Opinion
E074818
05-27-2021
THE PEOPLE, Plaintiff and Respondent, v. JACKIE LYNN DUNSON, Defendant and Appellant.
Eric Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF065236) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Eric Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
In November 2007, defendant and appellant Jackie Lynn Dunson was involved with her brother and several other men in the robbery and murder of William Dobbs. Dobbs was beaten and his ATM card was stolen. Dobbs's body was found in a desolate area several days later. He had been stabbed 14 times in the head and neck, and his throat was cut.
Defendant was convicted of first degree murder and the special circumstance that the murder was committed during the commission of a robbery. Defendant was sentenced to life without the possibility of parole. In 2015, defendant's convictions were affirmed on appeal in People v. Jackie Lynn Dunson (Feb. 26, 2015, E056565) [nonpub. opn.] (Opinion). On February 6, 2019, defendant filed her petition for resentencing pursuant to Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Sen. No. 1437) and Penal Code section 1170.95 (petition). The petition was summarily denied by the trial court.
On our own motion we take judicial notice of our opinion in case No. E056565. The factual history, post, is taken from the Opinion.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals, contending that the trial court erred in concluding that a true finding on the robbery-murder special circumstance allegation necessarily rendered her ineligible for section 1170.95 relief. We conclude the trial court properly summarily denied her section 1170.95 petition.
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL HISTORY
In November 2007, defendant and her brother Robert Dunson lived in the ground floor apartment of a two-story duplex in Indio. Ronald Handwerk occasionally stayed with them. Rogelio Zuniga and his girlfriend, M.J., lived in the apartment above the Dunsons' apartment. Fernando Benavidez was defendant's boyfriend and visited at the apartment occasionally. Defendant sometimes would engage in prostitution and Benavidez would bring her clients, or "dates." In November 2007 Robert, defendant, M.J., Handwerk, Benavidez, and Zuniga hung out together and smoked methamphetamine in the Dunsons' apartment on most days.
We refer to Robert Dunson by his first name as he shares a last name with defendant; no disrespect is intended.
On November 25, 2007, M.J., Benavidez, Robert, Zuniga, Handwerk, and defendant were at the Dunsons' apartment. Benavidez offered to find someone to bring back to the apartment to have sex with defendant. Robert did not want his sister to engage in sex for money, so he proposed that they bring a man "back to the apartment, beat his ass, rob him, and take all of his shit." Defendant nodded her head in agreement. Zuniga and Handwerk said nothing. Benavidez left the apartment to find someone and M.J. and Zuniga went back to their upstairs apartment.
A surveillance videotape from the Spotlight 29 casino, which was approximately five minutes from the Dunsons' apartment, showed Benavidez entering the casino just after midnight during the morning of November 26, 2007. He eventually was able to persuade the victim, William Dobbs, to come with him to the Dunsons' apartment. They drove together in Dobbs's car.
At some point that night or early morning, M.J. woke to the voice of a man in the Dunsons' apartment screaming: "Oh, God. Please help me." M.J. described the screaming as "gut wrenching," "like someone is in pain, like they were hurt [and] screaming for someone to help them." She also heard "very loud" sounds of banging on a wall downstairs, "like something pretty heavy slamming up against the wall." Zuniga told M.J. to go back to sleep. Handwerk went upstairs, woke Zuniga and told him to go downstairs because he had broken someone's ribs and Handwerk's hand was "messed up." M.J. went back to sleep.
In the predawn hours of November 26, 2007, T.S., who was friends with Robert and defendant, walked to the Dunsons' apartment. As she approached, she saw Benavidez walking away from the apartment. When she got closer to the apartment, she heard defendant arguing, yelling, and crying. T.S. heard defendant say, "he was acting stupid," and "[h]e doesn't want to give [the money] to her." A side door to the apartment was ajar. As T.S. passed by that door, she heard Robert yelling loudly and angrily, " '[g]et down, mother fucker' " and "[t]hese better be the right PIN numbers." T.S. watched Robert push a man to his knees. The man appeared to have blood under his chin. Robert then put a plastic bag over the man's head and used duct tape to secure the bag to the man's neck and face. T.S. decided to leave. As she left, she heard Robert say: "Come on, mother fucker. We're going for a ride."
Robert recruited Zuniga to help him. Defendant watched as Zuniga and Robert drove off with Dobbs in Dobbs's car. M.J. asked for Zuniga, and defendant told her that he and Robert had to go somewhere but that they would back.
At 4:50 a.m., defendant attempted to withdraw $500 from an ATM machine using Dobbs's bank card. The attempt was denied because it exceeded the daily withdrawal limit for the account. She then successfully withdrew $200 from the ATM. An attempt to obtain an additional $200 was denied.
M.J. went downstairs to the Dunsons' apartment the morning of November 27. Robert was kneeling in a corner of the living room scrubbing the walls with bleach and pulling up the carpet. He gave M.J. a bank card and a piece of paper with a PIN number written on it and told her to pull out as much money as she could and bring it back to him. Between 10:26 a.m. and 11:39 a.m. on November 27, M.J. and Zuniga used Dobbs's bank card to retrieve approximately $1,000 from different ATMs. When she and Zuniga returned to the Dunsons' apartment, she gave him $300, the bank card, and the piece of paper with the PIN number. M.J. kept the remaining cash.
Dobbs's body was found on November 27 two miles from the Spotlight 29 casino; he had a black bag attached to his neck with red tape. He had been stabbed with a sharp instrument 14 times, mostly on his face and neck. His internal and external jugular veins and carotid artery were severed, and his trachea was also severed. He had bruises and abrasions on his face and scalp, and signs of blunt force trauma to his chest. He had four broken ribs, which caused ruptures to his liver and lung. The forensic pathologist who performed the autopsy on Dobbs described the injuries as "brutal," and said it "looked like perhaps some injuries were inflicted for the purpose of torture" and for "causing pain."
Dobb's car was found on December 1, 2007, approximately 100 yards from the Dunson's apartment. Defendant later told T.S. that Robert had killed a man and that she had used his ATM card. (People v. Dunson, 2015 Cal.App. Unpub. LEXIS 1445, *3-12)
B. PROCEDURAL HISTORY
Defendant was tried with Handwerk and Benavidez. She was charged with the first degree murder of Dobbs (§ 187, subd. (a)) and the special circumstance that the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)(A)). Defendant was tried under the theories of aiding and abetting and felony murder. The jury was instructed that they must determine as to the robbery-murder special circumstance as follows: "If a defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that he or she acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstances of robbery to be true. If the People have not met this burden, you must find the special circumstance has not been proved true for that defendant." Defendant was found guilty and was sentenced to life without the possibility of parole.
Defendant filed an appeal. She made several claims on appeal, including that there was insufficient evidence presented to support that she was a major participant and acted with reckless indifference to human life, to support the robbery-murder special circumstance. The claim was rejected with this court concluding "[T]he jury could also have reasonably found that [defendant] was a major participant in the plan and acted with reckless indifference to human life. She was not only, as the Attorney General put it, 'the bait,' but was a critical party to the agreement to lure the victim back to the apartment. Moreover, it appears from [T.S.]'s and [M.J.]'s testimony that she was present during the beating of Dobbs up until the time Zuniga and Robert drove him into the desert. She not only failed to do anything to stop the brutal attack, but proceeded to use Dobb's bank card to further the robbery."
On February 6, 2019, defendant filed her petition in pro. per. In her petition, she stated that she had been convicted of first or second degree murder based on the felony-murder rule. She declared that she was not the actual killer, did not have the intent to kill, was not a "major participant," nor did she act with "reckless indifference to human life during the course of the crime or felony." No other documents were provided to the trial court.
On March 19, 2019, the People filed a response. The People contended that Sen. No. 1437 improperly amended Propositions 7 and 115, enacted by the voters, and must be stricken. In addition, the People argued that Sen. No. 1437 was unconstitutional because the Legislature cannot vacate final judgments without violating the separation of powers doctrine and it interfered with the constitutional rights of victims. Further, the People argued that defendant was not factually entitled to relief and the petition must be summarily denied. The People argued although defendant was not the actual killer, she acted with the intent to kill. The evidence established that defendant was present during the "brutal" beating of Dobbs and did nothing to stop it. Moreover, the jury had to find that she was a major participant and acted with reckless indifference to human life in order to find the robbery-murder special circumstance true. The People included the instruction given to the jury and the verdict form on the robbery-murder special circumstance.
A status conference was set for April 12, 2019. At that hearing, the petition was denied but there is no record of the proceedings. Defendant filed a second petition pursuant to section 1170.95 on July 29, 2019 (amended petition). It was identical to the petition. A status conference on the amended petition was scheduled for July 30, 2019.
On September 9, 2019, defendant, through her appointed counsel, filed a reply to the People's opposition. Defendant objected to the trial court taking judicial notice of the Opinion and the facts contained therein. There was a legitimate factual dispute and the trial court should make an eligibility determination during the prima facie hearing. Defendant made a prima facie showing that she was entitled to further investigation and hearing as to whether she could be properly convicted of murder after Sen. No. 1437.
On February 11, 2020, defendant filed a supplement to her reply. Defendant argued that the true finding on the robbery-murder special circumstance did not necessarily mean she was ineligible for relief under section 1170.95. Defendant relied on People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), both decided after she was convicted, to support that she could not be found guilty of the robbery-murder special circumstance under the law as written today. The only evidence supporting the robbery-murder special circumstance was that she "may" have been around when the beating of Dobbs occurred and she used his ATM card. This was not evidence of her being a major participant or exhibiting reckless indifference to human life. Further, defendant argued she was entitled to claim relief pursuant to section 1170.95 and was not required to file a habeas petition.
The People filed a supplemental response to the reply filed by defendant. The People asked the trial court to take judicial notice of the Opinion and records in Riverside County Superior Court case No. INF065236. The People argued defendant was found by the jury to be a major participant and acted with reckless indifference to human life. That finding was upheld by the Court of Appeal. Defendant had not made a prima facie showing of entitlement to relief. Further, section 1170.95 did not give defendant the opportunity to relitigate the merits of her underlying conviction.
The amended petition was heard on February 14, 2020. Defendant's counsel argued that defendant was a minor participant in the scheme concocted by her brother. There was very little evidence as to her participation other than she tried to use the victim's ATM card. Defendant had made a prima facie case for relief. The People argued that the jury made an express finding that she was a major participant and that she acted with reckless indifference to human life. This was a "disqualifier." The evidence supported her conviction. The People also argued that her proper remedy was filing a habeas petition; she was not entitled to relief pursuant to section 1170.95.
The trial court ruled, "So—and I've said this a number of times. It is this Court's belief that 1170.9[5] provides a remedy for individuals who have not had the trier of fact determined beyond a reasonable doubt that one of three predicates are true: They are the actual killer; they acted with the specific intent to kill; or they were a major participant acting with a reckless disregard. [¶] In this particular case, [defendant] has had the trier of fact conclude that one of those predicates is true. They concluded it beyond a reasonable doubt in their opinions. That was the trial court. That was the jury. [¶] And the sufficiency of that finding has been specifically reviewed on direct appeal, and the Court of Appeals opined as follows for similar reasons." The trial court then quoted this court's finding in the Opinion as to the sufficiency of the evidence of the robbery-murder special circumstance. The trial court concluded, "As such, [defendant] has had all that the law provides her. She has had a finder of fact determine beyond a reasonable doubt that one of the current predicates is true, and the sufficiency of that finding has been tested by the appellate court. This petition is denied.
DISCUSSION
Defendant contends that although the jury's true finding in 2012 on the robbery-murder special circumstance indicates the jury found she was a major participant, and that she acted with reckless indifference to human life, such finding does not preclude her from demonstrating eligibility for resentencing under section 1170.95. She argues that Banks and Clark narrowed the definition of major participant and reckless indifference to human life subsequent to her conviction of the robbery-murder special circumstance. She insists she made a prima facie showing and that she is a "shoo-in contender for relief on the merits."
The People contend the section 1170.95 petition was properly summarily denied. The changes Sen. No. 1437 made to the murder statutes do not afford resentencing for individuals like defendant who were convicted of special circumstance murder under section 190.2, subdivision (a)(17), because it contains the same elements now required for felony murder. Moreover, any claim that a robbery-murder special circumstance finding prior to Banks and Clark is insufficient is more properly raised in a habeas petition rather than in a section 1170.95 petition.
"Our appellate courts have recently split over whether such a pre-Banks/Clark special circumstance finding renders a petitioner ineligible for relief under section 1170.95 as a matter of law." (People v. Jones (2020) 56 Cal.App.5th 474, 476, review granted January 27, 2021, S265854.) We will review the changes made by Sen. No. 1437 to the murder statutes and the conflicting authorities to determine whether the trial court properly summarily denied the amended petition.
A. SENATE BILL NO. 1437 AND SECTION 1170.95
Sen. No. 1437 became effective January 1, 2019. "[Sen. No. 1437] modified California's felony-murder rule and natural and probable consequences doctrine to ensure murder liability is not imposed on someone unless they were the actual killer, acted with the intent to kill, or acted as a major participant in the underlying felony and with reckless indifference to human life." (People v. Cervantes (2020) 46 Cal.App.5th 213, 220.) Sen. No. 1437 added section 189, subdivision (e), which provides that "[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [which includes robbery] in which death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) 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."
We cite to cases where review has been granted in the California Supreme Court since most cases analyzing section 1170.95 are before that court. These cases can be cited for their potential persuasive value. (Cal. Rules of Court, rule 8.1115(e)(1).)
Sen. No. 1437 also added section 1170.95 which provides "(a) A person convicted of felony murder or murder under a natural and probable consequences theory may 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 when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial . . . . [¶] (3) 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." (§ 1170.95, subd. (a).)
" 'If the petition contains all required information, section 1170.95, subdivision (c), prescribes a two-step process for the court to determine if an order to show cause should issue.' " (People v. Torres (2020) 46 Cal.App.5th 1168, 1176, review granted June 24, 2020, S262011 (Torres).) "If it is clear from the record of conviction that the petitioner cannot establish eligibility as a matter of law, the trial court may deny the petition. [Citation.] If, however, a determination of eligibility requires an assessment of the evidence concerning the commission of the petitioner's offense, the trial court must appoint counsel and permit the filing of the submissions contemplated by section 1170.95." (People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. omitted, review granted July 22, 2020, S262835].) The superior court can properly consider the record of conviction and the appellate opinion affirming conviction in deciding at the initial step if a prima facie case has been made. (People v. Verdugo (2020) 44 Cal.App.5th 320, 327, 329-330, review granted Mar. 18, 2020, S260493.)
Section 1170.95, subdivision (c), provides for a second step as follows: "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 within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor's response is served. These deadlines shall be extended for good cause. 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."
After the issuance of an order to show cause the trial court shall conduct a hearing to determine whether to vacate the murder conviction and recall the sentence. (§ 1170.95, subd. (d)(1).) At the hearing, the burden is on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing and may rely "on the record of conviction or offer new or additional evidence." (§ 1170.95, subd. (d)(3).)
In this case, the trial court denied defendant's petition at the first stage of prima facie review under section 1170.95, subdivision (c). "A denial at that stage is appropriate only if the record of conviction demonstrates that 'the petitioner is ineligible for relief as a matter of law.' [ Citations.] This is a purely legal conclusion, which we review de novo." (People. v. Murillo (2020) 54 Cal.App.5th 160, 167-168, review granted November 18, 2020, S264978 (Murillo).)
B. ANALYSIS
In 2015, after defendant's conviction, the California Supreme Court decided Banks, and in 2016, it decided Clark. In Banks, the court clarified the meaning of major participant for special circumstances under section 190.2. Banks derived a nonexclusive list of factors bearing on whether an aider and abettor of felony murder was a "major participant" as follows: " '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 inactions play a particular role in the death? What did the defendant do after lethal force was used?' " (Clark, supra, 63 Cal.4th at p. 611, quoting Banks, supra, 61 Cal.4th at p. 803.)
"Clark expounded on the meaning of the 'reckless indifference to human life' element of a special circumstance under section 190.2(d), which ' "significantly overlap[s]" ' with the 'major participant' element. [Citations.] Clark explained that the mind state 'encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his [or her] actions.' [Citation.] The required intent has '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 . . . what "a law-abiding person would observe in the actor's situation." ' [Citation.] As Banks did as to the 'major participant' element, Clark provided a nonexclusive list of factors bearing on the 'reckless indifference to human life' element. [Citation.] These factors are the 'defendant's knowledge of weapons used in the crime, and their actual use and number; [the] defendant's proximity to the crime and opportunity to stop the killing or aid [the victim or victims]; the duration of the crime; [the] defendant's knowledge of [the actual killer's] propensity to kill; and [the] defendant's efforts to minimize the possibility of violence during the crime.' " (In re Taylor (2019) 34 Cal.App.5th 543, 553.)
Sen. No. 1437 became effective after Banks and Clark, and as stated, modified the felony-murder rule and the natural and probable consequences doctrine. In People v. Law (2020) 48 Cal.App.5th 811 (Law), review granted July 8, 2020, S262490, the defendant was found guilty in 2006 of first degree murder and the robbery-murder special circumstance pursuant to section 190.2, subdivision (a)(17)(A). The defendant was found not to be the shooter but was found guilty based on him being a major participant and acting with reckless indifference to human life. The defendant filed a petition for resentencing pursuant to section 1170.95. The defendant's petition was summarily denied by the trial court based on the true finding on the special circumstance. (Law at pp. 815-816, 818.) On appeal, the defendant argued, among other things, that the record did not support, after Banks and Clark, that he was a major participant and acted with reckless indifference to human life. (Law, at pp. 818-819.)
The Law court concluded that the trial court could consider the record of conviction in determining whether the petition made a prima facie case for relief. It found, "[A] trial court may consider the record of the petitioner's conviction, including documents in the court's own file and the appellate opinion resolving the defendant's direct appeal." (Law, supra, 48 Cal.App.5th at pp. 820-821.)
The Law court then found that in Banks and Clark, "[O]ur high court clarified that participation in an armed robbery, on its own, is insufficient to support a finding that the defendant acted with reckless indifference to human life. 'A sentencing body must examine the defendant's personal role in the crimes leading to the victim's death and weigh the defendant's individual responsibility for the loss of life, not just his or her vicarious responsibility for the underlying crime.' [Citation.] 'The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,' thereby, 'demonstrating reckless indifference to the significant risk of death his or her actions create.' " (Law, supra, 48 Cal.App.5th at pp. 817-818.)
The Law court found that it could determine for the first time on appeal whether there was sufficient evidence under the new law to deny the petition for resentencing. It found, "The 'claim does not require resolution of disputed facts; the facts are a given.' " (Law, supra, 48 Cal.App.5th at p. 822.) The court then reviewed the facts of the case. The court concluded, "Although the trial court erred by concluding the special circumstance finding, on its own, rendered [the defendant] 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—we conclude the error was harmless because the record demonstrates the answer to that question is yes. As a result, we conclude the denial of [the defendant]'s petition was proper." (Law, supra, 48 Cal.App.5th at p. 825.)
In Torres, supra, 46 Cal.App.5th 1168, that court also found there was a change in the law under Banks and Clark. It concluded that the California Supreme Court had significantly changed the meaning of "major participant" and "reckless indifference to human life." It found, "[O]ur Supreme Court's decisions, clarifying what it means for an aiding and abetting defendant to be a 'major participant' in an underlying felony and to act with 'reckless indifference to human life,' construed section 190.2 in a significantly different, and narrower manner than courts had previously construed the statute. . . . Banks, . . . , which elucidated the meaning of 'major participant,' was decided in 2015, and Clark, . . . , which addressed the meaning of 'reckless indifference to human life,' was decided in 2016. Accordingly, in determining if [the defendant] could be convicted today of first-degree murder, we cannot simply defer to the jury's pre-Banks and Clark factual findings that [the defendant] was a major participant who acted with reckless indifference to human life as those terms were interpreted at the time." (Torres, at p. 1179.) "We conclude that the trial court erred in ruling that the pre-Banks and pre-Clark robbery murder special circumstance findings preclude [the defendant] from relief as a matter of law." (Torres, at p. 1180.)
After Law and Torres were decided, three new cases—People v. Gomez (2020) 52 Cal.App.5th 1, review granted October 14, 2020, S264033 (Gomez); People v. Galvan (2020) 52 Cal.App.5th 1134, 1137, 1142, review granted October 14, 2020, S264284 (Galvan); and Murillo, supra, 54 Cal.App.5th at pp. 167-168—concluded that the conviction of a robbery-murder special circumstance as a matter of law makes a defendant ineligible for relief pursuant to section 1170.95, and any claim under Banks and Clark is more properly raised in a petition for writ of habeas corpus.
In Gomez, supra, 52 Cal.App.5th 1, the court held "We conclude the trial court properly denied [the defendant]'s section 1170.95 petition without issuing an OSC and holding an evidentiary hearing because the record of conviction established, as a matter of law, that [the defendant] is ineligible for relief under section 1170.95. To obtain relief from her felony-murder conviction under section 1170.95, [the defendant] would have to establish that she did not aid and abet, counsel, command, induce, solicit, request or assist the actual killer with the intent to kill or as a major participant in the underlying felonies (robbery and kidnapping) who acted with reckless indifference to human life. [The defendant]'s jury was instructed that to prove the special circumstance allegations 'for a defendant who is not the actual killer but who is guilty of first degree murder as [an aider and abettor or a member of a conspiracy], the People must prove either that the defendant intended to kill, or the People must prove all of the following: [¶] 1. The defendant's participation in the crime began before or during the killing; [¶] 2. The defendant was a major participant in the crime; AND [¶] 3. When the defendant participated in the crime, [he or she] acted with reckless indifference to human life.' " (Id. at pp. 14-15.)
The Gomez court concluded, "Thus, in finding the robbery and kidnapping special circumstance allegations true, the jury necessarily found that [the defendant] either participated in the alleged robbery and kidnapping with the intent to kill [the victim], or that she was a major participant in those crimes who acted with reckless indifference to [the victim]'s life. Because either finding would allow [the defendant] to be convicted of first or second degree murder notwithstanding the changes to sections 188 and 189 made effective January 1, 2019, [the defendant] is not eligible for relief from her murder conviction under section 1170.95." (Gomez, supra, 52 Cal.App.5th at p. 15.) In addition, the court found that in order to raise the claim that after Banks and Clark the finding was insufficient, the court found, "the proper procedure for her to challenge her special circumstance findings based on clarification of the relevant law in Banks and Clark is to bring a petition for habeas corpus, in which she would bear the burden of showing the findings must be vacated on the ground there is insufficient evidence to support them." (Gomez, at p. 17.)
In Galvan, supra, 52 Cal.App.5th 1134, the court found, "The trial court justified its decision on the ground that the special circumstance finding showed as a matter of law that [the defendant] was ineligible for resentencing. The court reached this conclusion by comparing the requirements for felony murder under Senate Bill No. 1437 with those for the felony murder special circumstance under section 190.2, subdivision (a)(17). The requirements for the felony-murder special circumstance did not change as a part of Senate Bill No. 1437, and are identical to the new requirements for felony murder following the enactment of Senate Bill No. 1437. In both instances, the defendant must have either actually killed the victim [citation]; acted with the intent to kill in aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting in the killing [citations]; or been a major participant in the underlying felony and acted with reckless indifference to human life [citations]. 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." (Id., at pp. 1140-1141.) Further, the court followed Gomez and found that the proper procedure for the defendant's challenge based on Banks and Clark was through filing a habeas petition. (Galvan, at pp. 1142-1144.)
Finally, in Murillo, supra, 54 Cal.App.5th 160, the court found "To be eligible for resentencing under section 1170.95, [a defendant] must show that he 'could not be convicted of first or second degree murder because of changes to Section[s] 188 or 189 made effective' as a part of Senate Bill No. 1437. [Citation.] Under the newly amended version of section 189, a defendant can be convicted of felony murder only if he was the actual killer; acted with the intent to kill in aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting in first degree murder; or '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.' [Citation.] These are identical to the circumstances in which a felony-murder special circumstance applies. [Citation.] Thus, the jury's special circumstance finding shows as a matter of law that [defendant] could still be convicted of felony murder under the new definition, and prevents [defendant] from making a prima facie case that he is eligible for resentencing." (Murillo, supra, 54 Cal.App.5th at p. 167.)
The Murillo court further stated: "As we explained in Galvan, a defendant subject to a pre-Banks and Clark special circumstance is ineligible for resentencing under section 1170.95 because of the basis of his claim. Although [the defendant] asserts 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. If [the defendant] is entitled to relief based on Banks and Clark, the avenue for such relief is not section 1170.95, but a petition for writ of habeas corpus.' " (Murillo, supra, 54 Cal.App.5th at p. 168.)
The Murillo court went on to state that "[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. '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 circumstance finding on direct appeal, where the People would need only to show that substantial evidence supported that finding. If the judgment is affirmed, generally it would be the law of the case in any proceedings thereafter as to those findings. [Citations.] 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. [Citation.] Yet nothing in the language of Senate Bill No. 1437 suggests that the Legislature intended unequal treatment of such similarly situated defendants.' " (Murillo, supra, 54 Cal.App.5th at pp. 168-169.)
Defendant contends the cases of People v. Duchine (2021) 60 Cal.App.5th 798, 815 and People v. Rivera (2021) 62 Cal.App.5th 217 clarify that the trial court cannot engage in fact finding in determining whether a prima facie case has been shown for the grant of a section 1170.95 petition. The Duchine court found, "We hold that the time for weighing and balancing and making findings on the ultimate issues arises at the evidentiary hearing stage rather than the prima facie stage, at least where the record is not dispositive on the factual issues. Thus, absent a record of conviction that conclusively establishes that the petitioner engaged in the requisite acts and had the requisite intent, the trial court should not question his evidence. The court may . . . consider the record of conviction at the prima facie stage, but may not evaluate the evidence, make credibility findings adverse to the petitioner, engage in factfinding or exercise discretion. [Citation.] The record should be consulted at the prima facie stage only to determine 'readily ascertainable facts,' such as the crime of conviction and findings on enhancements. Once the petitioner has made a prima facie showing, true factfinding should be reserved and exercised only after an order to show cause is issued and the parties are permitted to supplement the record with new evidence, including, if requested, through an evidentiary hearing." (Duchine, at p. 815.) In Rivera, the court approved of the standard in Duchine.
After consideration of all these cases, we conclude that Gomez, Galvan, and Murillo are better reasoned and hold that defendant's conviction of the robbery-murder special circumstance made her ineligible for relief pursuant to section 1170.95. Defendant had been convicted of the robbery-murder special circumstance and the jury was required to find that she was a major participant and acted with reckless indifference to human life in finding the allegation true. Moreover, even considering Duchine, the trial court did not improperly engage in fact finding and credibility determinations. The trial court properly reviewed the record to "determine 'readily ascertainable facts,' such as the crime of conviction and findings on enhancements." (People v. Duchine, supra, 60 Cal.App.5th at p. 815.) Defendant here, unlike the defendant in Duchine, was convicted of the robbery-murder special circumstance, making her ineligible. (Id. at pp. 805-806.) The trial court did not err by summarily denying her section 1170.95 petition. The proper procedure for challenging a felony-murder special circumstance based on Banks and Clark is a habeas petition. In the habeas petition, the court can determine whether the evidence is sufficient to find that defendant was a major participant who acted with reckless indifference to human life.
DISPOSITION
We affirm the order denying defendant's amended petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.