FACTS AND HISTORY OF THE PROCEEDINGS

We have granted defendant’s motion for judicial notice of our prior decision in his direct appeal. (Evid. Code, § 452, subd. (d).)

former section 1170.95, but we will refer to the current section number throughout this opinion.

2 On March 10, 2004, defendant participated in a home invasion robbery with three others. (People v. Faulalo (Nov. 17, 2008, C055080) [nonpub. opn.] (Faulalo).)3 During the robbery, one of the assailants shot and killed Danny Johnson. (Ibid.) The jury convicted defendant of first degree murder and robbery along with finding true several sentence enhancement allegations, including the special circumstance that the murder was committed in the commission of a robbery under section 190.2, subdivision (a)(17). Defendant was sentenced to life without the possibility of parole plus 10 years for a firearm enhancement. Defendant appealed his convictions and we modified a fee imposed but otherwise affirmed the judgment. (Faulalo, supra, C055080.) On April 26, 2019, defendant filed a form petition for resentencing pursuant to section 1172.6. On the form, he checked various boxes stating that a complaint was filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, that at trial he was convicted of first or second degree murder pursuant to the felony-murder rule or the natural and probable consequences doctrine, and that he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. Defendant also checked the boxes stating that he was not the actual killer, did not aid or abet the killing with the intent to kill, and that he was not a major participant in the felony or that he acted with reckless indifference to human life. The prosecutor filed a response and motion to dismiss and defense counsel filed an

3 On our own motion, we take judicial notice of this prior decision. (Evid. Code, § 452, subd. (d).) We provide this summary of facts from the prior opinion in defendant’s direct appeal solely for context and do not rely on these facts for our analysis or disposition here. (See § 1172.6, subd. (d)(3).)

3 opposition. Defendant attached the jury instructions and signed verdict forms to his brief, including the special circumstance jury instruction. On April 19, 2021, the trial court filed a written order denying the petition without prejudice, allowing him to refile the petition if he in the future obtains relief through a habeas corpus petition. The court explained that defendant is ineligible because, though he was found guilty on a felony murder theory, the jury found true the special circumstance, so it necessarily found defendant was the actual killer, had the intent to kill, or was a major participant who acted with reckless indifference to human life. It also concluded defendant could not challenge this finding under the recent California Supreme Court cases Banks and Clark through a section 1172.6 petition, but instead must first seek relief through a habeas corpus petition.

DISCUSSION

Defendant originally argued that the trial court erred in concluding the special circumstance finding rendered defendant ineligible as a matter of law because that finding was made before Banks and Clark. He argued that, because the California Supreme Court altered the analysis for determining when a defendant is a major participant who acted with reckless indifference to human life, he is not ineligible as a matter of law. Further, he contends he can seek reversal of the special circumstance finding under Banks and Clark through a section 1172.6 petition. In supplemental briefing, the parties now agree, as do we, that the trial court erred in denying defendant’s petition.

Senate Bill 1437 amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, “to ensure that murder liability is not imposed on a person who 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).) Senate Bill 1437 achieves these goals

4 by amending section 188 to require that a principal act with express or implied malice (§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state that a person can be liable for felony murder only if: (1) the “person was the actual killer”; (2) the person, with an intent to kill, was an aider or abettor in the commission of murder in the first degree; or (3) the “person was a major participant in the underlying felony and acted with reckless indifference to human life.” (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3.)

As pertinent here, Senate Bill 1437 also added what is now section 1172.6, which permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the murder conviction and resentence the person on any remaining counts if, among other things, the petitioner could not be convicted of first or second degree murder due to the change in the law. (§ 1172.6, subd. (a).) Upon submission of a facially sufficient petition that requests counsel, the court shall appoint counsel and provide the parties an opportunity to submit briefs. (§ 1172.6, subds. (b)(3), (c).) Following briefing, the court must hold a hearing to determine whether the petitioner has made a prima facie case for relief. (§ 1172.6, subd. (c).) If a sufficient prima facie showing is made, the court must issue an order to show cause. (§1172.6, subds. (c), (d).) The prima facie inquiry under section 1172.6, subdivision (c) is “limited.” (People v. Lewis (2021) 11 Cal.5th 952, 971.) The court “ ‘ “takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.” ’ ” (Ibid.) Although the court may rely on the record of conviction (including a prior appellate court opinion) in determining whether defendant has made a prima facie showing, the court “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.)

5 Since defendant’s convictions, the Supreme Court has refined the analysis for who qualifies as a major participant acting with reckless indifference to human life in Banks and Clark. (People v. Torres (2020) 46 Cal.App.5th 1168, 1179, abrogated on other grounds in People v. Lewis, supra, 11 Cal.5th at p. 963.) After we rejected defendant’s claims in our previous opinion, our Supreme Court decided Strong, which concluded: “Findings issued by a jury before Banks and Clark do not preclude a defendant from making out a prima facie case for relief under Senate Bill 1437. This is true even if the trial evidence would have been sufficient to support the findings under Banks and Clark.” (People v. Strong, supra, 13 Cal.5th at p. 710.) Here, the trial court concluded that the jury’s pre-Banks and Clark findings, which defendant had never set aside through habeas, precluded defendant from making a prima facie showing. The trial court’s conclusion does not survive Strong. Defendant’s resentencing petition was facially sufficient and alleged the essential facts necessary for relief under section 1172.6 if proven. (§ 1172.6, subds. (a)-(c); People v. Lewis, supra, 11 Cal.5th at pp. 970-972.) Nothing in the record demonstrates defendant is ineligible for relief as a matter of law, so we must reverse and remand the matter for the trial court to issue an order to show cause, and, to the extent necessary, conduct an evidentiary hearing. (§ 1172.6, subd. (d).) We express no opinion on the ultimate resolution of the petition.

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DISPOSITION

The trial court’s order denying defendant’s section 1172.6 petition is reversed. On remand, the trial court is directed to issue an order to show cause, and, to the extent necessary, the court shall hold an evidentiary hearing on the petition.

HULL, Acting P. J.

We concur:

MAURO, J.

KRAUSE, J.

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