People v. Davalos CA2/2

Filed 11/4/22 P. v. Davalos CA2/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B304384

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA110432) v. OPINION ON REMAND JAIME DAVALOS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Leslie A. Swain, Judge. Reversed and remanded with directions. Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, and Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent. _________________________________

Jaime Davalos appealed the summary denial of his petition for resentencing under Penal Code 1 section 1172.6.2 In an unpublished decision filed December 18, 2020, we affirmed, holding that the superior court may summarily deny a section 1172.6 petition at the initial prima facie review on the ground that a defendant convicted of murder with a felony-murder special-circumstance finding (§ 190.2, subd. (a)(17)) is not, as a matter of law, eligible for resentencing under section 1172.6. (People v. Davalos (Dec. 18, 2020, B304384) (Davalos).) We further held that a section 1172.6 petition is not a vehicle for challenging, under our Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, a murder conviction by attacking the jury’s prior factual finding that the defendant was a major participant who acted with reckless indifference to human life. (Davalos, supra, B304384.) The California Supreme Court granted review and deferred further action pending consideration and disposition of related issues in People v. Strong, S266606. On October 19, 2022, the California Supreme Court transferred the case back to this court with directions to vacate our prior decision and reconsider in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). DISCUSSION The Attorney General acknowledges that respondent’s previous arguments in Davalos were the same arguments