Opinion
H048932
04-07-2022
THE PEOPLE, Plaintiff and Respondent, v. EDWARD MILLER, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 150722)
BAMATTRE-MANOUKIAN, J.
I. INTRODUCTION
In 1993, a jury convicted defendant Edward Miller of first degree felony murder (Pen. Code, §§ 187, 189), robbery (§ 211), and kidnapping (§ 207), finding true the felony-murder special circumstance allegations that the murder was committed during a robbery and a kidnapping (Former § 190.2, subd. (a)(17)(i), (ii)) and the allegation that defendant personally used a dangerous and deadly weapon during the commission of the murder and the robbery (§ 12022, subd. (b)). The superior court sentenced defendant to life without the possibility of parole. This court affirmed the judgment in 1994 in case No. H011204.
All further statutory references are to the Penal Code.
Currently section 190.2, subdivision (a)(17)(A), (B).
We previously granted defendant's request for judicial notice of this court's opinion in case No. H011204. (See Evid. Code, § 452.)
In 2021, defendant filed a petition for resentencing pursuant to section 1170.95, which was enacted by the Legislature through its passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). (Stats. 2018, ch. 1015, § 4.) As relevant here, section 1170.95 allows individuals convicted of felony murder to petition the superior court to vacate the conviction under recent changes to the law that limited the scope of the felony murder rule to individuals who were major participants in the underlying felony and acted with reckless indifference to human life. The superior court denied the petition, determining that "readily ascertainable facts from the record show [defendant] is ineligible for relief as a matter of law" based on the jury's felony-murder special circumstance findings and this court's decision in the direct appeal to uphold the findings despite an instructional error. In the direct appeal, this court determined that there was "ample evidence that defendant participated in all aspects of the underlying crimes, was a major participant in the murder, and acted with a reckless indifference to human life," such that the trial court's failure to instruct the jury that it must find defendant was a major participant in the underlying felony and acted with reckless indifference to human life was harmless beyond a reasonable doubt.
The felony-murder special circumstance statute required individuals who were not the actual killer and did not act with the intent to kill to be major participants in the underlying felony and act with reckless indifference to human life, as the statute does today. (See former § 190.2, subd. (a)(17); § 190.2, subd. (a)(17), (d).)
Defendant contends that the superior court erred because it relied on the record of conviction to deny the petition without first appointing him counsel. Defendant also contends that the superior court erred in determining that he was ineligible for relief as a matter of law because this court's decision to uphold the felony-murder special circumstance findings was rendered before the California Supreme Court's rulings in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which construed the felony-murder special circumstance statute. The Attorney General concedes that the superior court should have appointed defendant counsel but contends that the error was harmless based on this court's decision in the direct appeal. The Attorney General also contends that even if this court's decision in the direct appeal does not preclude relief as a matter of law, defendant must first challenge the felony-murder special circumstance findings in a petition for writ of habeas corpus and, if successful, petition for resentencing under section 1170.95.
For reasons that we will explain, we determine that the superior court erred when it relied on the record of conviction to deny the section 1170.95 petition without appointing defendant counsel. We conclude that the error was prejudicial because defendant has never had a judicial determination under Banks and Clark of whether sufficient evidence supports the felony-murder special circumstance findings. Accordingly, we reverse the superior court's order denying defendant's section 1170.95 petition and remand the matter for the court to appoint defendant counsel and to conduct a sufficiency-of-the-evidence review under Banks and Clark.
II. FACTUAL AND PROCEDURAL BACKGROUND
We quote the facts stated in this court's opinion in case No. H011204.
"Defendant was convicted of murdering Gonzalo Romero, whose body was found in the creek area behind San Jose High School on Saturday, October 27, 1990.
"The victim drove a catering truck for his brother, Rubin, who was in the restaurant business. Gonzalo sold food, drinks, and cigarettes, driving a route which targeted various business locations. After finishing his shift around 9 p.m. Friday, October 26, Romero parked the catering truck at its warehouse/garage and drove his red Chrysler LeBaron convertible to Rubin's restaurant, where he turned over the day's proceeds. Gonzalo ordinarily withheld $100-$150 in coin and paper currency to be used as change the following day. He kept this money in a cash box; at the end of the business day, he would transfer the cash box to his own vehicle. He would also transfer to his own car the business's cigarette stock. This stock was typically replenished every evening after work and consisted of 10-15 cartons of cigarettes, each carton containing 10 packages. On this particular evening, Gonzalo was wearing a distinctive and expensive jeweled wristwatch.
"Gonzalo spent several hours at his brother's restaurant during which time he drank a few beers and conversed with an acquaintance, Norberto Romero. At approximately 1:30 a.m., Gonzalo left for home; the cash box and cigarettes were in his car. Concerned that Gonzalo was either inebriated or too tired to drive, Norberto offered to drive Gonzalo home. Gonzalo declined the offer, but Norberto followed the victim out of concern for his safety. After turning onto 26th street, Gonzalo drove the Chrysler a block or so and then parked at the curb near the intersection of 26th and St. James. Norberto waited 20-30 minutes and then saw Gonzalo lie down inside the car. Norberto approached the Chrysler and saw that Gonzalo had fallen asleep. Believing Gonzalo would be safe, Norberto drove home at about 2:30 a.m.
"At approximately 7 a.m. Saturday morning, October 27, 1990, San Jose Police Officer Kevin Fagalde was dispatched to 208 North 26th street on a report of suspicious circumstances. Upon his investigation, he saw large amounts of blood in and about the driveway, sidewalk, and curb. The officer discovered a concrete cinder block covered with blood and hair, as well as marks indicating that something or someone had been dragged through the blood. The evidence he observed caused him to conclude that a bloody struggle had occurred at the scene. Fagalde's partner, Daniel Archie, saw similar types of cinder blocks at a construction site across the street. He also noticed shoe prints on the dirt yard area adjoining the construction site.
"Gonzolo's body was discovered later that morning about 9 a.m. by two teachers who had met at San Jose High School for a game of tennis. When they pulled into the school parking lot, they saw on the pavement a large pool of blood, a bloodied piece of white cloth, and a line of blood that looked like heel marks from a dragged body. While one teacher telephoned the police, the other followed the bloody heel marks into a nearby creek gully where she discovered the victim's body, which she described as 'a bloody white object.'
"Evidence at the 26th Street scene indicated that Gonzalo had been beaten with a cinder block and dragged up the driveway to a fence, down the driveway to the street and then along the street gutter. Along the way, there were numerous blood spatters which indicated distinct beating sites. Hair and 'medium velocity blood stains' were found on a cinder block at the scene. The latter term applies where the blood spatters or radiates outward indicating that the loss of blood has been caused by force applied to the body rather than natural bleeding. The cessation of drag marks in the gutter indicated that the body had been loaded into a car at that point; the quantity of blood demonstrated that Gonzalo was still alive when he was placed into the car. Based on the amount of blood lost at the scene, however, investigating officers believed that only immediate hospitalization could have saved the victim's life.
"Police found two main areas of blood deposits at the high school indicative of two separate beating sites. One of the sites contained a pool of liquid believed to have been urine. Since urine is often released at time of death, it was theorized that this was where Gonzalo had died. This theory was also supported by the absence of blood between this point and the final resting place of the body some 100 feet away in the creek gully. The lack of blood is significant because large amounts of blood are deposited only when a circulatory system is functioning and can thus replenish blood supplies near the site of a wound. A chunk of concrete found at the high school also contained medium velocity blood stains.
"Defendant had spent the previous evening with James Lankford, Rickie Fultz, and two other friends, one of whom was named Milton Paul. After driving around for awhile, the men drove to a party across the street from the home of Lankford's girlfriend. Lankford remained at the party when the other men drove to a fast food restaurant located at the intersection of King and Alum Rock. Fultz left the restaurant around 1 a.m. and did not see defendant again until the following morning.
"At approximately 4 a.m., defendant rang the doorbell of Rita Franco's home at 244 North 26th street; Franco's home was located three to four houses away from the bloody crime scene. Defendant was a friend of Franco's son. When Franco told defendant everyone was asleep, he smiled, said, 'okay,' and then left. Franco did not notice anything unusual about defendant's manner or clothes. As defendant left, she saw him approach the sidewalk; Franco did not hear anything out of the ordinary that morning, nor did she hear any other voices or see anyone else in defendant's company.
"Lankford spent the night at his girlfriend's house near 33rd Street. While walking home the next morning, he saw defendant dragging a white object near San Jose High School. Defendant was alone. Defendant asked Lankford if he could get a change of clothes at Lankford's house and offered Lankford a ride. Afraid the red convertible defendant was driving might be stolen, Lankford declined the ride. Shortly after Lankford arrived home, however, defendant showed up with the red convertible. When the two men then drove to a McDonald's restaurant, Lankford noticed there were blood stains in the car.
"At approximately 8:30 a.m., Saturday morning, Lankford telephoned Fultz; the men then drove to Fultz's apartment. Lankford changed clothes at Fultz's house, a practice which was not unusual as he and Fultz were good friends and often 'swapped clothes back and forth.' Defendant also asked for a change of clothing. This was unusual since defendant had never kept any clothes at Fultz's house and he and Fultz were not in the habit of exchanging clothes. Fultz lent defendant a T-shirt and some socks. Fultz told defendant to put his dirty clothes in the closet, but instead defendant threw his socks into the garbage. The police later found a pair of socks and some shorts in the trash outside the apartment. The socks were splattered with the victim's medium velocity blood stains.
"At some point, Milton Paul also arrived at Fultz's apartment. Around 9:30 a.m., the four men drove off in the red convertible. As they left, Paul remarked that there was blood in the car. Defendant replied that it was 'ketchup' and 'bird shit.' Fultz saw 'a bunch of boxes of cartons of cigarettes' inside the car in a small box. Lankford saw a cash box in the car, and also noticed that defendant was wearing a jeweled watch Lankford had never seen before. Later that morning, Fultz saw defendant selling packages of cigarettes at Roosevelt Park. Defendant said he had given a Mexican friend four rocks of cocaine in exchange for the car.
"Meanwhile, the police had secured the crime scene at the high school and were in the process of collecting evidence. At about 3:20 p.m. that afternoon, Roberta Wehrfritz and her husband were driving near the high school behind a red Chrysler convertible when they saw four young black men leap from the moving car. Defendant jumped over the bridge railing; Lankford and Fultz walked home after escaping from the car. The empty vehicle crashed into the concrete wall of the bridge which traversed the nearby creek; the vehicle came to a halt after striking a cyclone fence. Mrs. Wehrfritz later identified defendant as one of the individuals who had jumped from the car.
"Later that afternoon, Fultz approached an off-duty San Jose Police Officer who was working a security shift at San Jose Medical Center. By this time, Fultz believed defendanthad stolen the car and was also fearful a murder might have been committed. Afraid he might be implicated in defendant's criminal conduct, Fultz told the officer about defendant and the car, including its appearance and contents. At that point, Wehrfritz was transported to the hospital where she identified Fultz as one of the men who had fled from the car. Later that afternoon, Fultz led the police to Lankford's house where Lankford was arrested.
"In the meantime, after observing the abandonment of the red convertible, police officers had begun a search along the creek bed and adjacent streets. Over a period of several hours, defendant led police officers on a lengthy chase. During this period, police received reports of numerous sightings from residents. At one point, defendant was discovered hiding underneath someone's bed and was chased by the occupant through the streets into another home. The police eventually surrounded the home and entered with a pair of police dogs. When they did so, defendant jumped through a glass window after which he was attacked and bitten by a police dog. Defendant was then placed under arrest.
"Police found the victim's watch in defendant's pants pocket; they also found a package of cigarettes and one dime in defendant's possession. Defendant was not wearing socks or shoes. However, a pair of shoes later found in the creek area appeared to be the same size and to have the same ribbing pattern as those which caused the prints found in the blood. The shoes were similar to those which the defendant had been wearing. No blood was found on the shoes. However, if the perpetrator had run along a creek bed, fresh blood stains on the shoes would have been washed away by the water.
"An autopsy revealed that Gonzalo had been killed by numerous severe blows to the head. The blows were inflicted with a blunt instrument while the victim was still alive. The victim had sustained multiple skull fractures, had a gaping three-by-five-inch wound on the left side of his head, had suffered two-inch lacerations on his forehead and right eyebrow and had also sustained fractures to the jaw and teeth. The blunt instrument wounds were consistent with the use of a cinder block and pieces of concrete such as were found at the 26th Street scene and the high school.
"Gonzalo also had wide chest and back abrasions which were consistent with his having been dragged; these abrasions were inflicted while he was still alive. The autopsy also revealed numerous 'defense wounds' on the victim's arm and neck lacerations, both of which had been inflicted by a sharp instrument. These wounds were consistent with a drywall knife found at the 26th Street site. At the time of his death, the victim had a blood alcohol content of .10 percent.
"An examination of the Chrysler revealed blood stains on the passenger seat, door, console, and trunk. The blood stains demonstrated that the victim had been slumped in the passenger seat, and had also been placed in the trunk. Some of these blood stains also contained hair. Blood on the wristwatch and knife matched that of the victim.
"Inside the car, officers found a metal cash box containing coins in the amount of $14.90; the rest of the money was missing. A wooden display box containing cigarette cartons was also found in the car along with a baggie of marijuana.
"The defense called several witnesses who lived near the 26th street scene and had heard the sound of a car and/or two or more people talking or arguing between midnight and 4 a.m. Saturday morning. One witness testified she heard someone yell, 'Let's take it to San Jose High.'
"After being individually questioned at the police station, defendant, Fultz, and Lankford were confined in or near the same jail cell. While in jail, Fultz heard Lankford complaining about the trouble they were in and asking why defendant had gotten him into that situation. Fultz overheard defendant tell Lankford that he had hit 'the guy' once with a brick but that 'Ice' had killed the victim; defendant went on to state that Lankford knew Ice. Fultz and Lankford testified they knew of no such person. Lankford's trial testimony was evasive. However, when pressed, he indicated defendant had said something about 'hit[ting] the man once with a rock, and somebody else [doing] the rest of the killing.' He remembered defendant saying something about kicking someone or something. Lankford testified that defendant fell asleep during the conversation.
"The police tried to locate 'Ice,' but were unable to find any such person."
B. Procedural History
1. Trial Proceedings
A jury convicted defendant of first degree felony murder (§§ 187, 189), robbery (§ 211), and kidnapping (§ 207), finding true the felony-murder special circumstance allegations that the murder was committed during a robbery and a kidnapping (former § 190.2, subd. (a)(17)(i), (ii)) and the allegation that defendant personally used a dangerous and deadly weapon, i.e., a knife, cinder block, and pieces of concrete, during the commission of the murder and the robbery (§ 12022, subd. (b)). The superior court sentenced defendant to life without the possibility of parole.
2. Direct Appeal
This court affirmed the judgment in 1994. Among other issues, this court determined that the trial court's failure to instruct the jury that the felony-murder special circumstance allegations, if predicated on an aiding and abetting theory, required a finding that defendant was a major participant in the underlying felony and acted with reckless indifference to human life was harmless beyond a reasonable doubt based on the "overwhelming evidence of defendant's guilt."
3. Section 1170.95 Proceedings
In 2021, defendant filed a section 1170.95 petition in the superior court. As relevant here, the handwritten petition stated that "[a] complaint, information, and/or indictment was filed against [him] that allowed the prosecution to proceed under a theory of felony murder [or] under the natural and probable consequences doctrine"; "[a]t trial, [he] was convicted of first degree murder pursuant to the felony murder rule and/or the natural and probable consequences doctrine"; and he "could not now be convicted of first degree murder because of changes made to . . . sections 188 and 189, effective January 1, 2019." In addition, defendant stated that he was not the actual killer and the victim was not a peace officer in the performance of his or her duties. Defendant requested counsel.
The superior court denied the petition. Following this court's decision in People v. Drayton (2020) 47 Cal.App.5th 965, 975-976, overruled in part by People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis), the superior court performed an initial review to determine defendant's eligibility for relief before appointing counsel or requesting briefing. Relying on this court's opinion in the direct appeal, the superior court determined that defendant was ineligible for section 1170.95 relief as a matter of law based on this court's finding that there was ample evidence that defendant participated in all aspects of the underlying crimes, was a major participant in the murder, and acted with reckless indifference to human life such that the trial court's instructional error on the felony-murder special circumstance allegations was harmless beyond a reasonable doubt.
III. DISCUSSION
A. Statutory Framework and the Standard of Review
The Legislature enacted Senate Bill 1437 to "amend the felony murder rule and the natural and probable consequences doctrine . . . 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 of the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill amended sections 188 and 189, which pertain to the definition of malice and the degrees of murder. (Stats. 2018, ch. 1015, §§ 2-3.)
The Legislature amended section 188 by adding subdivision (a)(3), which provides: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (Stats. 2018, ch. 1015, § 2; § 188, subd. (a)(3).) And section 189, subdivision (e), now limits liability for murder to a person who was either the actual killer or, though not the actual killer, acted "with intent to kill" and "aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer" in the commission of 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." (Stats. 2018, ch. 1015, § 3; § 189, subd. (e).)
In addition to the amendments to sections 188 and 189, Senate Bill 1437 added section 1170.95. (Stats. 2018, ch. 1015, § 4.) As relevant here, section 1170.95 allows "[a] person convicted of felony murder or murder 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" to petition the sentencing court to vacate the murder conviction and be resentenced on any remaining counts. (§ 1170.95, subd. (a).) All of the following conditions must apply to warrant section 1170.95 relief: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder 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"; "(2) The petitioner was convicted of murder . . . following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder"; and "(3) The petitioner could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a).)
A section 1170.95 petition is required to include: "(A) A declaration by the petitioner that [he or she] is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petitioner's conviction. [And] [¶] (C) [w]hether the petitioner requests the appointment of counsel." (§ 1170.95, subd. (b)(1).) "[U]pon the filing of a facially sufficient petition," the statute "requir[es] that counsel be appointed." (Lewis, supra, 11 Cal.5th at p. 970.) "[T]hen the court proceeds to subdivision (c) to assess whether the petitioner has made 'a prima facie showing' for relief. (§ 1170.95, subd. (c).)" (Id. at p. 960.)
"[T]he prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citations.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner."' [Citations.]" (Lewis, supra, 11 Cal.5th at p. 971.)
If the court finds that a prima facie showing has been made, it issues an order to show cause and holds a hearing "to determine whether to vacate the murder . . . conviction and to recall the sentence and resentence the petitioner on any remaining counts." (§ 1170.95, subd. (d)(1).) The burden of proof at the hearing is on the prosecution "to prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (Id., subd. (d)(3).) Both parties may rely on the record of conviction or present new or additional evidence at the hearing. (Ibid.) Alternatively, "[t]he parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have the murder . . . conviction vacated and to be resentenced. If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner's conviction and resentence the petitioner." (Id., subd. (d)(2).)
We determine questions of statutory interpretation de novo. (See Lewis, supra, 11 Cal.5th at p. 961.)
B. The Felony-Murder Special Circumstance Statute and Banks and Clark
An individual convicted of first degree murder may be sentenced to death or life without the possibility of parole if a special circumstance enumerated under section 190.2 is found true. "One such special circumstance is the felony-murder special circumstance. The requirements of the felony-murder special circumstance mirror the post-Senate Bill 1437 requirements of felony murder. [Citations.] That is, the felony-murder special circumstance applies where (1) the murder occurred during the commission of a specified felony and (2) the defendant was the actual killer; with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in the commission of the murder; or with reckless indifference to human life and as a major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in the commission of the felony. (§ 190.2, subds. (a)(17), (c), (d).)" (People v. Pineda (2021) 66 Cal.App.5th 792, 798 (Pineda), review granted Sept. 29, 2021, S270513.)
In Banks and Clark, the California Supreme Court "clarified the meaning of the special circumstances statute." (In re Scoggins (2020) 9 Cal.5th 667, 671.) In Banks, the court considered "under what circumstances an accomplice who lacks the intent to kill may qualify as a major participant" under section 190.2. (Banks, supra, 61 Cal.4th at p. 794.) The court held that "a defendant's personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder," and identified five factors relevant to that determination. (Id. at pp. 802, 803.) The factors are: (1) "What role did the defendant have in planning the criminal enterprise that led to one or more deaths?"; (2) "What role did the defendant have in supplying or using lethal weapons?"; (3) "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?"; (4) "Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death?"; and (5) "What did the defendant do after lethal force was used?" (Id. at p. 803, fn. omitted.) "No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant's participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered 'major' [citation]." (Ibid.) The court also stated that section 190.2's requirement that an accomplice act with reckless indifference to human life mandates that" 'the defendant be "subjectively aware that his or her participation in the felony involved a grave risk of death," '" and that "[a]wareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient." (Banks, supra, at pp. 807, 808.)
In Clark, the California Supreme Court determined that reckless indifference to human life has "both subjective and objective elements." (Clark, supra, 63 Cal.4th at p. 617.) "The subjective element is the defendant's conscious disregard of [the grave] risks [of death] known to him or her." (Ibid.) As to the objective element," '[t]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.'" (Ibid.) The court identified five factors relevant to whether the defendant acted with reckless indifference to human life under the totality of the circumstances. (Id. at p. 618.) Those factors are: (1) the defendant's knowledge of weapons, the number of weapons, and whether the defendant used a weapon; (2) the defendant's physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) the duration of the underlying felony; (4) the defendant's knowledge of his or her cohort's likelihood of killing; and (5) the defendant's efforts to minimize the risks of violence during the underlying felony. (Id. at pp. 618-622.) "Just as [the court] said of the factors concerning major participant status in Banks, '[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient.'" (Id. at p. 618.)
"A defendant with a pre-Banks and Clark felony-murder special-circumstance finding whose conviction became final prior to Banks and Clark may file a petition for habeas corpus seeking to have the finding invalidated. Such a defendant 'is entitled to habeas corpus relief" 'if there is no material dispute as to the facts relating to his conviction'"' and 'the special circumstances statute as construed in Banks and Clark' did not prohibit his conduct." (Pineda, supra, 66 Cal.App.5th at p. 799, review granted.)
C. The Failure to Appoint of Counsel
In Lewis, the California Supreme Court recently held that section 1170.95 requires "the appointment of counsel upon the filing of a facially sufficient petition (§ 1170.95, subds. (b), (c)) and that only after the appointment of counsel and the opportunity for briefing may 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.' (§ 1170.95, subd. (c).)" (Lewis, supra, 11 Cal.5th at p. 958.) It overruled the Courts of Appeal, including this court in Drayton, that held that section 1170.95 requires superior courts to conduct a two-step prima facie review, determining instead that section 1170.95, subdivision (c) "describe[s] only a single prima facie showing." (Lewis, supra, at p. 962.) Thus, if a petition complying with section 1170.95, subdivision (a) is filed, "the court appoints counsel, if requested; the issue is briefed; and then the court makes [a] prima facie determination" of petitioner's eligibility for relief. (Lewis, supra, at p. 966, fn. omitted.)
Here, as the Attorney General concedes, the superior court erred when it denied defendant's petition by relying on the record of conviction without first appointing defendant counsel.
D. Defendant Is Entitled to a Judicial Determination under Banks and Clark
The California Supreme Court determined in Lewis that a superior court's failure to appoint counsel upon the filing of a facially sufficient section 1170.95 petition is state law error only that does not amount to structural error. (Lewis, supra, 11 Cal.5th at p. 973.) Thus, when a superior court has denied a facially sufficient petition at the prima facie stage without appointing counsel, the petitioner must" 'demonstrate there is a reasonable probability that in the absence of the error he [or she] would have obtained a more favorable result.' [Citations.]" (Id. at p. 974.)
Defendant contends that the superior court's error was prejudicial because the jury's felony-murder special circumstance findings do not preclude section 1170.95 relief as a matter of law since they predate Banks and Clark, as does this court's decision to uphold the findings in the direct appeal. The Attorney General contends that the error was harmless because defendant is ineligible for section 1170.95 relief based on this court's decision in the direct appeal, which determined that there was "ample evidence that defendant participated in all aspects of the underlying crimes, was a major participant in the murder, and acted with a reckless indifference to human life," such that an instructional error on the felony-murder special circumstance allegations was harmless beyond a reasonable doubt. The Attorney General argues that the principles stated in Banks and Clark "existed when [defendant] was convicted" based on the United States Supreme Court's decisions in Enmund v. Florida (1982) 458 U.S. 782 and Tison v. Arizona (1987) 481 U.S. 137.
The Courts of Appeal are divided on whether a pre-Banks and Clark felony-murder special circumstance finding prevents a defendant from demonstrating prima facie entitlement to section 1170.95 relief (see Pineda, supra, 66 Cal.App.5th at pp. 799-801 [detailing the split], review granted), and the issue is currently pending before the California Supreme Court (see People v. Strong (Dec. 18, 2020, C091162) Cal.App.5th , review granted Mar. 10, 2021, S266606). In Pineda, this court followed the First District's determination in People v. Secrease (2021) 63 Cal.App.5th 231, 255 (Secrease), review granted June 30, 2021, S268862, that when a defendant convicted of murder with a felony-murder special circumstance finding" 'has never been afforded a Banks and Clark sufficiency-of-the-evidence review-by any court, at the trial or appellate level-section 1170.95 courts have an obligation to undertake such an analysis at the prima facie entitlement-to-relief stage of a resentencing proceeding under subdivision (c) of the statute.'" (Pineda, supra, at p. 801, review granted.) Pineda and Secrease are dispositive here.
As defendant points out, this court's decision in the direct appeal was filed in 1994, decades before the Banks and Clark decisions, and there is no indication that this court considered the principles stated in Banks and Clark in upholding the felony-murder special circumstance findings despite the trial court's instructional error. There is also no indication in the record before us that defendant has had a Banks and Clark sufficiency-of-the-evidence review of the special circumstance findings. Defendant is therefore entitled to such a review at the prima facie stage of the section 1170.95 proceedings. (See Pineda, supra, 66 Cal.App.5th at p. 795 [pre-Banks and Clark murder defendant petitioning for section 1170.95 resentencing relief "is entitled to a judicial determination as to whether his conduct is proscribed by the special circumstances statute, as construed in Banks and Clark"], review granted.) Given defendant's entitlement to a sufficiency-of-the-evidence review under Banks and Clark at the prima facie stage of the section 1170.95 proceedings," 'there is a reasonable probability that in the absence of the error' "-namely, the trial court's failure to appoint defendant counsel upon the filing of a facially sufficient petition-" 'he . . . would have obtained a more favorable result."' [Citations.]" (Lewis, supra, 11 Cal.5th at p. 974.)
Accordingly, we remand the matter to the superior court to appoint counsel and to determine based on the California Supreme Court's guidance in Banks and Clark whether there is sufficient evidence in the record to support the jury's felony-murder special circumstance findings. Thus," 'we are remanding the case for resumption of proceedings at the section 1170.95, subdivision (c) entitlement-to-relief stage of the process, where the court's task will be narrowly focused on whether, without resolving conflicts in the evidence and making findings, the evidence presented at trial was sufficient to support the felony-murder special-circumstance finding[s] under Banks and Clark. If the answer to that is yes, the section 190.2, subdivision (d) finding[s] made against [defendant] foreclose[] him from further litigating that issue, thus rendering him ineligible for resentencing relief as a matter of law. If the answer is no, an order to show cause must issue and an evidentiary hearing must be held under section 1170.95, subdivision (d)(3).'" (Pineda, supra, 66 Cal.App.5th at pp. 801-802, review granted.)
Although Pineda and Secrease suggest that this sufficiency-of-the-evidence determination can be made on appeal with an adequate appellate record, the record before us includes only defendant's petition and the superior court's denial order. Moreover, "[r]emand will afford the parties the opportunity to fully develop their positions on this potentially dispositive issue with the full benefit of the guidance set forth here and in [Pineda and] Secrease." (Pineda, supra, 66 Cal.App.5th at p. 802, review granted.)
IV. DISPOSITION
The superior court's order denying defendant's Penal Code section 1170.95 petition is reversed. The matter is remanded to the superior court for the appointment of counsel and for the determination of whether the evidence presented at trial was sufficient under People v. Banks (2015) 61 Cal.4th 788, 803 and People v. Clark (2016) 63 Cal.4th 522, 614-632 to support the jury's felony-murder special circumstance findings. If the answer to that is yes, the Penal Code section 190.2, subdivision (d) findings render defendant ineligible for resentencing relief as a matter of law. If the answer is no, an order to show cause shall issue and an evidentiary hearing shall be held under Penal Code section 1170.95, subdivision (d)(3).
WE CONCUR: ELIA, ACTING P.J. WILSON, J.