I. FACTUAL AND PROCEDURAL BACKGROUND2

On the evening of April 12, 1995, defendant and his codefendant, William Austin,

went to a home in which a mother and her 10-year-old daughter lived. Also present were

a friend (the victim) and the mother’s seven-year-old niece. Austin had a handgun, which

he pointed at the mother. Defendant told the mother to go sit in the family room. The

mother asked what would happen if she refused, and defendant said he would “shoot

her.” (People v. Trout, supra, E025443.)

Austin ordered all four into the living room and directed the victim “to lie face

down on the floor and tied his ankles and wrists.” Austin then called for defendant.

Austin told defendant he did not want to touch the mother or the children. Defendant tied

the mother’s arms behind her. She complained the ties were too tight; defendant cut the

ties with a large knife he retrieved from his back pocket and retied them. “One of the

intruders, probably defendant, demanded drugs and money.” Both defendant and Austin

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 On our own motion, we take judicial notice of the record in defendant’s appeal from the original judgment, on which defendant below relied, and both parties on appeal rely on for their recitation of the facts. (People v. Trout (Aug. 8, 2000, E025443) [nonpub. opn.]; see Evid. Code, § 459.)

2 searched the house, where mother’s incarcerated common-law husband was apparently

known to keep large sums of money. (People v. Trout, supra, E025443.)

Austin told the mother and girls to go into the kitchen, where defendant hollered,

“What are you doing here?” At that point, Austin said, about the victim, “He’s getting

away.” Austin ran after him. Defendant told the mother and girls to go back into the

living room. He pushed the mother and girls out of the way and followed Austin.

(People v. Trout, supra, E025443.)

The mother and girls heard a gunshot. They heard the victim holler as if he was in

pain. “A few seconds later, defendant and Austin came running out of the family room,

into the living room. Austin retrieved the compact discs and a laptop computer he had

piled on a table.” The mother and her daughter heard the back door shut and a car drive

off. The victim died of a gunshot wound to the chest. (People v. Trout, supra, E025443.)

“Defendant was arrested two days later. While in jail, he told a custody officer,

‘You know I’m not Jeffrey Dahmer, the guy that I shot wasn’t cut up into pieces and all

that.’ Later, defendant told another officer, ‘Hey, I know I was there and that I could

have done something about it. I just watched him do it, and I didn’t do anything to stop

him.’ Defendant also said, ‘I know that because of that, I’m as guilty as my partner.’”

(People v. Trout, supra, E025443.)

On October 13, 1995, the People charged defendant by information with murder

(§ 187, count I), robbery (§ 211, count II), and burglary (§ 459, count III). The People

additionally alleged that in the commission of all the offenses, a principal was armed with

3 a firearm (§ 12022, subd. (a)(1)); that in his commission of the count I offense, defendant

personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)); that the murder

was committed by defendant while engaged in the commission of a robbery (§ 190.2,

subd. (a)(17)(i)); and that the murder was committed by defendant while engaged in a

burglary (§ 190.2, subd. (a)(17)(vii)). The People further alleged defendant suffered from

two prior strike convictions. (§§ 667, subds. (c), (e), 1170.12, subd. (c).)

A jury convicted defendant on all counts and found true all enhancement

allegations except the personal use of a firearm enhancement attached to count II.3 The

trial court sentenced defendant to an aggregate term of incarceration of one year, plus 25

years to life, plus life without the possibility of parole.

Defendant appealed the judgment, challenging the sufficiency of the evidence to

support findings that he committed first degree murder while engaged in robbery and

burglary. (People v. Trout, supra, E025443.) “Defense counsel conceded at trial

defendant was a major participant in the robbery and burglary.” (Ibid.) This court

therefore noted that the only issue on appeal was “whether defendant acted with reckless

indifference to human life.” (Ibid.) This court affirmed the judgment, holding that under

a totality of the circumstances, sufficient evidence supported the conclusion that

3 It is unclear from the record whether the jury found the prior strike allegations true or if defendant admitted the allegations. In this court’s opinion on appeal from the judgment, the court noted, “[t]he jury found defendant did not personally use a firearm in the commission of the murder, and the People concede defendant was not the actual killer and the evidence did not establish he had the intent to kill.” (People v. Trout, supra,

E025443.)

4 defendant acted with reckless indifference to human life. (Ibid.) The factors leading to

this conclusion included: (1) defendant knew Austin was armed with a handgun;

(2) defendant himself carried a large knife; (3) defendant threatened to shoot the mother

if she did not comply; (4) the jury could reasonably conclude defendant proceeded with

the robbery despite an awareness that Austin was likely to use a gun if a struggle ensued;

and (5) defendant told the police he shot the victim, and he did not assist the victim.

(Ibid.)

On July 10, 2019, defendant filed a petition for resentencing pursuant to

section 1170.95 in the trial court. On August 1, 2019, the People filed a response in

which they argued Senate Bill No. 1437 (2017-2018 Reg. Sess.) was unconstitutional.

On August 2, 2019, the court stayed the matter for 90 days pending the outcome of two

cases challenging the constitutionality of Senate Bill No. 1437. (See People v.

Lamoureux (2020) 57 Cal.App.5th 136; People v. Salcido (July 30, 2020, E072629)

[nonpub. opn.].)

On August 28, 2019, defendant filed a second petition for resentencing pursuant to

section 1170.95 in the trial court;4 on September 4, 2019, defendant’s appointed counsel

filed a reply; and on November 8, 2019, pursuant to the parties’ stipulation, the court

continued the stay.

Both of defendant’s first two petitions were form petitions in which defendant 4 failed to check the box indicating, “I was not a major participant in the felony or I did not act with reckless indifference to human life during the course of the crime or felony.” Defense counsel remedied the problems by obtaining the court’s leave to file a third petition in which that box was checked.

5 On January 28, 2020, defense counsel filed a supplemental reply noting that he

had “been informally notified by the District Attorney that he intends to object to

[defendant’s] petition[s] on the basis a special circumstance was found true.” Recounting

the facts and procedural history of the case using this court’s opinion from defendant’s

appeal of his conviction, which he attached to the reply, defense counsel noted that the

jury convicted defendant of first degree murder and found true robbery and burglary

special murder circumstances. Defense counsel argued that because the jury’s

convictions and findings predated the California Supreme Court’s clarification in People

v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522

(Clark) of what it means to be a “major participant” and to act with “reckless indifference

to human life” in the commission of a murder, he had set forth a prima facie case for

relief under section 1170.95.

At the hearing on the petition on January 31, 2020, defense counsel informed the

court that defendant “had missed checking some of the boxes, so [he wanted] to file an

amended petition for resentencing just so that is not an issue that we have to deal with.”

After discussion between the parties, defense counsel formally asked “for the amended

petition for resentencing to be filed.” The People had no objection, and the court ordered

the amended petition filed.

The People moved to dismiss the petition(s) based on what they argued were the

express findings by the jury that defendant had been a major participant acting with

reckless indifference or intent to kill. Defense counsel argued that because the special

6 circumstance findings predated Banks and Clark, defendant was entitled to an evidentiary

hearing on whether the evidence supported a conclusion that defendant was a major

participant acting with reckless disregard for human life as those concepts had been

clarified.

The trial court observed that “on the factual issue to be litigated, . . . I believe that

the law of the case ties my hands here. And that is the opinion that I’m giving here.”

“This petition is denied. The Court believes that the Court of Appeal decision finding

this felony murder special adequate is binding.”

II. DISCUSSION

Defendant contends the trial court erred in summarily denying his petition based

on the 1999 jury findings that defendant acted with reckless disregard for human life

given that the later decisions in Banks and Clark “provide additional insight into” the

meaning and factors relevant to such determinations. Therefore, defendant argues, there

was a “stark change in the law post-Banks and Clark” such that “earlier jury findings

cannot be relied upon to conclusively establish that [defendant] acted with reckless

disregard when he committed the underlying crime.” We disagree.

A. Legal Background.

“In 2018 the Legislature enacted Senate Bill No. 1437 . . . , which abolished the

natural and probable consequences doctrine . . . . Under section 189, subdivision (e), as

amended by Senate Bill No. 1437, a defendant is guilty of felony murder only if he:

actually killed the victim; directly aided and abetted or solicited the killing, or otherwise

7 acted with the intent to kill; or ‘was a major participant in the underlying felony and acted

with reckless indifference to human life.’ [Citations.] The legislation also enacted section

1170.95 [(Stats. 2018, ch. 1015, § 4)], which established a procedure for vacating murder

convictions for defendants who would no longer be guilty of murder because of the new

law and resentencing those who were so convicted.” (People v. Murillo (2020)

54 Cal.App.5th 160, 166 (Murillo), review granted Nov. 18, 2020, S264978.)

“Section 1170.95 allows a defendant serving a sentence for felony murder who

would not be guilty of murder because of the new law to petition for resentencing. The

statute requires a defendant to submit a petition affirming that he meets three criteria of

eligibility: (1) He was charged with murder in a manner ‘that allowed the prosecution to

proceed under a theory of felony murder or murder under the natural and probable

consequences doctrine’ [citation]; (2) He ‘was convicted of’ or pleaded guilty to ‘first

degree murder or second degree murder’ [citation]; and (3) He ‘could not be convicted of

first or second degree murder because of changes to Section[s] 188 or 189 made

effective’ as a part of Senate Bill No. 1437 [citation]. As described above, those changes

eliminated the natural and probable consequences doctrine as a basis for murder liability,

and added a requirement for felony murder that a defendant must have been at least a

major participant in the underlying felony and have acted with reckless indifference to

human life.” (Murillo, supra, 54 Cal.App.5th at p. 166.)

Section 1170.95, subdivision (b), states that the petition must include: a

declaration from the petitioner that he or she is eligible for relief under the statute, the

8 trial court’s case number and year of conviction, and a statement as to whether the

petitioner requests appointment of counsel. (§ 1170.95, subd. (b)(1).) If any of the

required information is missing and cannot “readily [be] ascertained by the court, the

court may deny the petition without prejudice to the filing of another petition.” (Id., at

subd. (b)(2).)

Section 1170.95, subdivision (c), sets forth the trial court’s responsibilities once a

complete petition has been filed: “The court shall review the petition and determine if

the petitioner has made a prima facie showing that the petitioner falls within the

provisions of this section. If the petitioner has requested counsel, the court shall appoint

counsel to represent the petitioner. The prosecutor shall file and serve a response within

60 days of service of the petition and the petitioner may file and serve a reply within

30 days after the prosecutor response is served. . . . 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.”

If the court issues an order to show cause, it must hold a hearing to determine whether to

vacate the murder conviction. (Id., at subd. (d).) At that hearing, the prosecution has the

burden of proving beyond a reasonable doubt that the petitioner is ineligible for

resentencing. (Id., at subd. (d)(3).) The prosecutor and petitioner “may rely on the

record of conviction or offer new or additional evidence to meet their respective

burdens.” (Ibid.)

In short, a section 1170.95 petitioner must first make a prima facie case for relief

and, if they are able to do so, the trial court must issue an order to show cause and hold a

9 hearing to determine whether to vacate the murder conviction and recall the sentence.

(See, e.g., People v. Verdugo (2020) 44 Cal.App.5th 320, 328, review granted Mar. 18,

2020, S260493.) “‘A prima facie showing is one that is sufficient to support the position

of the party in question.’” (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, review

granted Mar. 18, 2020, S260598, quoting Aguilar v. Atlantic Richfield Co. (2001)

25 Cal.4th 826, 851.)

In this case, the trial court denied defendant’s petition at the first stage of prima

facie review under section 1170.95, subdivision (c). “A denial at that stage is appropriate

only if the record of conviction demonstrates that ‘the petitioner is ineligible for relief as

a matter of law.’ [Citations.] This is a purely legal conclusion, which we review

de novo.” (Murillo, supra, 54 Cal.App.5th at p. 167; accord, People v. Galvan (2020)

52 Cal.App.5th 1134, 1137, 1142 (Galvan), review granted Oct. 14, 2020, S264284.)

“To be eligible for resentencing under section 1170.95, [a defendant] must show

that he ‘could not be convicted of first or second degree murder because of changes to

Section[s] 188 or 189 made effective’ as a part of Senate Bill No. 1437. [Citation.]

Under the newly amended version of section 189, a defendant can be convicted of felony

murder only if he was the actual killer; acted with the intent to kill in aiding, abetting,

counseling, commanding, inducing, soliciting, requesting, or assisting in 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.’” (Murillo,

supra, 54 Cal.App.5th at p. 167.)

10 A jury’s special circumstance finding shows as a matter of law that the defendant

could still be convicted of murder under the new definition; thus, preventing the

defendant from making a prima facie case that he is eligible for resentencing under

section 1170.95. (Murillo, supra, 54 Cal.App.5th at p. 167; Galvan, supra,

52 Cal.App.5th at p. 1141 [“Because a defendant with a felony-murder special

circumstance could still be convicted of murder, he is ineligible as a matter of law to have

his murder conviction vacated.”]; People v. Gomez (2020) 52 Cal.App.5th 1, 15 (Gomez),

review granted Oct. 14, 2020, S264033; accord, People v. Jones (2020) 56 Cal.App.5th

474, 482 (Jones), review granted Jan. 27, 2021, S265854 [“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.”]; contra, People v. Torres (2020) 46 Cal.App.5th

1168, 1173 (Torres), review granted June 24, 2020, S262011 [trial court’s exclusive use

of jury’s special circumstance findings alone was not sufficient to preclude § 1170.95];

accord, People v. Smith (2020) 49 Cal.App.5th 85, 94 (Smith), review granted July 22,

2020, S262835 [some special circumstance findings will not preclude § 1170.95

eligibility as a matter of law]; People v. York (2020) 54 Cal.App.5th 250, 258 (York),

review granted Nov. 18, 2020, S264954 [“[A] pre-Banks and Clark special circumstance

finding cannot preclude eligibility for relief under . . . section 1170.95 as a matter of law

. . . .”]; People v. Secrease (2021) 63 Cal.App.5th 231, 254 (Secrease) [“[A] murder

defendant facing a pre-Banks and Clark felony-murder special circumstance may

11 properly allege that the murder conviction is no longer valid ‘because of changes to

Section 188 or 189 made effective January 1, 2019.’”].)

B. Robbery and Burglary Special Murder Circumstance Findings.

Here, the jury found defendant guilty of first degree murder with robbery and

burglary special circumstances. (People v. Trout, supra, E025443.) As this court noted

in its prior opinion, section 190.2 provided that “if the defendant was not the actual killer

and did not have the intent to kill, he can receive death or life without parole only if he

was a ‘major participant’ in the underlying felony and acted with ‘reckless indifference to

human life.’ (§ 190.2, subds. (c), (d).)” (Ibid.) Defense counsel conceded at trial that

defendant was a major participant in the robbery and burglary. Since the People

conceded defendant was not the actual killer and did not have an intent to kill, the jury

could only have rendered the special circumstance findings if it found that he had acted

with reckless indifference to human life. (Ibid.)

This court, in upholding the sufficiency of the evidence to support the jury’s

robbery and burglary special circumstance findings, identified several factors supporting

the conclusion that defendant acted with reckless indifference to human life, including:

(1) defendant knew Austin was armed with a handgun; (2) defendant himself carried a

large knife; (3) defendant threatened to shoot the mother if she did not comply; (4) the

jury could reasonably conclude defendant proceeded with the robbery despite an

awareness that Austin was likely to use a gun if a struggle ensued; and (5) defendant told

12 the police he shot the victim and did not assist the victim. (People v. Trout, supra,

E025443.)

The jury’s findings, and this court’s affirmance of those findings, even under

current law, would render defendant ineligible for relief pursuant to section 1170.95.

(§ 189, subd. (e)(2), (e)(3); People v. Verdugo, supra, 44 Cal.App.5th at p. 326; Murillo,

supra, 54 Cal.App.5th at p. 167 [true finding on burglary special murder circumstance

rendered defendant ineligible for § 1170.95 relief]; accord, Galvan, supra, 52 Cal.App.5th

at pp. 1140-1141 [any murder special circumstance finding under § 190.2, subd. (a)(17),

renders defendant ineligible for § 1170.95 relief as a matter of law]; Jones, supra,

56 Cal.App.5th at p. 482 [“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.”]; cf. Gomez, supra, 52 Cal.App.5th at p. 15 [the jury’s true findings on robbery and

kidnapping special circumstance allegations rendered defendant ineligible for § 1170.95

relief as a matter of law]; contra, Torres, supra, 46 Cal.App.5th at p. 1173; accord, Smith,

supra, 49 Cal.App.5th at p. 94; accord, York, supra, 54 Cal.App.5th at p. 258; Secrease,

supra, 63 Cal.App.5th at p. 254.) We agree with Gomez, Galvan, Murillo, and Jones and

hold that the jury’s burglary and robbery special circumstance findings in this case

necessarily established as a matter of law that defendant acted with reckless indifference

to human life. Thus, the trial court properly denied defendant’s petition.

13 C. The Proper Vehicle to Challenge a Felony-murder Special Circumstance

Finding is a Petition for Writ of Habeas Corpus.

Despite the jury’s burglary and robbery special circumstance findings, defendant

contends that the evidence is insufficient to support a finding that he acted with reckless

indifference to human life under Banks and Clark, which were decided subsequent to the

judgment in his case. He therefore asserts he may maintain a challenge to the sufficiency

of the evidence to support those findings in his section 1170.95 proceedings. We

disagree.

A number of cases have found that “the proper remedy for challenging a special

circumstance finding is by a petition for habeas corpus, not a petition for resentencing

under section 1170.95.” (Galvan, supra, 52 Cal.App.5th at p. 1137; see Murillo, supra,

54 Cal.App.5th at pp. 167-168); Gomez, supra, 52 Cal.App.5th at p. 17; Jones, supra,

56 Cal.App.5th at pp. 483-484 [“‘Jury instructions regarding the mental state required for

a felony-murder special circumstance are not defective if they do not include

the Banks and Clark factors. [Citation.] Indeed, the pattern jury instruction regarding

major participation and reckless indifference remains the same as it was

before Banks and Clark.’”.]) Petitioners like defendant “‘had the same incentive’ at their

original trials to attempt to minimize their involvement in the robbery and their

culpability for the killings as they would have had if their trials ‘had taken place

after Banks and Clark.’ [Citation.] In short, Banks and Clark did not significantly

narrow the definitions of ‘major participant’ and ‘reckless indifference,’ and there is no

14 basis for concluding that [defendant’s] jury was asked to resolve different factual issues

than a correctly instructed post-Banks/Clark jury would be asked to resolve.” (Jones, at

p. 484.) We agree with Gomez, Galvan, Murillo, and Jones and hold that the proper

procedure of challenging a felony-murder special circumstance finding is a petition for

writ of habeas corpus.5 Thus, the trial court properly denied defendant’s petition for

resentencing summarily.

III. DISPOSITION

The order denying defendant’s section 1170.95 petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. I concur:

RAMIREZ

P. J.

5 We acknowledge the contrary holdings in Torres, supra, 46 Cal.App.5th 1168, Smith, supra, 49 Cal.App.5th 85, York, supra, 54 Cal.App.5th 250, and Secrease, supra, 63 Cal.App.5th 231, which would allow defendants to challenge the validity of murder convictions that predated the Banks and Clark decisions, by requiring the People to prove, once again, the special circumstances beyond a reasonable doubt. We simply disagree that the language of section 1170.95 provides defendant an opportunity to relitigate special circumstance findings because of the clarification of the requirements for those findings in Banks and Clark. RAPHAEL, J., Dissenting.

I respectfully dissent because I think it incorrect to require defendant and appellant

Donald Robert Trout, who is challenging his murder conviction under Penal Code section

1170.95 (section 1170.95), to set aside his felony murder special circumstance finding

through a petition for a writ of habeas corpus before obtaining review here.

The changes to Penal Code section 189, subdivision (e)(3), effective at the

beginning of 2019 make it possible for a defendant convicted on a felony murder theory

to challenge his murder conviction under section 1170.95 on the ground that he was not a

major participant in the underlying felony who acted with reckless indifference to human

life. With codefendant William Austin, defendant committed a robbery during which

Austin shot the victim dead; in his 1995 jury trial, defendant was convicted of murder on

a felony murder theory. Defendant’s jury was required to find he was a “‘“major

participant”’” with “‘“reckless indifference”’” when it found true his robbery murder

special circumstance. (Maj. opn., ante, at pp. 11-12.) But no court reviewed whether the

facts were sufficient under the later decided People v. Banks (2015) 61 Cal.4th 788

(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).

I think our division had it right in People v. Law (2020) 48 Cal.App.5th 811, 825,

when we held that in such a situation, the special circumstance finding, on its own, does

not preclude an evaluation of the murder conviction under section 1170.95. Today,

following other cases, the majority holds that the “proper vehicle” for the defendant is a

1 habeas petition to set aside his special circumstance findings, and that he may not

“maintain a challenge to the sufficiency of the evidence” in a section 1170.95 proceeding

until he does so. (Maj. opn., ante, at p. 13.) In contrast, I see nothing in the text or

purpose of the statute to require that the special circumstance be set aside through a

habeas petition before the murder conviction can be evaluated under section 1170.95.

Because the evidence supporting defendant’s special circumstance finding has not

been reviewed for sufficiency under Banks and Clark, a court “could properly determine

he was ineligible for relief as a matter of law only after reviewing the available record of

conviction in light of the Banks and Clark factors.” (People v. Harris (2021) 60

Cal.App.5th 939, 956-958, review granted Apr. 28, 2021, S267802.) Here, there are

certainly facts that the prosecution might use to sustain its burden of proof at a section

1170.95 hearing. But under section 1170.95 the court’s authority to make factual

determinations “without conducting an evidentiary hearing pursuant to section 1170.95,

[subdivision] (d) is limited to readily ascertainable facts from the record (such as the

crime of conviction) rather than factfinding involving the weighing of evidence.”

(People v. Harris, supra, 60 Cal.App.5th at p. 958.) For that reason, I would reverse and

remand for the trial court to evaluate the facts through the evidentiary hearing procedures

in 1170.95, subdivision (d).

RAPHAEL

J.

2