California Court of Appeal Oct 26, 2020 No. E072961Published
Filed 10/23/20; See concurring opinion CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION
THE PEOPLE,
Plaintiff and Respondent, E072961
v. (Super.Ct.No. RIF74986)
HENRY ALEXANDER JONES, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G.
McGinnis and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
1
Henry Jones appeals from the denial of his petition to vacate his murder
conviction under Penal Code section 1170.95, the resentencing provision of Senate Bill 1 No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (SB 1437). In 2000, Jones was
convicted of attempted murder and first degree felony murder, and the jury also found
true the robbery-murder special circumstance, which 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).) The trial court
1 Unlabeled statutory citations refer to the Penal Code.
2
[concluding the special circumstance finding renders a petitioner ineligible for relief as a
matter of law], with People v. Torres (2020) 46 Cal.App.5th 1168, review granted June
24, 2020, S262011 (Torres), People v. Smith (2020) 49 Cal.App.5th 85, review granted
July 22, 2020, S262835 (Smith), and People v. York (2020) 54 Cal.App.5th 250 (York)
[reaching the opposite conclusion].) As we will explain, we agree with the Gomez/Galvan
line of decisions and hold that a petitioner with a pre-Banks/Clark finding is ineligible for 2 relief under section 1170.95 as a matter of law. We therefore affirm.
I
FACTS
The underlying facts of Jones’s murder conviction are not relevant to our analysis,
so we recount them only briefly, taking from our unpublished opinion in his direct appeal
People v. Bishop et al. (June 27, 2001, E027001) (Bishop). (See People v. Lewis (2020)
43 Cal.App.5th 1128, 1134, 1138, review granted Mar. 18, 2020, S260598 [court may 3 review record of conviction in assessing sufficiency of a section 1170.95 petition].) In
1996, Jones and three other men committed a home invasion robbery during which they
shot one resident three times and killed the other. Before trial, Jones confessed to state
2 By a separate order concurrently filed in case number E072992, we have denied Jones’s pro se petition for habeas corpus challenging the denial of his section 1170.95 petition.
3Our Supreme Court recently granted review of People v. Lewis, supra, 43 Cal.App.5th 1128 and will resolve, among other issues, whether a superior court may review the record of conviction when determining whether a section 1170.95 petitioner has made a prima facie showing of eligibility for relief.
3
detectives that he had been involved in the robbery and identified the three other men
who had participated. (Bishop, supra, at pp. 11-17.) He said he had been with the three
men the day before the incident and the group planned to rob the victims. On the way to
the victims’ residence, the group had stopped by a field to distribute firearms, and Jones
had taken a shotgun. Jones offered to show the detectives where they hid their guns after
the robbery. (Id. at p. 12.) At trial, the prosecution presented evidence Jones was armed
during the robbery but wasn’t one of the shooters.
The jury convicted Jones of attempted murder (§§ 664/187), first degree felony
murder (§ 187) with the robbery-murder special circumstance (§ 190.2, subds. (a)(17)(A)
& (d)), and found true the allegation he had personally used a firearm in committing both
crimes (§ 12022.5, subd. (a)). The trial court sentenced him to life imprisonment without
the possibility of parole for the murder and to life with the possibility of parole for the
attempted murder. (Bishop, supra, at pp. 2-3.) Jones then appealed his conviction but
raised no claims regarding the sufficiency of the evidence presented against him. We
affirmed his conviction in 2001. (Bishop, supra, at p. 1.)
After Banks and Clark were decided in 2015 and 2016, respectively, Jones did not
file a petition for writ of habeas corpus challenging the sufficiency of the evidence to
support his special circumstance finding. However, in early 2019, shortly after SB 1437
went into effect, he filed a section 1170.95 petition to vacate his murder conviction. The
People filed an opposition, arguing SB 1437 is unconstitutional and, in any event, Jones
was not entitled to relief because in finding the special circumstance true, the jury had
4
found he was a major participant in the robbery who acted with reckless indifference to
human life.
The court held a status conference on the petition. The prosecutor maintained that
the special circumstance finding was reason enough to deny the petition. Jones’s original
trial attorney appeared on his behalf and asked for a four-month continuance. The court
reviewed its files and verified that the instruction given at Jones’s trial on the special
circumstance allegation had required the jury to find he was a “major participant” in the
robbery who acted with “reckless indifference to human life.” The court didn’t rule on
the continuance request but concluded the special circumstance rendered Jones ineligible
for relief as a matter of law and denied the petition.
II
ANALYSIS
Jones argues the trial court erred by not granting the request for a continuance to
give his counsel an opportunity to file a reply brief. If allowed to file such a brief, he
argues, he would be able to demonstrate a prima facie case for relief under section
1170.95. Specifically, he claims that his special circumstance finding is invalid under
Banks and Clark, which he describes as “changes in the law since his conviction and
sentencing.” Citing People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279,
1304, the People argue that the procedure established in section 1170.95 “is not a
‘plenary proceeding’ at which the defendant can reopen matters which have already been
adjudicated”—such as prior jury findings.
5
We agree with the People and in doing so agree with the Gomez, Galvan, and
Allison line of decisions. As we will explain, Banks and Clark did not change the law,
and Jones’s special circumstance finding renders him ineligible for relief under section
1170.95 as a matter of law.
A. SB 1437 and Section 1170.95
SB 1437 took effect on January 1, 2019. Among other things, the legislation
amended section 189 to restrict the circumstances under which a person can be liable for
felony murder. Under the new section 189, a person who was not the actual killer can no
longer be convicted of felony murder merely for participating in an enumerated felony
that results in a death. Now, a person so accused must have aided and abetted the target
crime of murder or acted as a “major participant in the underlying felony” and with
“reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§
189, subd. (e).)
SB 1437 also added section 1170.95 to the Penal Code. That provision creates a
procedure for offenders previously convicted of felony murder to obtain the benefits of
the amendment to section 189 retroactively. These individuals may petition for relief in
the court where they were convicted. If a petitioner “makes a prima facie showing that
[they are] entitled to relief,” the trial court must issue an order to show cause and hold “a
hearing to determine whether to vacate the murder conviction.” (§ 1170.95, subds. (c) &
(d)(1).) At that hearing, the parties “may rely on the record of conviction or offer new or
additional evidence.” (§ 1170.95, subd. (d)(3).) Significantly, it is the prosecution that
6
bears the ultimate burden of proof, not the petitioner. The statute says the People must
“prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.”
(§ 1170.95, subd. (d)(3).) “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
As relevant here, to demonstrate entitlement to an evidentiary hearing, a petitioner
must make a prima facie showing that they could not be convicted of first or second
degree murder “because of changes to Section 188 or 189 made effective January 1,
2019.”4 (§ 1170.95, subd. (a)(3).)
B. Jones Cannot Challenge His Special Circumstance Finding Under Section 1170.95
A defendant with a special circumstance finding under section 190.2, subdivision
(d) is not eligible for relief under section 1170.95 as a matter of law. This is because a
jury has already found them to have satisfied the new definition of felony murder under
amended section 189. Although they were not the actual killer, a jury found them to have
been a major participant in the underlying felony who acted with reckless indifference to
human life. (E.g., People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419 [because
“[t]he language of the special circumstance tracks the language of Senate Bill 1437 and
4 In addition to altering the definition of felony murder, SB 1437 amended section 188 to provide that malice can no longer be imputed, thereby eliminating the natural and probable consequences theory of murder liability. Because this case does not involve that theory, we limit our discussion of SB 1437 and section 1170.95 to felony murder.
7
the new felony-murder statutes,” a jury’s true finding on section 190.2, subd. (d) renders
a section 1170.95 petitioner ineligible for relief].)
A petitioner with a pre-Banks/Clark finding faces the same bar to relief under
section 1170.95 as a petitioner with a post-Banks/Clark finding. This is because Banks
and Clark did not create a new rule of law, but rather “clarified” the already-existing
meaning of the phrases “major participant” and “reckless indifference to human life” for
purposes of special circumstance allegations under section 190.2, subdivision (d). (In re
describes the role of prior factual findings in analysis of a petition under section 1170.95.
According to Verdugo, relief under section 1170.95 is barred if a prior finding shows the
9
petitioner ‘was convicted on a ground that remains valid notwithstanding Senate Bill No.
1437’s amendments to sections 188 and 189.’ (Verdugo, supra, 44 Cal.App.5th at p.
330.) Verdugo’s interpretation is faithful to the language of subdivision (a)(3) of section
1170.95: If the prior finding shows the petitioner meets the requirements for murder
liability under amended sections 188 and 189, then it is not true that the petitioner could
not be convicted of murder because of the changes to sections 188 and 189, and the
petition must be denied.” (Allison, supra, at pp. [16]-17.)
Subdivision (d) of section 1170.95, which provides for a hearing at which the
parties can introduce new evidence and the prosecution bears the burden of proof beyond
a reasonable doubt, does not suggest a contrary conclusion. Senate Bill 1437’s changes
to sections 188 and 189 created new requirements for murder liability—there are now
facts that are necessary for murder liability that previously were not necessary. As a
result, there may be cases in which the dispositive factual issues have not previously been
resolved. (Smith, Torres, and York assume that all pre-Banks/Clark special circumstances
cases fall into this category; as previously explained, that is incorrect.) For example, a
defendant may have been convicted of murder on a natural and probable consequences
theory with no express finding of malice, or on a felony murder theory with no express
finding that the defendant was the actual killer or acted with intent to kill or was a major
participant in the underlying felony who acted with reckless indifference to human life.
In those situations (and assuming all statutory requirements have been met), subdivision
(d) of section 1170.95 provides for a hearing to address any newly necessary facts that
10
have not previously been found. But nothing in the statute suggests that the purpose of
subdivision (d) of section 1170.95 is to open up factual issues that have previously been
determined. Facts that have already been found are a given. Again, as Allison explained,
“[t]he purpose of section 1170.95 is to give defendants the benefit of amended sections
188 and 189” against the backdrop of any facts that have already been found, not to give
defendants a “do-over on factual disputes that have already been resolved.” (Allison,
supra, 2020 Cal.App. Lexis at p. [17].)
For all of the foregoing reasons, I agree with the majority opinion that Galvan and
Gomez are correct: Section 1170.95 is not a proper procedural vehicle for challenging a
murder conviction by attacking a prior factual finding.
I further agree with the majority opinion that one possible source of York’s
missteps is its failure to attend carefully to the terms of the statute. The second sentence
of the opinion states that section 1170.95 and Senate Bill 1437 “provide for vacatur of a
defendant’s murder conviction and resentencing if the defendant was convicted of felony
murder and the defendant (1) was not the actual killer, (2) did not act with the intent to
kill, and (3) was not a major participant in the underlying felony who acted with reckless
indifference to human life.” (York, supra, 54 Cal.App.5th at pp. 253-254.) Section
1170.95 does not so provide. The statute provides for vacatur of the murder conviction
only if the petitioner could not be convicted of murder because of Senate Bill 1437’s
changes to sections 188 and 189. Thus, where York said “was not the actual killer”
11
(York, at p. 253), it should have said “could not be found to have been the actual killer,”
and so forth.
York relied on Torres and Smith, both of which are problematic for similar
reasons. Both Torres and Smith focused on whether the jury’s pre-Banks/Clark special
circumstance finding is preclusive. (Torres, supra, 46 Cal.App.5th at pp. 1178-1180;
Smith, supra, 49 Cal.App.5th at pp. 93-94.) But neither case addressed the question of
whether the petitioner made any showing that he met the requirements of section
1170.95, namely, that he could not be convicted of murder because of Senate Bill 1437’s
changes to sections 188 and 189.
For example, Torres concluded that reversal was required because there was “a
possibility that [the petitioner] was punished for conduct that is not prohibited [under
current law].” (Torres, supra, 46 Cal.App.5th at p. 1180, italics added.) But section
1170.95 expressly requires far more than a mere possibility that the petitioner is innocent
under current law or might be acquitted by a jury under current law. It requires that the
petitioner could not be convicted—that is, there is no possibility of conviction—under
current law.
Torres did not analyze whether the petitioner made a prima facie showing in the
trial court that he could not be convicted under current law. Nor did Torres analyze
whether the petitioner demonstrated on appeal that it was reasonably probable that he
would be able to make such a showing on remand. If the petitioner did not do so, then he
failed to show prejudice, so reversal was not warranted. (People v. Watson (1956) 46
12
Cal.2d 818, 836-837.) Indeed, Torres did not even answer the question whether it was
possible that the petitioner could make such a showing on remand.
Smith is similar. Smith reversed because it was “conceivable that [the petitioner]
may be able to provide evidence not presented at trial that would demonstrate either that
he was not a major participant in the robbery or did not act with reckless indifference to
human life.” (Smith, supra, 49 Cal.App.5th at p. 95, italics added.) Again, the analysis
applies the wrong standard, both for the trial court’s determination of eligibility or
entitlement to relief and for the appellate court’s determination of prejudice. The
petitioner’s burden in the trial court is not merely to show that he was not a major
participant who acted with reckless indifference but rather to show that he could not be
found to be a major participant who acted with reckless indifference (and hence could not
be convicted of murder). And in order to find any error by the trial court prejudicial, the
appellate court must find not merely that it is conceivable that the appellant could have
obtained a better result absent the error but rather that it is reasonably probable that the
appellant would obtain a better result. Smith contains no analysis applying the proper
standards. That is, it did not analyze whether the appellant showed on appeal that it was
reasonably probable that on remand he would be able to show that he could not be
convicted of murder because of Senate Bill 1437’s changes to section 188 and 189.
There is one additional aspect of York’s criticism of Galvan that is puzzling. The
majority opinion in York asserts that Galvan mischaracterizes prior case law as holding
that “a defendant may challenge a felony murder special circumstance by means of a
13
petition under section 1170.95.” (Galvan, supra, 52 Cal.App.5th at p. 1141; see York,
supra, 54 Cal.App.5th at p. 260.) York explains that the prior cases hold no such thing
and that such a holding would be erroneous, because “section 1170.95 permits a
petitioner to challenge a murder conviction,” not a special circumstance finding (although
the statute provides that if the challenge to the conviction succeeds, then any associated
enhancement and special circumstance findings must be vacated as well). (York, at
p. 260.) The York concurrence emphasizes the same point, expressing agreement with
the majority’s “astute observation that a section 1170.95 petition is not a challenge to a
special circumstance finding but rather a challenge to the associated murder conviction
that can obviously result in vacatur of a special circumstance finding as a collateral
consequence.” (York, at pp. 263-264 (conc. opn. of Baker, J.).)
It is not clear what point the York opinions are making here, or what error in
Galvan they purport to identify. On the one hand, Galvan expressly agreed with the
proposition that section 1170.95 is a mechanism for challenging a murder conviction.
(Galvan, supra, 52 Cal.App.5th at p. 1139 [section 1170.95 “established a procedure for
vacating murder convictions”].) Nothing in Galvan suggests otherwise or suggests that
the Galvan court thought that prior case law was to the contrary. On the other hand, the
petitioners in Galvan, York, Torres, and Smith all sought under section 1170.95 to
challenge their murder convictions by attacking their prior special circumstance findings.
York expressly recognized this: The petitioner’s challenge to the murder conviction was
“based on the contention that [the petitioner] was not a major participant in the
14
underlying felony who acted with reckless indifference to human life” despite a prior jury
finding to the contrary. (York, supra, 54 Cal.App.5th at p. 261.) Under Smith and Torres
(and York), section 1170.95 is a proper procedural vehicle for such a challenge to the
conviction. Under Galvan and Gomez, it is not.
Thus, it appears to be universally agreed that section 1170.95 is for challenging
murder convictions and that, in the relevant cases, the petitioners are challenging their
murder convictions via section 1170.95 by attacking their prior special circumstance
findings. York does not explain why either of those uncontroversial observations is of
any consequence for the dispute between Smith, Torres, and York, on the one hand, and
Gomez and Galvan, on the other.
III. Section 1170.95 and Due Process
Torres suggested that failing to reverse the denial of the appellant’s petition would
implicate due process: Because the pre-Banks/Clark jury’s special circumstance finding
did not actually “resolve[] key disputed facts,” it was possible that the petitioner “was
punished for conduct that is not prohibited by section 190.2 as currently understood, in
violation of [the petitioner’s] constitutional right to due process.” (Torres, supra, 46
Cal.App.5th at p. 1180.) Torres cites Miller as support for its reasoning and then adds
that “[i]t would be unjust to permit a court to deny a petitioner relief on the basis of facts
that the jury did not necessarily find true, and which may not be sufficiently supported by
the record.” (Torres, at p. 1180.)
15
The court’s reasoning is based on an incorrect understanding of the effect of Banks
and Clark, as previously discussed—a pre-Banks/Clark jury did resolve key disputed
facts and did necessarily find true the same facts that a post-Banks/Clark jury necessarily
found true. But in addition, Torres misapplies Miller’s due process analysis.
In Miller, the court granted a habeas petition seeking to vacate a pre-Banks/Clark
special circumstance finding on the ground that it was not supported by substantial
evidence. (Miller, supra, 14 Cal.App.5th at pp. 974-977.) The Attorney General argued,
however, that the petitioner’s substantial evidence challenge was barred because it had
already been rejected on a pre-Banks/Clark direct appeal. (Id. at p. 977.) The court
disagreed, because (1) “[f]or purposes of legal analysis, Banks and Clark did not create
new law; they simply stated what section 190.2, subdivision (d) has always meant,” so
Banks and Clark apply to pre-Banks/Clark special circumstance findings, and (2) the
rejection of the defendant’s substantial evidence argument on direct appeal did not bar
consideration of the sufficiency of the evidence on the post-Banks/Clark habeas petition,
because the direct appeal preceded Banks and Clark and hence was not informed by the
Supreme Court’s clarification of section 190.2’s meaning. (Miller, at pp. 977-979.)
I agree with all of that reasoning from Miller, but Torres misapplied it. Miller
concluded that the special circumstance finding was not supported by substantial
evidence under Banks and Clark, so it would violate due process to punish the defendant
on the basis of that finding. But in Torres, the court did not conclude that the special
circumstance finding was not supported by substantial evidence under Banks and Clark.
16
It did not even determine that it was possible or conceivable that the finding was not
supported by substantial evidence under Banks and Clark. Consequently, the analysis in
Torres fails to show even the possibility of a due process violation under Miller.
For all of the foregoing reasons, I agree with the majority that we should follow
Gomez and Galvan, not Smith, Torres, and York. There is no basis to disregard pre-
Banks/Clark special circumstance findings, which should have the same preclusive effect
as post-Banks/Clark findings (subject to post-Banks/Clark substantial evidence review on
habeas, as in Miller). Section 1170.95 is not a proper procedural vehicle for challenging
a murder conviction by attacking a prior factual finding, because section 1170.95
provides relief only to petitioners who could not be convicted of murder because of
Senate Bill 1437’s changes to sections 188 and 189. And denying a section 1170.95
petition on the basis of a pre-Banks/Clark special circumstance finding does not implicate
due process. If the petitioner believes the finding is not supported by substantial
evidence under Banks and Clark, then the petitioner’s remedy for that error is habeas
corpus, not section 1170.95. MENETREZ J.
17
AI Brief
AI-generated · verify before citing
Holding. A defendant with a pre-Banks/Clark robbery-murder special circumstance finding is ineligible for relief under Penal Code section 1170.95 as a matter of law. The court held that such findings are not subject to relitigation under section 1170.95 because Banks and Clark clarified, rather than changed, the law regarding major participation and reckless indifference.
Issues
Does a pre-Banks/Clark special circumstance finding render a petitioner ineligible for section 1170.95 relief as a matter of law?
Did the trial court err by denying the section 1170.95 petition without granting a continuance for counsel to file a reply brief?
Disposition. affirmed
Quotations verified verbatim against the opinion
“Banks and Clark did not create a new rule of law, but rather “clarified” the already-existing meaning of the phrases “major participant” and “reckless indifference to human life””
“nothing in section 1170.95 indicates that the provision can be used to challenge any prior jury finding.”