Opinion
B299193
05-20-2020
THE PEOPLE, Plaintiff and Respondent, v. FRANK EDDIE QUINTERO, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Susan Sullivan Pithey, Assistant Attorneys General, Amanda V. Lopez and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA060104) APPEAL from an order of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Reversed and remanded. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Susan Sullivan Pithey, Assistant Attorneys General, Amanda V. Lopez and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Frank Eddie Quintero (defendant) appeals from the summary denial of his petition to vacate his 2003 murder conviction and to resentence him, filed pursuant to Penal Code section 1170.95. He contends that he made a prima facie claim for relief and that the trial court erred in summarily denying it based upon the jury's special circumstance finding under section 190.2 subdivisions (a)(17) and (d). Respondent contends that the trial court correctly relied on the special circumstance finding, and further that defendant was required to first have it stricken by way of petition for writ of habeas corpus. We agree with defendant, and reverse the trial court's order. However, we deny without prejudice the petition for writ of habeas corpus as premature.
All further statutory references are to the Penal Code, unless otherwise indicated.
BACKGROUND
The 2003 murder conviction and appeal
In 2002 defendant and three codefendants, Vincent Francisco Lopez (Lopez), Raymond Salvador Ramirez (Ramirez), and Juan Lucas Soto (Soto), were charged with first degree murder committed during the commission of a robbery, as well as two counts of second degree robbery, and one count each of assault with a deadly weapon and conspiracy to commit robbery. Defendant and his codefendants were subsequently convicted of all charges. In addition, the jury found true the special circumstance alleged under former section 190.2, subdivision (a)(17), that defendant was an aider and abettor of a robbery; and pursuant to section 190.2, subdivision (d), the jury found that defendant had acted as a major participant with reckless indifference to human life. The trial court sentenced defendant to life in prison without the possibility of parole, and stayed the sentences imposed as to the remaining counts. On direct appeal this court affirmed the judgment, concluding that evidence of gang affiliation was properly admitted, the jury was properly instructed on defendant's culpability as a conspirator or an aider and abettor, and that the admission of the statements of codefendant Raymond Ramirez to police did not violate his Sixth Amendment right to confrontation. The California Supreme Court denied review. (See People v. Lopez (Oct. 6, 2004, B170919) [nonpub. opn.] (Lopez I).) Summary of 2003 trial evidence
In the memorandum of decision denying defendant's section 1170.95 petition, the trial court stated that it had reviewed the appellate opinion in Lopez I. We therefore summarize the evidence from the statement of facts in that opinion.
On an afternoon in 2002, defendant and Ramirez were with Soto and Soto's girlfriend, Lorraine Calvillo (Calvillo) in her car, which Soto drove to the residence of Bobby Bionghi (Bionghi), a former gang member. The group had known each other for about a year through their memberships in various cliques of Bionghi's gang. Lopez, who was also there, conversed with defendant and Ramirez while nearby Soto asked Bionghi, in a "common loud tone of voice," if he would be the getaway driver for a robbery. Soto removed a .357 magnum revolver from a compartment under the hood of the car, and Bionghi observed two or three other guns there before Soto put the weapon back. Lopez then spoke to Bionghi about the robbery plan, mentioning a store in El Monte and a nearby tax business that had an easily-accessible box full of money in the lobby. Lopez added that it would be a quick job because he knew exactly where the box of money was located. Bionghi, who was on parole, said he was not interested in participating. Bionghi did not recall whether Ramirez or defendant spoke about the tax business. However, he saw Soto speaking with Ramirez.
Defendant, Ramirez, Soto, and Lopez then left in Calvillo's car. Calvillo, who was in the front passenger seat, heard them saying something about a liquor store, but when she asked what they were talking about, the men told her not to worry about it. Calvillo testified that Soto said "something being said about -- that he knew that tax place, they were just going to go -- it was a clear box of money and that he was going -- and they were just going to go inside just to check it out and they would be right out." She remembered hearing defendant say, "No, I don't want to go." She also confirmed that defendant said, "I don't want to be involved in this. I don't want to have anything to do with this." Soto replied, "Oh, don't worry about it. We are not going there. I just stopped right here at this other place."
Soto parked and Calvillo remained in the car. While Ramirez stood outside, Soto, Lopez, and defendant went inside the tax business operated by Carmen Castro (Carmen), who was in the front office, and her brother, Camilo Castro (Camilo), who was in a rear office with Maria Lagos (Maria) and her son. In the lobby was a large charity donation box. After the three men entered, Carmen began screaming. Gunshots were heard just before one of the men entered the back office, pointed a gun at the three occupants. He then took their property, including items from Maria's purse, and ordered them to get under the desk. When the gunman entered the rear office, Maria could see two other men in the area closer to the front door of the business. Camilo heard a commotion in the lobby and the sound of someone breaking open the donation box. He later found most of the money gone. Carmen had been fatally shot in the back of her head with what was determined to be a .38-caliber or .357-caliber bullet. She also had a wound on the front of her head that appeared to have been made by a blunt object.
Charles Visitor (Visitor), who operated the neighboring business, heard gunshots, went outside, and when he did not see anything, he entered the tax business where he saw three men, two of whom were on the floor picking up money. Visitor managed to exit the business, but defendant grabbed him, pinned him against the window, struck him on the shoulder with an object which Visitor thought was a handgun, and then ran off. Soto then left the office, struck Visitor on the back of the head with an object, and also ran off. A third unidentified person ran past Visitor in the same direction as the others. Visitor then saw a dark-colored car, driven by a woman with at least three passengers, leave the area.
Calvillo testified that when the defendants got back into her car, she was in the driver's seat. She saw Lopez get into the front passenger seat with a lot of paper money in his pockets, and heard defendant and Soto saying they had money, but she did not see Ramirez with any money. She saw that both Lopez and Soto had a gun. When others in the car asked Soto why he had shot the woman, he said, because she would not stop yelling even after he told her to be quiet and had hit her. Lopez, who had taken a woman's purse, wallet, license and credit cards, tossed some of the items out the window onto the freeway, stating that he did not want to have her property in his possession. Ramirez said that while he was standing outside, he saw a man who he hit. One of the others said that he too had hit the man. The group went to Calvillo's home where the men divided the money four ways, and gave Calvillo gas money. Banks and Clark
When defendant's jury found true the special circumstance, section 190.2, subdivision (a)(17) provided in relevant part: "The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit . . . [¶] (A) Robbery in violation of Section 211 . . . ."
Section 190.2, subdivision (d) provided that "every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of [robbery] which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true . . . ."
In People v. Banks (2015) 61 Cal.4th 788 (Banks), and People v. Clark (2016) 63 Cal.4th 522 (Clark), our Supreme Court clarified the test for determining whether a defendant was a major participant in the underlying felony in a felony murder case and whether the defendant acted with reckless indifference to human life. The Banks court explained that prior federal authorities collectively place conduct on a spectrum, with felony-murder participants eligible for the death penalty only when their involvement is substantial and they demonstrate a reckless indifference to the grave risk of death created by their actions. Section 190.2(d) must be accorded the same meaning." (Banks, at p. 794.) In addition, "[s]ection 190.2(d) must be given the same interpretation irrespective of whether the defendant is subsequently sentenced to death or life imprisonment without parole." (Ibid.)
"Whether a category of crimes is sufficiently dangerous to warrant felony-murder treatment, and whether an individual participant has acted with reckless indifference to human life, are different inquiries." (Banks, supra, 61 Cal.4th at p. at p. 810.) The court articulated several factors relating to the determination whether the defendant was a major participant: "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 inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Id. at p. 803.) "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' [citations]." (Ibid.)
The court explained that a finding of reckless indifference to human life "'requires the defendant be "subjectively aware that his or her participation in the felony involved a grave risk of death."' [Citations.]" (Banks, supra, 61 Cal.4th at p. 807.) Thus, "felony murderers . . . who simply had awareness their confederates were armed and armed robberies carried a risk of death, lack the requisite reckless indifference to human life" because "only knowingly creating a 'grave risk of death' satisfies the constitutional minimum. [Citation.]'" (Id. at pp. 808-809.) In Banks, the court noted that the defendant knew of the plan to commit burglary and robbery; he was unarmed, but had reason to know that his accomplices were armed, although they were not known to have killed, attempted to kill, or participated in shootings before; and an accomplice's killing of the victim "was apparently a spontaneous response to armed resistance from the victim." (Id. at pp. 807, 810-811.) The court concluded that because the defendant did not subjectively know that "there would be a likelihood of resistance and the need to meet that resistance with lethal force, the evidence failed to show [the defendant] 'knowingly engag[ed] in criminal activities known to carry a grave risk of death.' [Citation.]" (Banks, at p. 811, quoting Tison v. Arizona (1987) 481 U.S. 137, 157.)
In Clark, the defendant was convicted of first degree murder, robbery-murder, and burglary-murder, with a true finding on the special circumstances allegation, based on his liability as an aider and abettor to an accomplice's fatal shooting of a victim during an attempt to rob an electronics store. There was no evidence Clark himself intended to kill the victim. On appeal, Clark claimed the evidence was insufficient to establish that he was a major participant in the underlying crimes or that he acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 610-611.) The court considered the factors enumerated in Banks, supra, 61 Cal.4th at page 803 (quoted above), and concluded first that the evidence showed that Clark "had a prominent, if not the most prominent, role in planning the criminal enterprise that led to the death of" the victim. (Clark, at p. 613.) However, no evidence was presented about defendant's role in supplying the weapon, or about defendant's awareness of the particular dangers posed by the crime, beyond scheduling the robbery after closing time, and no evidence was presented about his awareness of the past experience or conduct of the shooter. (Id. at p. 614.) "Defendant was in the area during the robbery, orchestrating the second wave of the burglary after [his accomplice] secured the store, but defendant was not in the immediate area where [the accomplice] shot [the victim]." (Ibid.) The court did not decide whether Clark was a major participant, as it found the evidence insufficient to support a finding that he exhibited a reckless indifference to human life. (Ibid.) Although the evidence of both requirements may overlap, a reckless indifference to human life requires evidence of the defendant's subjective state of mind which "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 actions." (Id. at pp. 615-617.)
Senate Bill No. 1437
Not long after the publication of Banks and Clark, the Legislature acted to "revise the felony murder rule to prohibit a participant in the commission or attempted commission of a felony that has been determined as inherently dangerous to human life to be imputed to have acted with implied malice, unless he or she personally committed the homicidal act." (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as introduced.) In 2018, the Legislature passed Senate Bill No. 1437 (S.B. 1437), which amended sections 188 and 189, effective January 1, 2019. As amended, section 188 limits a finding of malice as follows: "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." (§ 188, subd. (a)(3).) Subdivision (e) of section 189 now reads: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [including robbery] in which a 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."
Section 1170.95 was added by S.B. 1437 to provide a procedure by which those convicted of murder can seek retroactive relief if the changes in sections 188 or 189 would affect their previously affirmed convictions. (People v. Martinez (2019) 31 Cal.App.5th 719, 722.)
A petition under section 1170.95 must include the following allegations:
"(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.(§ 1170.95, subd. (a)(1)-(3).)
"(2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder.
"(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."
In addition, the petition must include the petitioner's declaration showing eligibility under all three enumerated conditions, as well as the superior court case number, year of conviction, and any request for appointment of counsel. (§ 1170.95, subd. (b)(1).) "If any of the information required by this subdivision is missing from the petition and cannot be readily ascertained by the court, the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information." (§ 1170.95, subd. (b)(2).) If the court's initial review reveals a prima facie showing that petitioner falls within the provisions of this section and the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. (§ 1170.95, subd. (c).) "The prosecutor shall file and serve a response . . . and the petitioner may file and serve a reply . . . . 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." (Ibid.)
"[P]rima facie evidence is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence." (Vaca V. & C.L. v. Mansfield (1890) 84 Cal. 560, 566; see also People v. Verdugo (2020) 44 Cal.App.5th 320, 329, review granted Mar. 18, 2020, S260493 (Verdugo).)
Upon the issuance of an order to show cause, the parties have an opportunity waive a hearing and stipulate that the defendant is entitled to have the murder conviction vacated and to resentencing. (§ 1170.95, subds. (c), (d)(2).) If they do not, a hearing is held in which the prosecution has the burden to prove beyond a reasonable doubt that petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof the trial court is required to vacate the prior conviction and resentence the petitioner on the remaining charges. (§ 1170.95, subd. (d)(3).)
Defendant's section 1170.95 petition
In January 2019, defendant filed a petition pursuant to section 1170.95 to vacate his murder conviction. The petition alleged in relevant part that defendant had been convicted of first degree felony murder, and could not now be convicted under the amendments to sections 188 and 189, effective January 1, 2019, because he was not the actual killer, did not, with intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killing in the commission of the murder. The petition also alleged that he was not a major participant in the felony or did not act with reckless indifference to human life during the course of the crime or felony; and the victim was not a peace officer.
After an initial review of the petition, the trial court appointed counsel to represent defendant, and scheduled a nonappearance review of the petition for March 18, 2019. On March 14, however, the trial court issued a memorandum of decision summarily denying defendant's petition. After reviewing the appellate opinion affirming defendant's conviction and sentence, the trial court concluded that defendant was not the actual killer but "was convicted of murder on a theory of being a direct perpetrator and with the intent to kill or a major participant and with reckless indifference to human life." The memorandum also stated that "[t]he jury also found the special circumstance under Penal Code section 190.2(a)(17) to be true."
Defendant filed a timely notice of appeal from the trial court's order.
DISCUSSION
I. The appellate opinion showed a prima facie right to relief
Defendant contends that his section 1170.95 petition stated a prima facie claim for relief and the trial court thus erred in denying it without requiring the prosecution to file a response. We agree that a prima facie entitlement to relief was demonstrated in the opinion filed in Lopez I.
The trial court's initial review involves a determination of the petitioner's "statutory eligibility for resentencing, a concept that is a well-established part of the resentencing process under Propositions 36 and 47. [Citations.]" (Verdugo, supra, 44 Cal.App.5th at p. 329, citing People v. Page (2017) 3 Cal.5th 1175, 1188-1189 [Proposition 47]; Teal v. Superior Court (2014) 60 Cal.4th 595, 600 [Proposition 36].) "The court's role at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner. [Citation.]" (Verdugo, supra, at p. 329.) The trial court examines the complaint, information or indictment filed against the petitioner, the verdict form, the abstract of judgment, and any other information in the record of conviction necessary to the court's determination. (Id. at pp. 329-331; see People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410; People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, review granted Mar. 18, 2020, S260598.) "Based on a threshold review of these documents, the court can dismiss any petition filed by an individual who was not actually convicted of first or second degree murder" (Verdugo, supra, at pp. 330), or who was convicted as a direct aider and abettor of the murder (Lewis, supra, at pp. 1135, 1137-1139), or where the jury found that defendant personally and intentionally used a firearm to commit murder, indicating that he was the actual killer. (Cornelius, supra, at pp. 56-58.) It follows that if such documents do not contradict the otherwise sufficient allegations of the petition, the trial court may not summarily deny the petition.
Appellate opinions are part of the record of conviction. (People v. Cruz (2017) 15 Cal.App.5th 1105, 1110.)
As we observed above, defendant's petition sufficiently alleged the three conditions enumerated in section 1170.95, subdivision (a): (1) an indictment was filed that allowed the prosecution to proceed under a theory of felony murder or the natural and probable consequences doctrine; (2) defendant was convicted of first degree murder; and (3) he could not be convicted of first or second degree murder because of changes to sections 188 or 189. Here, the trial court's memorandum of decision stated that the court had reviewed the appellate opinion, and had relied on the jury's special circumstance finding under section 190.2, subdivision (a)(17), that defendant was an aider and abettor and a major participant in the robbery, and that he acted with reckless indifference to human life.
Defendant contends that the evidence summarized in the appellate opinion did not contradict the allegations of the petition, but to the contrary, the summary shows that the petition is supported by all but one of the factors outlined in Banks, supra, 61 Cal.4th at p. 803, and Clark, supra, 63 Cal.4th at pages 613-614. The summarized facts showed that defendant did not kill the victim, did not directly aid and abet Soto in doing so, and was most likely in the lobby of the business while Soto shot the victim in her office, just as Lopez was entering the back office to rob the three occupants of credit cards and other property. Defendant also points out that no evidence was cited in the opinion regarding defendant's role if any, in planning the robbery or procuring weapons used by Soto and Lopez, showing that defendant was armed during the robbery, or indicating that he was aware of any prior violence committed by his accomplices. In addition, defendant points to Soto's explanation of the shooting as indicating that it was a spontaneous reaction to Carmen screaming, giving defendant no forewarning that he would fire his weapon and no opportunity to either facilitate or prevent the murder. Defendant acknowledges that the final factor suggested in Banks, what he did after Soto shot Carmen, does not weigh in his favor, as he did not investigate or attempt to aid the victim, and instead he fled. Although such behavior after the fact may reveal an indifference to the victim's death, there was no evidence that defendant knew how badly Carmen was wounded; thus that factor alone does not demonstrate that he acted with reckless disregard to the risk to human life posed by the planned robbery. (Cf. In re Taylor (2019) 34 Cal.App.5th 543, 559.)
The trial court did not refer to any of the facts summarized in the opinion or elsewhere in the record of conviction relating to the extent or nature of defendant's participation in the robbery, nor did the court point to any other evidence relating to defendant's subjective state of mind. The court apparently relied exclusively on the special circumstance finding, which preceded the California Supreme Court clarification in Banks and Clark of the two required elements of major participation and reckless indifference to human life. The court's determination that defendant was ineligible for relief as a matter of law stopped short of its role at this stage to draw "all factual inferences in favor of the petitioner. [Citation.]" (Verdugo, supra, 44 Cal.App.5th at p. 329.)
Respondent contends that the trial court did not need to look further than the special circumstance finding because defendant's conviction was affirmed on appeal in Lopez I, and the special circumstance finding was not in dispute in that appeal. Respondent asserts that People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, supports this argument directly. We disagree. In that case, the appellate court held that a claim under section 1170.95 may not be made for the first time on appeal, but must be raised in a petition satisfying the requirements of the statute and filed in the trial court; however, after reviewing the record, including the evidence adduced at trial, the court held that allowing such a first-time review on appeal would be an idle act, because the defendant's appeal did not challenge the sufficiency of the evidence supporting the special circumstance finding, and the evidence was sufficient for the jury to find that the defendant was the actual killer. (See Gutierrez-Salazar, at pp. 415, 419-420.) The court stated, however, that subject to the doctrine of law of the case, "nothing in this opinion should be construed as limiting defendant's right to file a petition in the trial court pursuant to section 1170.95." (Id. at p. 420.) Thus we find no support in that case for respondent's argument that the trial court may look solely to a special circumstance finding which was made in 2003, without regard to the evidence supporting the jury's finding. Indeed, the appellate court left it to the trial court to conduct the appropriate review upon receipt of the defendant's section 1170.95 petition. (Ibid.)
Respondent suggests that S.B. 1437 is inapplicable to anyone convicted of a special circumstance murder, and argues that defendant was first required to challenge the special circumstance finding by way of petition for writ of habeas corpus before seeking section 1170.95 relief. To the extent that respondent is suggesting that principles of res judicata or law of the case establish defendant's ineligibility as a matter of law, we disagree. "[A]n exception to the law of the case doctrine 'has . . . been applied to cases where the controlling rules of law have been altered or clarified . . . . [Citation.]'" (People v. Ramos (1984) 37 Cal.3d 136, 146.) Similarly, res judicata and collateral estoppel do not apply when different legal principles apply retroactively to earlier cases. (People v. Myers (1987) 43 Cal.3d 250, 269., fn. 12.) And where the Legislature has provided a procedure for the retroactive application of amended statutes, it may be inferred that the Legislature has implicitly abrogated collateral estoppel in the case of persons previously convicted. (See People v. Carmony (2002) 99 Cal.App.4th 317, 325.) The Legislature has done so here and has provided the procedure in section 1170.95. (People v. Martinez, supra, 31 Cal.App.5th at p. 722.)
Furthermore, requiring two steps, habeas petition and then a section 1170.95 petition, would be a waste of judicial resources, as the standard for finding true the special circumstance allegation of section 190.2 subdivision (d) is expressly incorporated into section 189, subdivision (e)(3), which now provides that a defendant is liable for felony murder under subdivision (e) only if "[t]he 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." Thus, the standard for finding the underlying crime is the same as the standard for a true finding of the special circumstance under section 190.2 subdivision (d). (See In re Taylor, supra, 34 Cal.App.5th at p. 561.)
Moreover, section 1170.95 avoids the two-step proceeding suggested by respondent, by providing not only a procedure to vacate a conviction of felony murder when the defendant could not be convicted under the amended section 189, but also any allegations attached to the conviction. (§ 1170.95, subd. (d)(3).) Thus, when a hearing is granted, unless the prosecutor stipulates to vacatur and resentencing, the prosecutor must prove beyond a reasonable doubt that defendant could properly be convicted of felony murder under the amended section 189, and "[i]f 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." (§ 1170.95, subds. (c), (d)(2), (d)(3).)
In sum, as defendant satisfied the initial prima facie showing, the court was required to appoint counsel and the prosecutor was required to file a response to the petition. (§ 1170.95, subd. (c).) Indeed, as the facts summarized in Lopez I also amount to a prima facie showing that defendant may be entitled to relief under the standard clarified in Banks and Clark, as discussed above, the court must issue an order to show cause, and within 60 days, hold a hearing. (§ 1170.95, subd. (d)(1); see also People v. Torres (2020) 46 Cal.App.5th 1168.) Unless the prosecution ultimately meets its burden to prove beyond a reasonable doubt that defendant directly aided and abetted the murder with the intent to kill Carmen, or that he was a major participant in the underlying felony and acted with reckless indifference to human life, defendant's conviction of felony murder cannot stand under the amended section 189, and the true finding of the special circumstance allegation will fall with it. (§ 1170.95, subd. (d)(3).)
II. Habeas is premature
"'Habeas corpus is an "extraordinary remedy." [Citation.]' [Citation.] As a general rule, it 'may not be invoked where the accused has such a remedy under the orderly provisions of a statute designed to rule the specific case upon which he relies for' relief [citation], at least when the remedy at law is 'well suited, in ordinary circumstances, to enforc[e]' or vindicate the right being asserted [citation]. [Citation.]" (In re Kirchner (2017) 2 Cal.5th 1040, 1052.) "'[O]rdinarily, the aggrieved party must exhaust those remedies'" before resorting to habeas corpus. (Ibid.)
Defendant's petition for writ of habeas corpus seeks only to have his sentence and the special circumstance finding vacated. If upon remand, the prosecution stipulates to vacatur and resentencing, or if the prosecution fails to prove beyond a reasonable doubt that defendant was a major participant in the underlying felony and acted with reckless indifference to human life under the clarified standard, the special circumstance finding will be vacated along with the murder conviction and sentence. (See § 1170.95, subds. (c), (d)(2), (d)(3).) Defendant thus "has a plain, speedy, and adequate remedy at law that makes resort to habeas corpus unnecessary, at least in the first instance. [Citations.]" (In re Cook (2019) 7 Cal.5th 439, 452.)
We are mindful that section 1170.95 is not intended to "diminish or abrogate any rights or remedies otherwise available to the petitioner." (§ 1170.95, subd. (f).) Thus, we deny defendant's petition for writ of habeas corpus without prejudice to filing a future petition if defendant's remedy under the statute becomes inadequate.
DISPOSITION
The order of the superior court summarily denying defendant's section 1170.95 petition is reversed. The petition for writ of habeas corpus is denied without prejudice. The matter is remanded for further review of defendant's section 1170.95 petition.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, P. J.
LUI /s/_________, J.
ASHMANN-GERST