People v. Clavano CA4/2

FACTS

A. FIRST RULING ON DEFENDANT’S PETITION

In 2019, defendant petitioned the trial court for resentencing on the basis that he

had been convicted under a natural and probable consequence theory and, under

changes to section 188, he could no longer be convicted of murder. (§ 1172.6.) The

1 An unpublished case may be cited for the purpose of providing background information. (Pacific Gas & Electric Co. v. City and County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10.)

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

2 trial court denied defendant’s petition because defendant was a major participant in the

offense and acted with reckless indifference. (Clavano II, supra, E074133 at p. *1.)

Defendant appealed, and we reversed with directions for the trial court to

reconsider defendant’s petition. (Clavano II, supra, E074133 at p. *8.) In our opinion,

we explained that whether defendant was a major participant in a murder and acted with

reckless indifference are only relevant in a felony murder analysis. (§ 189, subd.

(e)(3).) In the instant case, the jury was not instructed on felony murder, so the trial

court erred…