People v. Olloqui CA2/5

Filed 3/16/22 P. v. Olloqui CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B310874

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA314454-04) v.

OSCAR OLLOQUI,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Mark Hanasono. Reversed and remanded. John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, David A. Voet, Deputy Attorney General, for Plaintiff and Respondent. ______________________________________

Defendant and appellant Oscar Olloqui appeals the trial court’s order denying his petition made pursuant to Penal Code section 1170.95,1 which permits a person convicted under a felony murder theory of liability to petition to have his murder conviction vacated and be resentenced if the petitioner “is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) The issues on appeal are (1) whether the jury’s felony- murder special circumstance finding (§ 190.2, subd. (a)(17)), made before our Supreme Court decided People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) precludes Olloqui from making a prima facie showing of eligibility under section 1170.95, or alternatively, (2) whether this court may independently review the record to determine whether substantial evidence supports the jury’s special circumstance finding. We agree with Olloqui that the special circumstance finding does not render him ineligible for resentencing, and that this court may not independently review the special circumstance finding to determine his eligibility for relief under section 1170.95. In Banks and Clark, our Supreme Court construed the meanings of the terms “major participant” and “reckless indifference to human life” more narrowly than courts had previously, and the jury’s special circumstance finding here was not made in accordance with this narrow construction. Further,