Opinion
E072645
12-13-2022
THE PEOPLE, Plaintiff and Respondent, v. TRACY LEEAN GARRISON, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Senior Assistant Attorneys General, Meredith S. White, Donald Ostertag, and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF095477. John D. Molloy, Judge. Reversed and remanded with directions.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Senior Assistant Attorneys General, Meredith S. White, Donald Ostertag, and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J. 1
I
INTRODUCTION
In 2003, a jury convicted defendant and appellant Tracy Leean Garrison of first degree murder (Pen. Code, § 187, subd. (a)) and found true the allegation that she committed the murder while engaged in the commission of a robbery and kidnapping (§ 190.2, subd. (a)(17)(A) & (B)). The robbery-kidnapping-murder special circumstance authorizes a sentence of life without the possibility of parole for "a major participant" in a felony murder who acted with "reckless indifference to human life." (§ 190.2, subds. (a)(17) & (d).)
All future statutory references are to the Penal Code.
In 2019, defendant filed a petition to vacate her murder conviction and for resentencing under section 1172.6 (formerly section 1170.95). The trial court summarily denied the petition, concluding the felony-murder special circumstances findings conclusively established that defendant was not eligible for relief.
Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to section 1172.6 for ease of reference unless otherwise indicated.
Defendant appealed that ruling, arguing, in part, the jury's special circumstance finding did not render her ineligible for relief as a matter of law because her conviction predated our Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the meaning of "major participant" and "reckless indifference to human life." In our original opinion, 2 we concluded, in part, that defendant's special circumstance finding rendered her ineligible for relief as a matter of law and therefore affirmed the summary denial of defendant's petition.
The California Supreme Court granted review of our opinion and deferred action pending its decisions in People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis), and it has now transferred the matter back to us with directions to vacate our original opinion and reconsider defendant's appeal in light of those decisions. In Strong, our Supreme Court held that a pre-Banks/Clark felony-murder special circumstance finding does not render a section 1172.6 petitioner ineligible for relief as a matter of law. We vacated our original decision and provided the parties the opportunity to file a supplemental brief. Having reconsidered defendant's appeal in light of Strong and Lewis, we reverse the trial court's order and remand the matter for further proceedings pursuant to section 1172.6.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from this court's partially published opinion in defendant's prior appeal, case No. E035174. (People v. Wahlert (2005) 130 Cal.App.4th 709 (Wahlert I).) We also take judicial notice of the appellate record of defendants Garrison's and Wahlert's criminal trial, case No. E035174. (Evid. Code, § 452, subd. (d).)
Codefendant Joshua Blaine Wahlert lived in a recreational vehicle on property belonging to the father of his friend, Jon Ramirez. Ramirez and his father lived in a 3 house on the property. In the months preceding the murder of Michael Willison, defendant stayed intermittently with Wahlert in the recreational vehicle. The two frequently argued and defendant would leave for several days at a time to be with Willison. According to Ramirez, defendant was confused about who she wanted to be with.
Two or three weeks before Willison was killed, Ramirez, defendant, and Willison went to the home of "'Flako'" to buy drugs. While Willison was inside Flako's house, defendant talked to Ramirez about a plan to rob Willison. She said she wanted to give Willison's truck and other property to Wahlert and then the two would go to Las Vegas to get married. She spoke to Ramirez about this plan on two other occasions. Wahlert separately told Ramirez of his desire to "'take everything that [Willison] had.'" Another time, Wahlert, who was jealous of Willison's relationship with defendant, said he wanted to "'beat [Willison] up.'" Wahlert and defendant sometimes referred to each other as "'Bonnie and Clyde.'" (Wahlert I, supra, 130 Cal.App.4th at p. 714.)
On January 14, 2001, Willison called Ramirez to get some help getting a couch from storage into his truck. Willison arrived at Ramirez's home about 10:30 p.m. that night. The two smoked methamphetamine. As Ramirez was putting his shoes on to leave with Willison, Wahlert and defendant entered Ramirez's home. Defendant brought in a roll of duct tape and set it on the television set. Wahlert pulled out a gun and pointed it at Willison. When Willison pleaded to spare his life and to not "'leave [his] two boys fatherless,'" (Wahlert I, supra, 130 Cal.App.4th at p. 714) Wahlert told him to shut up 4 and stuck a bandana in Willison's mouth. Defendant then taped Willison's mouth and hands with the duct tape. She went through Willison's pockets, taking keys, a wallet, a necklace, and a ring, and threw them on a couch. Ramirez was, as he said, "'[f]reaking out'" and telling them, "'No, not here.'" (Id. at p. 714.) Ramirez testified that he did not do anything to encourage them; but he did not do anything to stop them "'[b]ecause [Wahlert] had a gun.'" (Ibid.) According to Ramirez, Wahlert never turned the gun toward defendant, threatened her, forced her, or directed her to do anything. It appeared to Ramirez that Wahlert and defendant were "'working together.'" (Ibid.)
Defendant took Willison's keys. With Wahlert pointing the gun at Willison, the three went to Willison's truck. They drove to a secluded rural area where Willison was severely beaten, repeatedly stabbed, and shot twice in the head. He died as a result.
Wahlert and defendant returned to Ramirez's house in Willison's truck about 20 minutes after they had left with Willison. Ramirez told them "'to get their stuff and to leave.'" (Wahlert I, supra, 130 Cal.App.4th at p. 714.) Wahlert told Ramirez he was "'sorry for letting that happen,'" gave Willison's ring and necklace to Ramirez as "'compensation to help you out for what went on,'" and told him, "'[d]on't say a word.'" (Ibid.) Wahlert took Willison's other property, including a $20 bill and credit cards. Wahlert told defendant to pack their belongings, which she did. The two then left in Willison's truck. 5
Later that morning, they tried to buy gas for the truck with one of Willison's credit cards, but the card was not approved. When the gas station attendant went to call the police, Wahlert and defendant left.
Wahlert and defendant drove the truck to the home of Ed and Donna Geiger, where Vernon Wood was staying. Wahlert told Wood that he had taken the truck "'from a dude that he killed.'" (Wahlert I, supra, 130 Cal.App.4th at p. 715.) He told Wood that he intended "'to rob the guy . . . and stuff got out of hand and he shot him, stabbed him[,] and split.'" (Ibid.) Wahlert showed Wood credit cards with the name "'Michael'" (ibid.) on them. Wahlert asked Wood to help him bury the victim, but Wood refused. He also asked Wood where he could get a 50-gallon drum. Wahlert left a bag of clothes at the house, which Ed Geiger later burned.
A couple of days after the murder, Wahlert called Ramirez to say that he and defendant were going to Las Vegas to get married and asked Ramirez to be the best man. Later, Wahlert told Ramirez that he had shot Willison in the head and put a tarp over him. He also told Ramirez where the body was located and asked Ramirez to "'take care of the body.'" (Wahlert I, supra, 130 Cal.App.4th at p. 715.)
On January 20, 2001, Wahlert and defendant were in Willison's truck when Wahlert displayed a gun to two women in another car. One of the women called her husband, who called 911. Shortly afterward, Wahlert was arrested for brandishing a firearm. The police found a .30-caliber gun in the truck and a live round in Wahlert's pocket. While being booked on this charge, Wahlert commented: "'I'm looking at 6 60 years, they just haven't found out the half of it yet.'" (Wahlert I, supra, 130 Cal.App.4th at p. 715, fn. omitted.)
In a subsequent search of the truck, police found, among other items, a pair of blue jeans stained with Willison's blood, a man's empty wallet, a black bag, and a red bag. In the black bag were checks on Willison's personal bank account, a payroll check made out to Willison, and business cards for Willison's painting business. The red bag contained credit cards in Willison's name and a bandana.
A couple of days after Wahlert's arrest, defendant went to Ramirez's house and told him that they had to "'go back out there and take care of the body.'" (Wahlert I, supra, 130 Cal.App.4th at p. 715.)
On January 23, 2001, nine days after the murder, Willison's body was found by a jogger. The body was covered with a tarp or mat. Police found a piece of duct tape 20 to 30 feet away from the body. Impressions of tire tracks at the scene matched those of the tires on Willison's truck. After identifying the victim as Willison, police learned that Willison's car had been impounded in connection with the arrest of Wahlert for brandishing a firearm. The police then examined the property that was taken from Wahlert when he was arrested and found Willison's social security card, his contractor's state license card, and credit cards with Willison's name on them.
While Wahlert was in custody on the charge of brandishing the firearm, Kevin Duffy, an investigator for the Riverside County Sheriff's Department, interviewed him about Willison after he was advised of, and waived, his rights under Miranda v. Arizona 7 (1966) 384 U.S. 436. Audiotaped recordings of these interviews were played in the presence of his jury only. Wahlert admitted shooting Willison twice but stated that he d id so after Willison came at him waving a shotgun in his arms. After shooting Willison, Willison grabbed Wahlert; Wahlert then stabbed Willison. Initially, he stated that defendant was not there and did not participate in the killing. Later, he said that defendant was there, but that she did not know or do anything. During one of the interviews, Wahlert wrote a note to Willison's children at the request of the investigator, in which Wahlert apologized "'for the pain that [he has] caused . . . .'" (Wahlert I, supra, 130 Cal.App.4th at p. 716.)
While Wahlert was being interviewed in the district attorney's office, defendant was being questioned by an investigator at a sheriff's station in Hemet. According to defendant, she, Wahlert, Willison, and Ramirez were in Ramirez's house when Wahlert pulled a gun on Willison and had Willison empty his pockets. Wahlert then told Willison they were "'gonna go for a ride.'" (Wahlert I, supra, 130 Cal.App.4th at p. 716.) Defendant said that she insisted on going with them. After driving to a secluded location, Wahlert and Willison walked to a rocky area and argued. As defendant started to get out of the truck, she heard two shots; then Wahlert returned and told her to get into the truck. Sometime later, they returned to the scene to find that Willison had moved about six feet and was alive. Wahlert then took a knife and walked toward Willison; when he returned, he told defendant that he had cut Willison's throat and broke his neck. Video and audio recordings of this interview were played only to defendant's jury. 8
During the day that both Wahlert and defendant were being separately interviewed, Duffy, who was interviewing Wahlert, and the investigator interviewing defendant, remained in "'constant phone contact'" (Wahlert I, supra, 130 Cal.App.4th at p. 717) with each other and arranged for Wahlert to telephone defendant. The telephone call was described by Duffy at trial as a "'pretext call.'" (Ibid.) Duffy informed Wahlert that they "'found [defendant Garrison]'" and that Wahlert "'need[s] to talk to her and tell her to cooperate and tell the truth.'" (Ibid.) Duffy told Wahlert that defendant was in Hemet. Wahlert asked if she was "'at the station,'" to which Duffy responded, "'No, . . . some other house.'" (Ibid.) Duffy then dialed a number on a cell phone and handed the phone to Wahlert. Wahlert was then connected with defendant in the Hemet sheriff's station as Duffy left the room. In Hemet, an investigator was in the room with defendant listening to the phone call and "'feeding her some questions at times.'" (Ibid.) The phone call was recorded, and the recording played to each jury separately.
During the call, Wahlert and defendant each made statements directly or indirectly implicating themselves and each other. When Wahlert told defendant that he had told Duffy that Willison "'pulled a shotgun on'" him, defendant told him that she would "'tell [them] the truth before I told [them] that.'" (Wahlert I, supra, 130 Cal.App.4th at p. 717.) Wahlert admitted that he had lied "'to keep [defendant Garrison] safe.'" (Ibid.) Wahlert told defendant that she was "'part of this'" and, when defendant said that she "'told them everything that happened from the time we left [Ramirez's],'" Wahlert asked, 9 "'Did you tell them you told me to do it?'" (Ibid.) When defendant denied that she told Wahlert "'to do it,'" Wahlert responded, "'Oh, ho! That's cold. All right.'" (Ibid.) Later in the conversation, Wahlert told defendant that he would "'take the fall for this.'" (Ibid.) Still later in the conversation, there was an exchange that suggested that Wahlert killed Willison because defendant said she was afraid of Willison. When defendant denied that she was afraid of Willison, Wahlert declared, "'My life's over because I cared about you.'" (Ibid.) Defendant responded by telling Wahlert, "'Well then you shouldn't have done it'" and that he "'should've thought about that before.'" (Ibid.) Wahlert warned defendant that the police wanted to "'make [her] an accessory,'" to which defendant explained, "'[t]he only thing I did, is I was there.'" (Ibid.) The following exchange then took place:
"'WAHLERT: And you didn't tell me to shoot him?
"'GARRISON [DEFENDANT]: Nope!
"'WAHLERT: Oh, ho-oh! You don't love me, do you?
"'GARRISON [DEFENDANT]: You know what does that have to with thing [sic]. I do love you. But I never told you, I never told you to do anything. . . . I never told you to kill him. I never told you to shoot him.
"'WAHLERT: OOOOhhhh! Tracey!!!! Tracey!!!!'" (Wahlert I, supra, 130 Cal.App.4th at pp. 717-718.) 10
Spelling and punctuation are as set forth in the transcripts of the audio records admitted into evidence. (Wahlert I, supra, 130 Cal.App.4th at pp. 717-718.)
Police also recorded one conversation between Wahlert and his mother and another conversation with Wahlert, his mother, and an investigator, both of which were played to his jury only. During these conversations, Wahlert stated he "'did it because I was scared of [Willison]. And I did it because . . . [defendant Garrison] said she was scared of [Willison].'" (Wahlert I, supra, 130 Cal.App.4th at p. 718.) He told his mother that defendant told him to kill Willison. When the investigator was present, Wahlert stated that defendant had "'used me to get this dude done'" and that defendant "'set me up to do this.'" (Ibid.) Following these interviews and conversations, Wahlert told the investigator that defendant "'duct taped [Willison].'" (Ibid.)
After Willison's death, defendant made admissions to several others about her involvement in the killing. The night after the killing, she told Tiffany Walls that Wahlert shot a man and that she slit the victim's throat. Within a couple of days of the murder, she told Kellie White that she had repeatedly stabbed Willison and killed him. Within two weeks after the murder, defendant told Victoria Lauderdale that a man was supposed to give her money and did not; she and Wahlert went to the man's house where she had taped the man's hands and legs while Wahlert held him; they robbed him of drugs and money; and then they took him to a field where Wahlert shot him twice. She further told Lauderdale that when she and Wahlert returned to the scene of the shooting and found the victim alive, Wahlert cut the man's throat. Defendant did not tell Lauderdale that she had been forced to participate in the murder. About two weeks after the murder, defendant told Vernon Wood that she planned to rob Willison; that she bound 11 him with duct tape and robbed him of his truck and $20; and that Wahlert then shot and stabbed him. On two occasions after Wahlert was arrested, when Ramirez and defendant were among friends, defendant "'joke[d] around about how much she liked duct tape.'" (Wahlert I, supra, 130 Cal.App.4th at p. 718.)
Defendant was interviewed by police again in May 2001 and December 2001. In these interviews, defendant denied having any relationship with Wahlert. She said that Wahlert told her to duct tape Willison, but she refused. Rather than insisting upon going with Wahlert and Willison in the truck, as she previously stated, she went along only after Wahlert pointed the gun at her and said "'[y]ou're going too.'" (Wahlert I, supra, 130 Cal.App.4th at p. 719.) Defendant explained the apparent inconsistency by stating: "'[Wahlert] said, "You're going too. Let's go," and then I don't know if he thought about it or what. But he wasn't gonna⸺he wasn't gonna let me go with him, and then that's when I insisted on going.'" (Ibid.) She denied taking things from Willison's pockets and denied stabbing Willison. She did not try to stop Wahlert, defendant explained, because she was afraid that he would shoot her too. At the conclusion of this last interview, she was taken into custody. Audio and video recordings of these interviews were played to defendant's jury only. Neither Wahlert nor defendant testified at trial.
B. Procedural Background
On December 9, 2003, a jury convicted defendant of first degree murder (§ 187, subd. (a)) and found true the allegation that she committed the murder while engaged in 12 the commission of a robbery and kidnapping (§ 190.2, subd. (a)(17)(A) & (B)) and of knowing that a principal was armed with a gun (§ 12022, subd. (a)(1)). The jury found not true the enhancement allegation that defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). Defendant was sentenced to life without the possibility of parole, plus a determinate term of one year for the principal-armed enhancement.
On June 24, 2005, we affirmed the convictions, ordered victim restitution to be paid jointly and severally, and instructed the trial court to correct certain clerical errors.
On January 1, 2019, Senate Bill No. 1437 became effective, which amended the felony-murder rule and the natural and probable consequences doctrine as it relates to murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 also added former section 1170.95 (now section 1172.6), which created a procedure for offenders previously convicted of murder to seek retroactive relief if they could no longer be convicted of murder under the new law. (Stats. 2018, ch. 1015, § 4.)
On January 22, 2019, defendant in propria persona filed a petition to vacate her murder conviction and for resentencing pursuant to former section 1170.95.
The trial court heard the petition on March 22, 2019. Prior to the hearing, the court appointed a conflict-panel attorney to represent defendant, and indicated it anticipated that counsel would simply say "I object" at the conclusion of the court's ruling. The court then indicated it had reviewed its own records and denied defendant's petition. In denying the petition, the court stated as follows: 13
"There was a finding on the special circumstance. The finding reads as follows: 'We, the jury in the above-entitled action, find that the murder of Michael Wilson, as charged under Count 1 of the third amended information, was committed while the defendant, Tracy Leean Garrison, was engaged in the commission of the crime of robbery in violation of section 211 of the Penal Code as alleged in the allegation of special circumstance within the meaning of Penal Code section 190.2, subdivision (a), subsection (17), subparagraph (A).
"Additionally, there was a second finding that reads as follows: [']We, the jury in the above-entitled action, find that the murder of Michael Wilson, as charged under Count 1 of the third amended information, was committed while the defendant, Tracy Leean Garrison, was engaged in the commission of the crime of kidnapping in violation of section 207 of the Penal Code as alleged in the allegation of special circumstance within the meaning of Penal Code section 190.2, subdivision (a), subsection (17), subparagraph (B).
"There was also a true finding on personal use of a handgun-or being personally armed with a handgun. There was also a true finding on the 12022(b) allegation. 14
Defendant correctly notes that at the hearing on her resentencing petition, the court mistakenly observed that the jury had found true the personal-use enhancement allegation under section 12022, subdivision (b)(1), when, in fact, the jury only found true the principal-armed enhancement pursuant to section 12022, subdivision (a)(1).
"The jury was instructed on aider and abettor liability. The jury was instructed pursuant to 8-under CAL JIC 8.80.1. In pertinent part, that instruction stated the following: '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 and 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 and abetted 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 and abetted or assisted in the commission of the crime of robbery or kidnapping which resulted in the death of a human being, namely Michael Wilson.'
"As such, it appears that as a matter of law, the defendant was found to fall within the provisions of [Senate Bill No.] 1437 as it is enacted meaning there has been a finding, as a matter of law, that she satisfies one of the predicates for aider and abettor liability under [Senate Bill No.] 1437 as it is drafted. As such, she is not entitled to relief. Under [former section] 1170.95, the Court is summarily denying this petition."
Defendant's counsel thereafter objected. When the trial court inquired as to whether defense counsel wanted to be heard further as to her objection, counsel stated, "No."
On March 25, 2019, the People filed a response, arguing Senate Bill No. 1437 was unconstitutional and that defendant was not factually entitled to relief due to the jury's true findings on the felony-murder special circumstances. The People claimed that 15 defendant was the actual killer, and if not the actual killer, she directly aided and abetted the killing with the intent to kill, she was a major participant in the murder, and she acted with reckless indifference to human life. The People thus requested summary denial of Garrison's petition. Defendant thereafter timely appealed.
III
DISCUSSION
Defendant contends the trial court erred in summarily denying her section 1172.6 petition by concluding the special circumstances findings rendered her ineligible for relief as a matter of law because the findings predates Banks and Clark. She also asserts that she stated a prima facie case for relief in her petition, counsel should be appointed for her, and the case should be remanded with directions to issue an order to show cause and hold a hearing under section 1172.6. The People concede that under Strong, the court's order denying defendant's petition for resentencing at the prima facie stage should be reversed and the matter remanded for further proceedings. Because her conviction predates our Supreme Court's decisions in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, we concur that the trial court erred in denying defendant's petition at the prima facie stage and remand for further proceedings.
A. Legal Background
In 2015 and 2016, our Supreme Court decided Banks and Clark, respectively, which discuss when section 190.2 authorizes a special circumstance life without parole sentence for a felony-murder defendant convicted as an aider and abettor. (Banks, supra, 16
61 Cal.4th at p. 794; Clark, supra, 63 Cal.4th at pp. 609-610.) Those decisions held that participation in an armed robbery, on its own, is insufficient to support a finding the defendant acted with reckless indifference to human life. Instead, the factfinder must consider "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." (Banks, at p. 801, italics omitted.) "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." (Ibid., italics added.) Banks provided a non-exhaustive list of factors to consider when determining whether the defendant was a major participant in the underlying felony. (Banks, at p. 803.) And Clark offered a similar list for determining whether the defendant acted with reckless indifference to human life. (Clark, at pp. 619-623.)
As noted previously, effective January 1, 2019, the Legislature passed Senate Bill No. 1437 "'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.'" (People v. Gentile (2020) 10 Cal.5th 830, 846-847 (Gentile); see Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature accomplished this by amending sections 188 and 189. Effective January 1, 2022, Senate Bill No. 775 expanded the scope of those changes to 17 encompass, among other things, murder convictions "under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime." (§ 1172.6, subd. (a), as amended by Stats. 2021, ch. 551, § 2.)
Senate Bill No. 1437 also created a procedure for offenders previously convicted of felony murder or murder under the natural and probable consequences doctrine to seek retroactive relief if they could no longer be convicted of murder under the new law. (§ 1172.6, subd. (a); Gentile, supra, 10 Cal.5th at p. 843; Lewis, supra, 11 Cal.5th at p. 959; Strong, supra, 13 Cal.5th at p. 708.) "[T]he process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citation], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to . . . [s]ection 188 or 189 made effective January 1, 2019 . . . ." (Strong, at p. 708.) "When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.' [Citations.] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Ibid.)
In Lewis, supra, 11 Cal.5th 952, our Supreme Court explained the trial court's role when faced with a section 1172.6 petition: Petitioners who request counsel "are entitled to the appointment of counsel upon the filing of a facially sufficient petition . . . ." (Id. at p. 957.) "[O]nly after the appointment of counsel and the opportunity for briefing may 18 the superior court consider the record of conviction to determine whether 'the petitioner makes a prima facie showing that he or she is entitled to relief.'" (Ibid., italics omitted; see id. at p. 966 ["a complying petition is filed; the court appoints counsel, if requested; the issue is briefed; and then the court makes [its] prima facie determination"].) The court's "prima facie inquiry . . . is limited. . . . '"[T]he 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.'" (Id. at p. 971.) Importantly, "[i]n reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.) "[T]he 'prima facie bar was intentionally and correctly set very low.'" (Ibid.)
If a petitioner has made a prima facie showing of entitlement to relief, "'the court shall issue an order to show cause.'" (Strong, supra, 13 Cal.5th at p. 708.) Once the court determines that a defendant has made a prima facie showing, it "must [then] hold an evidentiary hearing at which the prosecution bears the burden of proving, 'beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder' under state law as amended by Senate Bill [No.] 1437. [Citation.] 'A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for 19 resentencing.' [Citation.] 'If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.'" (Strong, at p. 709; accord, Lewis, supra, 11 Cal.5th at p. 960.) "Senate Bill [No.] 1437 relief is unavailable if the defendant was either the actual killer, acted with the intent to kill, or 'was a major participant in the underlying felony and acted with reckless indifference to human life . . . .'" (Strong, at p. 710.)
In Senate Bill No. 775, the Legislature amended the language of section 1172.6, codifying Lewis, supra, 11 Cal.5th 952, expanding the scope of the petitioning process and clarifying some of the procedural requirements. (Stats. 2021, ch. 551, § 2.)
B. Standard of Review
In this case, the trial court denied defendant's petition at the prima facie stage under section 1172.6, subdivision (c). A denial at this stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 960.) This is a purely legal conclusion, which we review de novo. (See id. at p. 961.)
C. Analysis
As previously noted, effective January 1, 2022, the Legislature amended section 1172.6 to codify the holding in Lewis, supra, 11 Cal.5th 952 regarding the right to counsel and standard for determining the existence of a prima facie case. (Sen. Bill No. 775, § 1, subd. (b), Stats. 2021 ch. 551 (2020-2021 Reg. Sess.).) Section 1172.6 20 sets out the timing of briefing on a section 1172.6 petition and now makes clear the court must hold its hearing "[a]fter the parties have had an opportunity to submit briefings . . . ." (§ 1172.6, subd. (c).) Section 1172.6 now provides that, upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. (§ 1172.6, subd. (b)(3).)
Subdivision (c) of section 1172.6 provides in part, with January 1, 2022, additions in italics: "Within 60 days after service of a petition that meets the requirements set forth in subdivision (b), the prosecutor shall file and serve a response. 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. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief."
Here, defendant requested counsel be appointed, and averred in support of the petition that she believed she qualified for resentencing and did not believe she would be able to be convicted of first or second degree murder because of changes to section 189 made effective January 1, 2019. The trial court appointed counsel for defendant immediately before it summarily denied defendant's petition on March 22, 2019, and prior to any briefing in the case. Though defendant was represented by counsel at the March 22, 2019, hearing, counsel had just been appointed and was not given any opportunity to file any briefs or a reply brief to the People's March 25, 2019, opposition brief before the court summarily denied the petition.
Additionally, our Supreme Court recently made clear that when, as here, a defendant's case "was tried before both Banks and Clark, the special circumstance findings do not preclude him from making out a prima facie case for resentencing under 21 section 1172.6." (Strong, supra, 13 Cal.5th at p. 721.) "This is true even if the trial evidence would have been sufficient to support the findings under Banks and Clark." (Id. at p. 710.) The Strong court noted that the Banks and Clark cases "both substantially clarified the law governing findings under . . . section 190.2, subdivision (d)." (Id. at p. 706.) The court explained that a pre-Banks and Clark special circumstance finding does not negate the showing that the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 "because the finding alone does not establish that the petitioner is in a class of defendants who would still be viewed as liable for murder under the current understanding of the major participant and reckless indifference requirements." (Strong, at pp. 717-718.)
Noting the differences between pre- and post-Banks and Clark special circumstance requirements, the Supreme Court observed the changes may "have altered what evidence defense counsel would have sought to introduce[,] . . . might have fundamentally altered trial strategies," and may have affected what jury instructions were requested or given. (Strong, supra, 13 Cal.5th at p. 719.) "An after-the-fact court review of a pre-Banks and Clark record does not account for all these differences. . . . And as the Legislature has made explicit in a recent amendment to the predecessor to section 1172.6, a court determination that substantial evidence supports a homicide conviction is not a basis for denying resentencing after an evidentiary hearing. [Citation.] Nor, then, is it a basis for denying a petitioner the opportunity to have an evidentiary hearing in the first place." (Id. at p. 720.) Thus, neither "the jury's pre-Banks and Clark 22 findings nor a court's later sufficiency of the evidence review amounts to the determination section 1172.6 requires, and neither set of findings supplies a basis to reject an otherwise adequate prima facie showing and deny issuance of an order to show cause." (Id. at p. 720.)
Here, the jury's felony-murder special-circumstances findings were made before our high court decided Banks and Clark. And the trial court found defendant ineligible for relief based on the attendant special circumstances findings that the murder was committed in the commission of the robbery and kidnapping. As defendant contends and the People properly concede, under Strong, the findings do not categorically render defendant ineligible for resentencing. (Strong, supra, 13 Cal.5th at p. 720.) Furthermore, a defendant's prima facie case is not barred even if the trial evidence was sufficient to support the special circumstances findings after Banks and Clark. (Strong, at p. 710; Lewis, supra, 11 Cal.5th at p. 972.) We therefore vacate the trial court's order and remand the matter for further proceedings consistent with Strong, Lewis, and section 1172.6.
IV
DISPOSITION
The trial court's order denying defendant's section 1172.6 petition is reversed. The matter is remanded for further proceedings consistent with Strong, Lewis, and section 1172.6, namely the trial court is directed to appoint counsel for defendant, allow briefing by the parties, issue an order to show cause under section 1172.6, 23 subdivision (c), and to hold an evidentiary hearing on defendant's petition for resentencing pursuant to section 1172.6, subdivision (d).
We concur: MILLER Acting P. J., FIELDS J. 24