived in the condominium. The front door jamb showed signs of damage. There were bleach stains on the carpet. Chemical tests were done on some of the walls and carpet, and were presumptive for blood. During a search of De Los Santos's car, police found shotgun shells. Police also found a loaded rifle, and.40-caliber ammunition in De Los Santos's new apartment.”
4. “[C.A.]'S TESTIMONY
“[C.A.] was defendant's girlfriend in 2010 and 2011. She and defendant used drugs when they were dating, including heroin and methamphetamine. [C.A.] and defendant moved into an apartment together in Palm Springs. The victim would come to the apartment approximately once each week. They would all do drugs together. [C.A.] met De Los Santos in high school; he was her drug supplier. In 2011, defendant drove several different cars, including his mother's Toyota sedan. At the time of the victim's murder, defendant had been working with De Los Santos selling drugs for him.
“The last time [C.A.] saw the victim was in August 2011; she became concerned when she had not heard from him in a week. [C.A.] asked defendant whether he had talked to the victim recently. Defendant told her he had not talked to the victim and that she was not to mention the victim any more. She thought this was strange because they had been friends. [C.A.] heard rumors about what had happened to the victim. [C.A.] asked defendant if he had killed the victim, and he claimed he had nothing to do with it. In a pretrial interview, [C.A.] had claimed that when she asked defendant about the victim, he told her to ‘stay the fuck out' of the disappearance and was adamant that she not mention the victim's name.
“During the investigation, Detective Alfaro discovered that defendant was in prison. No search of defendant's home could be made because of his incarceration. The parties stipulated that defendant pleaded guilty in Riverside County on September 30, 2011, to one felony count of possession for sale of a controlled substance. He was sentenced to two years eight months in prison.”
DISCUSSION
A. THE TRIAL COURT PROPERLY FOUND DEFENDANT INELIGIBLE FOR RELIEF UNDER SECTION 1170.95
We are aware of the Supreme Court's recent opinion in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), addressing the appropriate stage in section 1170.95 proceedings for appointment of counsel. This is not an issue in this case because the trial court appointed counsel for defendant, the parties briefed the petition, and the trial court held a hearing to determine whether defendant made a prima facie case for relief.
Defendant contends that the trial court erred in finding him ineligible for relief under section 1170.95 without issuing an order to show cause and conducting an evidentiary hearing. For the reasons set forth post, we find that the trial court properly found defendant ineligible for relief under section 1170.95.
1. LEGAL BACKGROUND
Effective January 1, 2019, Sen. No. 1437 was enacted to “amend the felony-murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It accomplished this by amending section 188, which defines malice, to add a requirement that all principals to a murder must act with express or implied malice to be convicted of that crime. (Stats. 2018, ch. 1015, § 2, subd. (a).) It also amended section 189, which defines the degrees of murder, by adding a condition to the felony-murder rule. Henceforth, in order to be convicted of felony murder, a defendant who was neither the actual killer nor a direct aider and abettor to the murder must have been a major participant in the underlying felony who acted with reckless indifference to human life. (Stats. 2018, ch. 1015, § 3, subd. (d)(3); see Lewis, supra, 11 Cal.5th at pp. 959-960; People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
“In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill 1437 added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 959.) Thus, section 1170.95 allows those “convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts.” (§ 1170.95, subd. (a).) The section goes on to describe what must be included in a petition for resentencing, and sets forth the procedure to be followed by a trial court upon receiving such a petition.
In its initial review of whether a petitioner has made a threshold showing that he or she falls within the provisions of section 1170.95, the court examines whether the petitioner has stated eligibility for relief. A petitioner must allege: (1) an accusatory pleading was filed against him or her allowing prosecution under the felony-murder rule or the natural and probable consequences doctrine (§ 1170.95, subd. (a)(1)); (2) he or she was convicted of first or second degree murder following a trial, or pleaded guilty to first or second degree murder in lieu of a trial at which he could have been so convicted (id., subd. (a)(2)); and (3) he or she could not today be convicted of first or second degree murder because of the 2019 amendments to sections 188 and 189 (id., subd. (a)(3)).
If the petitioner meets this facial showing of eligibility, the court must appoint counsel and entertain briefing from the prosecutor and appointed counsel. If, after briefing, the petitioner has established a prima facie case he or she is entitled to relief, i.e., if a showing regarding his or her eligibility has been made, the court must issue an order to show cause, and thereafter hold a full hearing to determine whether petitioner is entitled to relief. (§ 1170.95, subds. (c) & (d)(1); see also Lewis, supra, 11 Cal.5th at pp. 959-960.) “If the trial court determines that a prima facie showing for relief has been made, the trial court issues 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.' [Citation.] ‘The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.' [Citation.] At the hearing stage, ‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Lewis, at p. 960.)
We apply a de novo standard of review to a lower court's denial of a defendant's section 1170.95 petition. (People v. Verdugo (2020) 44 Cal.App.5th 320, 328, fn. 8 (Verdugo), review granted March 18, 2020, S260493; cf. People v. Blackburn (2015) 61 Cal.4th 1113, 1123 [statutory construction questions are reviewed de novo].)
2. ANALYSIS AND APPLICATION
In this case, a jury convicted defendant of first degree murder on the theory of felony murder and found the special circumstance true in 2014. After defendant appealed his underlying case and we affirmed the judgment in full in case No. E062324, defendant filed a section 1170.95 petition in 2020. On January 8, 2021, at the hearing on the petition, the People noted that “[t]his was an LWOP case with a special circumstance that required an intent to kill, and it was affirmed on appeal, so there's an intent to kill finding in the record existing. Plus, it was-even if major participant and reckless indifference [were] relevant in this case, this was a 2016 appellate opinion, which is post Banks.” The court responded: “Well-and I think the overwhelming majority of the opinions that I have seen I'll say in the last six months, even from our own DCA who previously opined something slightly different, is that if there is a special circumstance that has been-that has been found true, the appropriate remedy if it is a Banks/Clark analysis is to challenge that byway of writ of habeas corpus, not a 1170.95 petition. I am inclined to summarily deny this unless, [defense counsel], you tell me you don't believe the special was found true.” Defense counsel responded that he did not “have information whether it was found true or not, ” but asked for a continuance so this issue could be researched.
The People and the trial court verified via reviewing the sentencing memorandum from the underlying case that the jury found true the kidnapping special circumstance. Thereafter, the trial court noted that the “[c]ourt's own records do reflect a conviction for the kidnap special circumstance.” Therefore, the court found defendant ineligible for relief under section 1170.95 and summarily denied the petition.
On appeal, defendant contends that he “was deprived of due process and a fair hearing by the trial court's error in summarily denying his 1170.95 petition solely on the basis of the pre-Banks special circumstance finding.” (All caps. omitted.)
Recently, in People v. Jones (2020) 56 Cal.App.5th 474 (Jones), review granted January 27, 2021, S265854, this court rejected a similar contention. (Id. at pp. 482-485.) In Jones, we held that “[a] petitioner with a pre-Banks/Clark finding faces the same bar to relief under section 1170.95 as a petitioner with a post-Banks/Clark finding. This is because Banks and Clark did not create a new rule of law, but rather ‘clarified' the already-existing meaning of the phrases ‘major participant' and ‘reckless indifference to human life' for purposes of special circumstance allegations under section 190.2, subdivision (d).” (Id. at p. 482.) Therefore, “a special circumstance finding under section 190.2, subdivision (d) [renders a petitioner ineligible] for relief under section 1170.95 as a matter of law. This is because a jury has already found them to have satisfied the new definition of felony murder under amended section 189. Although they were not the actual killer, a jury found them to have been a major participant in the underlying felony who acted with reckless indifference to human life.” (Id. at p. 482.)
We recognize that there is a split of authority on (1) whether a defendant must first seek relief under Banks/Clark through a habeas petition before filing a section 1170.95 petition (Jones, supra, 56 Cal.App.5th at pp. 482-483), and (2) the issue of whether a felony-murder special circumstance finding under section 190.2, subdivision (a)(17), made before Banks and Clark precludes a defendant from making a prima facie showing of eligibility for relief under section 1170.95 is currently pending before the Supreme Court. (People v. Strong (Dec. 18, 2020, C091162) , review granted March 10, 2021, S266606.)
Courts, including our court, which have held that a pre-Banks and Clark felony-murder special circumstance finding bars section 1170.95 resentencing relief, have reasoned that Banks and Clark merely clarified the law as it always was. (Jones, supra, 56 Cal.App.5th at pp. 482-484; accord, People v. Nunez (2020) 57 Cal.App.5th 78, review granted January 13, 2021, S265918; People v. Allison (2020) 55 Cal.App.5th 449.) These courts further note that our Supreme Court does not require juries to be instructed on the Banks and Clark clarifications. “Rather, while CALCRIM No. 703 now includes optional language drawn from Banks and Clark regarding the factors a jury may consider, ‘[t]he bench notes to the instruction state that Banks “stopped short of holding that the court has a sua sponte duty to instruct on those factors, ” and Clark “did not hold that the court has a sua sponte duty to instruct on those factors.”' ” (Nunez, at pp. 92-93; accord, Jones, at p. 484; Allison, at pp. 458-459.) Thus, these courts found “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.)
These courts have also held that an attack on a special circumstance finding in a section 1170.95 proceeding effectively constitutes a collateral attack on the judgment. (People v. Galvan (2020) 52 Cal.App.5th 1135, 1142, review granted October 14, 2020, S264284; People v. Gomez (2020) 52 Cal.App.5th 1, 16.) According to these courts, a petitioner who wishes to argue the special circumstance finding is invalid under current law must first seek to invalidate that finding through a petition for writ of habeas corpus before seeking resentencing pursuant to section 1170.95. (Galvan, at p. 1142; Gomez, at p. 17; Jones, supra, 56 Cal.App.5th at p. 485.) These courts reason that a contrary interpretation “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.)
Moreover, “in the wake of Banks and Clark, no mandatory language was added to the CALCRIM instructions on special circumstances under section 190.2, subdivision (d). Optional language describing the Banks and Clark factors was added. (CALCRIM No. 703.)... [¶] [However, ] the optional language that was added to the CALCRIM instructions in light of Banks and Clark does not require the jury to consider any additional questions or resolve any additional issues. As to reckless indifference, the optional language states, ‘When you decide whether the defendant acted with reckless indifference to human life, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant acted with reckless indifference to human life. Among the factors you may consider are,' followed by a list of the factors identified in Clark. (CALCRIM No. 703.) The optional language concerning major participant is identical. The only requirement imposed on the jurors is that they consider all the evidence. Everything else is optional (the jury ‘may' consider the listed factors, among others). (CALCRIM No. 703.) [¶]... The issues resolved and questions answered by juries before and after Banks and Clark will be exactly the same.” (Jones, supra, 56 Cal.App.5th at pp. 486-487 (conc. opn. of Menetrez, J.).)
On the other hand, other courts that have found a special circumstance finding insufficient to render a petitioner ineligible for relief have reasoned that Banks and Clark “construed section 190.2 in a significantly different, and narrower manner than courts had previously construed the statute.” (People v. Torres (2020) 46 Cal.App.5th 1168, 1179, review granted June 24, 2020, S262011; accord, People v. Harris (2021) 60 Cal.App.5th 939, 958, review granted April 28, 2021, S267802.) Thus, these courts surmised that a petitioner with a pre-Banks and Clark special circumstance finding may have been convicted based on “conduct that is not prohibited by section 190.2 as currently understood.” (Torres, at p. 1180; accord, Harris, at p. 948; People v. York (2020) 54 Cal.App.5th 250, 258, review granted November 18, 2020, S264954; People v. Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835.) To the extent the jury's finding on a felony-murder special circumstance is legally insufficient under Banks and Clark, it cannot refute a prima facie showing of entitlement to resentencing relief. (People v. Secrease (2021) 63 Cal.App.5th 231, 256.) Accordingly, in considering whether a petitioner is entitled to relief pursuant to section 1170.95, the trial court must first determine whether “the evidence presented at trial was sufficient to support the felony-murder special-circumstance finding under Banks and Clark.” (Secrease, at p. 264.)
Notwithstanding the conflict in authority between the courts of appeal, unless and until the Supreme Court tells us otherwise, we adhere to our opinion in Jones, supra, 56 Cal.App.5th 474. (Cal. Rules of court, rule 8.1115(e).) However, as we suggested in Jones, supra, at pages 478 through 479, a person in defendant's position is not wholly without a remedy. He or she may challenge prior special circumstance findings in a habeas proceeding. (See, e.g., In re Scoggins (2020) 9 Cal.5th 667, 676-683
Therefore, we conclude that the trial court properly denied defendant's section 1170.95 petition.
DISPOSITION
The order denying defendant's section 1170.95 petition is affirmed.
I concur: SLOUGH J.
RAPHAEL, J., Dissenting.
I would remand this case for an evidentiary hearing pursuant to Penal Code section 1170.95, subdivision (d).
Undesignated statutory references are to the Penal Code.
I
Acting as the driver, Petitioner Luis Raul Diaz joined Andrew Michael De Los Santos in kidnapping their friend, Shane Ayala. As we summarized the crime in our opinion in Diaz's direct appeal, De Los Santos suspected that Ayala had robbed De Los Santos's condominium; De Los Santos then badly beat Ayala and walked him at gunpoint to a car that Diaz was driving. (Maj. opn., ante, at p. 6.) They drove to a remote desert location where De Los Santos shot and killed Ayala. In our description of the facts, the only information about Diaz's role in the shooting itself is that Diaz told a third party (witness Waldo Barker) that he tried to convince De Los Santos not to hurt Ayala, but De Los Santos “snapped, ” Diaz walked away, and De Los Santos killed Ayala. (Maj. opn., ante, at p. 7.) The same witness further testified that De Los Santos admitted “that he had lost it and shot the victim.” (Ibid.) Another witness (Ashley Prieto) apparently implicated only De Los Santos in the killing, testifying that De Los Santos told her that he shot the victim in the head. (Maj. opn., ante, at pp. 4-5.)
De Los Santos was convicted of murdering Ayala. On a felony murder theory, Diaz also was convicted of the murder. At the time of Diaz's trial, he could be convicted of murder simply because Ayala died during the kidnapping, as Diaz served as De Los Santos's driver during that felony. For Diaz to be convicted on a felony murder theory today, however, the People also would have to prove he was a major participant in the felony who acted with “reckless indifference to human life.” (§ 189, subd. (e)(3)).
In the last several years, our Supreme Court has established that “reckless indifference” demands more than participating in a felony where a risk of death looms. A participant's awareness of “‘no more than the foreseeable risk of death inherent in any [violent felony] is insufficient'” to establish reckless indifference to human life. (In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).) It is not sufficient that a participant “‘could anticipate lethal force might be used'” in a felony. (Ibid.) Rather, “‘only knowingly creating a “grave risk of death”'” is sufficient. (Ibid.) In People v. Clark (2016), 63 Cal.4th 522, 614-623 (Clark), our Supreme Court set out various factors for courts to consider in determining whether the evidence of a particular felony can support a reckless indifference finding. (Clark, supra, 63 Cal.4th at pp. 618-623.) An effort to minimize the risk of violence can weigh against such a finding. (Id. at p. 622.)
Upon a proper petition, section 1170.95 requires courts to evaluate whether a defendant convicted under the former felony murder law could not be convicted today because of the changes to that law. Diaz needs no evidentiary showing to plead a prima facie case, as the bar to obtain an evidentiary hearing was “‘intentionally and correctly set very low.'” (People v. Lewis (2021) 11 Cal.5th 952, 972.)
Diaz has made the prima facie assertions required by section 1170.95, subdivisions (a) and (b), so this case seems to me to fall squarely within the type of felony murder conviction that the Legislature expected trial courts to evaluate through an evidentiary hearing under section 1170.95, subdivision (d). Under current law, Diaz no longer is automatically liable for murder simply because he drove De Los Santos during the kidnapping. A trial court adjudicating Diaz's section 1170.95 petition would need to consider the totality of the circumstances and the Clark factors to determine whether Diaz could not be convicted of felony murder today because of the changes to the murder law, i.e., because of insufficient proof that Diaz was a major participant in the kidnapping who acted with “reckless indifference to human life.” Importantly, the statute even permits new or additional facts to be introduced by either party. (See §1170.95, subd. (d)(3).) Diaz may, for example, introduce his own testimony, and either party may introduce testimony (or admissible statements) from De Los Santos; our opinion in his direct appeal shows De Los Santos offered extensive postarrest statements.
This is a determination that the trial court must make under section 1170.95. We should remand to require that determination made.
II
The majority follows a disputed line of case law that can mean that even if Diaz has a meritorious section 1170.95 argument to vacate his murder conviction, it may never be heard.
When Diaz's jury convicted him in 2014, it found that he acted with reckless indifference to human life in finding true the special circumstance in section 190.2, subdivision (a)(17). This finding, however, occurred before our Supreme Court clarified the legal requirements for reckless indifference in Clark and People v. Banks (2015) 61 Cal.4th 788, generally to require more than simple awareness that lethal force might be used during a felony. Thereafter, our Supreme Court held in Scoggins, supra, 9 Cal.5th at p. 673, that because Banks and Clark clarified the law, a special circumstance jury finding before those cases does not preclude a postconviction challenge to the sufficiency of the special circumstance finding brought after those cases. Nevertheless, the majority here follows caselaw holding that the same finding does preclude a section 1170.95 postconviction challenge to a murder conviction, even though the challenge raises the same legal issue as a challenge to the special circumstance (that is, whether Diaz acted with reckless indifference to human life in the kidnapping under current law). I do not think there is a basis for finding the legal issue precluded. Thus, I would follow the case law holding that a special circumstance finding made before Banks and Clark does not preclude section 1170.95 review of a felony murder conviction. (See, e.g., People v. Arias (2021) 66 Cal.App.5th 987, 1000; People v. Pineda (2021) 66 Cal.App.5th 792, 797; People v. Gonzalez (2021) 65 Cal.App.5th 420, 430; People v. Harris (2021) 60 Cal.App.5th 939, 954-956; People v. Law (2020) 48 Cal.App.5th 811, 822.)
Following the cases that apply preclusion, the majority observes that Diaz is “not wholly without a remedy” because he can challenge the special circumstance finding “in a habeas proceeding.” (Maj. opn., ante, at p. 17.) If he prevailed in that proceeding, then Diaz would “be in a position to successfully petition under section 1170.95 to vacate [his] murder conviction.” (People v. Gomez (2020) 52 Cal.App.5th 1, 17, review granted, S264033, Oct. 14, 2020.)
This assurance, while technically correct, is cold comfort for Diaz. It describes a remedy that is largely illusory. A habeas petition easily can be procedurally barred or denied even where a section 1170.95 petition would be meritorious. In such circumstances, Diaz would never get the opportunity to challenge his murder conviction, no matter how strong his argument that he cannot be convicted of murder under current law. There are four ways that Diaz could have a meritorious section 1170.95 petition but be barred from relief under the caselaw the majority follows.
First, a habeas petition filed by Diaz would be successive, as he filed a habeas petition in 2017 (in case number E067474) raising other challenges. A successive petition typically will be denied for that reason alone. (See, e.g., In re Reno (2012) 55 Cal.4th 428, 501.)
Second, even if not successive, a habeas challenge to the special circumstance could be denied as untimely. (In re Reno, supra, 55 Cal.4th at p. 463.) Diaz has had since the 2016 opinion in Clark to raise that challenge. His section 1170.95 request for newly available relief from his murder conviction, in contrast, is not untimely.
Third, in reviewing a habeas challenge to the special circumstance, a court can consider only undisputed facts. (Scoggins, supra, 9 Cal.5th at p. 667). It is possible here that the parties would dispute relevant facts, such as whether Diaz tried to convince De Los Santos not to hurt the victim. If the resolution of such disputed facts would be determinative for Diaz in a section 1170.95 hearing, a habeas proceeding disregarding those facts would be denied, and the meritorious section 1170.95 petition barred.
Finally, section 1170.95, subdivision (d)(3) allows the parties to submit new or additional evidence, yet a habeas petition challenging the sufficiency of evidence in support of the special circumstance does not contemplate such evidence. In a situation where new evidence would be dispositive in a section 1170.95 analysis of whether Diaz could be convicted of murder today, Diaz could never reach the merits of such a claim if the courts require him to first prevail on the same issue in a habeas petition challenging the sufficiency of the special circumstance on a frozen record.
It seems to me from the text and purpose of section 1170.95 that the Legislature would not have intended to bar those with potentially meritorious challenges to their felony-murder convictions from having them adjudicated. We should hold that Diaz has pled a prima facie case for section 1170.95 relief and allow his evidentiary hearing to proceed. From the facts outlined in section I, above, one cannot know how the merits of a section 1170.95 challenge to Diaz's murder conviction would be decided in trial court. The problem with the case law that the majority follows is that it may ensure that Diaz is never able to find out.