Filed 3/29/22 P. v. Harrison CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant and appellant Timothy Wayne Harrison (Harrison) appeals from an August 20, 2020 order denying his Penal Code section 1170.95 petition to vacate his 1996 first-degree murder conviction.[1]

Harrison contends the trial court erred in denying his petition at the prima facie stage, without issuing an order to show cause and without holding an evidentiary hearing. We agree and, accordingly, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are taken from our unpublished opinion affirming Harrison’s 1996 convictions for first-degree murder and attempted murder, together with related enhancements. (People v. Harrison (Jun. 20, 1996, A067929) [nonpub. opn.] (Harrison I).) We focus only on those facts relevant to this appeal and refer the reader to our prior decision for a more complete recitation of the factual and procedural background of this case.

I. Convictions and Sentencing

At trial, the jury learned of the following course of events.

Between 8 and 9 p.m. on February 12, 1992, Ramon Morales (Morales) and two companions (Jose M. and Jesus M.) were standing in front of a laundromat in East Palo Alto, waiting for a friend. Harrison and two other men walked up. Harrison wore a ski cap, he and one of the other men carried pistols, and they asked Jesus for money. When the victims did not comply, the robbers demanded the money, threatening to kill them. Harrison and the other armed man pointed their pistols at the victims from a distance of six or eight feet. (Harrison I, supra, at pp. 3-4.)

Jose testified he took out his wallet, which contained $400 or $500, and tossed it at the robbers, at which point Harrison shot him in the stomach. Jose identified Harrison by his metallic front tooth. As he fell, Jose heard Morales ask Harrison why he shot Jose, since he had already given him the wallet. Jose heard two more shots but was not aware of much more until the ambulance arrived. (Harrison I, supra, at p. 4.)

Jesus testified he, Jose, and Morales all turned over some money after the robbers pointed their guns at them. Harrison became angry because it was not much and demanded the victims’ jackets as well. Jose was wearing a 49ers jacket; Jesus, a Raiders jacket; and Morales, a black leather jacket. Jose and Morales tossed over their jackets, but Jesus did not have time to do so before the shooting began. The unarmed robber collected the money and jackets. The other gunman said “ ‘let’s kill the Mexicans,’ ” or words to that effect; Harrison said “ ‘good-bye Mexicans,’ ” and smiled. Jesus noticed his gold tooth. Both men began shooting. Harrison shot Jesus and Jose. Jesus thought the other gunman shot Morales, though he did not actually see this. The robbers fled on foot. (Harrison I, supra, at p. 5.)

When the police arrived at the scene, they found Morales dead, shot through the heart. Jose was shot through the left forearm and the left lower abdomen. Jesus was shot in the thigh. The only jacket recovered at the scene was a 49ers jacket; Morales’ wallet, jewelry, and watch had not been taken. When Harrison was arrested on February 20, 1992, he denied any involvement in the shooting and said he was at home at the time of the crimes. (Harrison I, supra, at pp. 5-6.)

Harrison testified that, in the months before the murder, he was living in an apartment around the corner from the laundromat. He sold rock cocaine in the area and went to the laundromat daily. He said racial animosity had arisen between African-Americans and Mexicans when Mexicans began selling drugs in the area. Because of the animosity, each group had its own territories. (Harrison I, supra, at p. 222.)

On the morning of February 12, Harrison parked his car in front of the apartments next to the duplex where Morales lived and positioned himself in the street to sell rock cocaine to motorists. Because business was slow, he moved to another location and then later left the area, returning after 7:00 p.m. When he returned, he was carrying a gun for protection and again tried to sell drugs. (Harrison I, supra, at p. 6.)

Harrison saw the victims standing in front of the laundromat. He had seen them at the laundromat before, but had never spoken to them. They were staring hard at him, and he stared back. Harrison suspected the victims were selling drugs, though he saw no transactions. He decided to see what was happening and asked another drug dealer he knew to watch his back. Harrison walked down the opposite side of the street so the victims would not see him coming, then crossed the street and approached them. He asked Jesus what was happening, in an unfriendly manner. Jesus turned to Jose and said something in Spanish. (Harrison I, supra, at pp. 6-7.)

Harrison saw Jesus reach into his waistband and thought he was reaching for a gun. Harrison then pulled out his gun and pointed it at the victims, telling them to move closer together and lift up their jackets. Harrison saw Jesus turn, and again thought he was reaching for a gun. Harrison never actually saw a gun or any other weapon, but fired two shots toward the ground or the lower part of the laundromat wall. He then heard two or three more shots and realized the dealer he had asked to protect him was also shooting at the victims. Harrison refused to identify the second shooter despite being ordered to do so. After the shootings, Harrison drove off in his car; he threw his gun off the Dumbarton Bridge. At trial, Harrison denied robbing anyone at the time of the shootings, but admitted the alibi he originally gave the police was false. (Harrison I, supra, at p. 7.)

During closing argument, both sides stressed the principal issue was whether the East Palo Alto shootings had occurred during a robbery. The prosecutor stated: “ ‘So, ultimately, the only real major decision, which this [case] comes down to is, was there a robbery, because once you determine there was a robbery, it’s all over for the defendant, it’s that simple.’ ” Defense counsel emphasized the only basis for finding Harrison guilty of murder was that the killing occurred during the commission of a felony (robbery), since there was no evidence Harrison fired the shot that killed Morales. (Harrison I, supra, at p. 10.)

Harrison was convicted of the first-degree murder of Morales (§ 187, subd. (a)), together with a true finding on a special circumstance allegation that the murder was committed during the commission of a robbery (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)), and an allegation that a principal was armed with a firearm during the murder (§ 12022, subd. (a)(1)). Harrison was sentenced to an indeterminate term of life without the possibility of parole plus one year (for the murder, robbery-murder special circumstance, and armed principal enhancement).[2]

On June 20, 1996, this court affirmed the judgment and remanded for the trial court to correct the designation of the robbery conviction in the abstract of judgment. (Harrison I, supra, at p. 21.) Harrison raised no claims challenging the sufficiency of the evidence to support the jury’s verdicts or the robbery-murder special-circumstance finding.

II. Section 1170.95 Proceeding

In 2019, Harrison, representing himself, filed a form petition seeking to vacate his first-degree murder conviction and for resentencing under section 1170.95.[3] He checked boxes indicating, in pertinent part, that a complaint, information, or indictment had been filed that allowed the prosecutor to proceed under a theory of felony murder or murder under the natural and probable consequences, he had been convicted of first or second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine, and 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. He also checked boxes on the form petition indicating he was convicted of first degree felony murder and could not now be convicted because of changes to section 189, effective January 1, 2019 for the following reason: he was not the actual killer; he did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree; he was not a major participant in the felony or he did not act with reckless indifference to human life during the course of the crime or felony; and the victim was not a peace officer or Harrison was not aware that the victim was a peace officer and he should not reasonably have been aware that the victim was a peace officer.

The trial court appointed counsel for Harrison and obtained opposition and a supplemental brief from the district attorney and a reply and supplemental reply from Harrison’s counsel. The court was also asked to consider certain portions of the record of conviction including the jury instructions and verdicts, albeit not the trial transcripts, and our decision in Harrison I.

The parties specifically disputed whether the record of conviction established that Harrison had failed to make a prima facie showing of eligibility for relief. While the district attorney conceded Harrison was convicted under a felony-murder theory, it was contended he could still be convicted of first or second degree murder under section 189, effective January 1, 2019, based on the facts as set forth in our prior appellate decision, from which “a jury could have concluded beyond a reasonable doubt” that either Harrison shot and kill Morales given the proximity when both shooters opened fired, Harrison harbored the intent to kill as he threatened to kill all three victims and subsequently opened fire on all three victims along with the other shooter, or Harrison was a “ ‘major participant’ ” in the underlying robbery who acted with a “ ‘reckless indifference to human life,’ ” based on an application of the factors enunciated in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). In a supplemental brief, the district attorney acknowledged that at least one appellate court had held a robbery-murder special-circumstance finding made before Banks and Clark, as in this case, was not sufficient alone to deny a defendant section 1170.95 relief at the prima facie stage. (People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011 (Torres).) Nonetheless, it was argued that regardless of the robbery-murder special-circumstance finding, the facts as set forth in our prior opinion showed that Harrison was a major participant in the robbery who acted with reckless indifference to human life, which required “no analysis or interpretation.”

On August 20, 2020, without issuing an order to show cause or holding an evidentiary hearing, the trial court found Harrison had failed to make a prima facie showing of eligibility for relief and denied the petition. The court explained its ruling, in pertinent part, as follows:

“[W]e have three participants approaching three victims, at least . . . one or two of the participants have a mask. . . . [A]t least, . . . Harrison personally had the gun. Personally uses the gun. [¶] When you put all that into the Banks-Clark factors, did he use a weapon in this incident? There’s a hole on the victim who was killed, but did . . . Harrison use a weapon in this incident and in his participation? Yes. Was . . . Harrison aware of the danger of this whole situation? Yes, you have to be anytime three people approach three others with guns and intention to rob. Was . . . Harrison present at the scene and did his presence add to or protect from the event taking place? Early in this case he was present and his behavior added or facilitated the whole process of this thing. The last Banks factor would be what did he do afterwards. Well, he fled. I don’t put a whole lot of emphasis on that because somebody fleeing from a crime is not an unusual thing.

“But putting all that together, . . ., those seem to satisfy most of the Banks-Clark factors. [Defense counsel argues] . . . of course do not use disputed facts, and I don’t think I am. . . . I’m not referring to the small details in the appellate opinion. I don’t know who exactly said what when they approached the other group who said, ‘Let’s get the Mexicans,’ was it . . . Harrison or somebody else, so I’m not counting some of those small details that were a little unclear that might be disputed.

“What is clear is that the defendant was armed. The defendant was disguised with a mask. The defendant was present. The defendant actively participated in the robbery. The defendant personally fired a gun at two people and hit them and injured them. Those are in my mind readily ascertainable facts. The jury found him guilty of murder, two attempted murders and use of a gun. Yes, that only applies to Counts 2 and 3 [attempted murder], not to Count 1 [murder], but it still comes together to show quality of how . . . Harrison was acting at that time.

“Was this reckless indifference that could result in a death? Could these acts readily result in a death? Certainly. Anytime [sic] get close with a gun, gun’s out and shoot guns. Was he a major participant under the case criteria? I think he was. And all of this is supported by the charges, the instructions, the verdicts and what I would consider to be undisputed or clearly established . . . facts of this case.

“A prima facie showing does require the court to do something more than see if the boxes are checked. And if there have been honest issues I think it’s appropriate to find that there is a prima facie showing if there’s an honest dispute. . . . But in this case I think the facts and the nature of . . . Harrison’s behavior clearly meet the reckless indifference and major participant standards easily and for that reason at this time I do not find the defense has met and established the prima facie burden, or if you wish, the People have prevailed.”

Harrison’s timely appeal ensued.

DISCUSSION

I. Applicable Law

In 2018, effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437) “ ‘amend[ed] 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).)” (People v. Gentile (2020) 10 Cal.5th 830, 842.)

Senate Bill 1437 added, in pertinent part, section 189, subdivision (e), amending the felony murder rule, which provides that “ ‘[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [(in this case, robbery)] in which a death occurs is liable for murder only if one of the following is proven: [ ] . . . [ ] (3) The person 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.’ ” (People v. York (2020) 54 Cal.App.5th 250, 258, review granted November 18, 2020, S264954 (York).) Hence, “section 189, subdivision (e)(3), as amended by Senate Bill 1437, is now ‘the same as the standard for finding a [felony-murder] special circumstance under section 190.2[, subdivision] (d) as the former provision expressly incorporates the latter.’ ” (People v. Harris (2021) 60 Cal.App.5th 939, 957, review granted April 28, 2021, S267802 (Harris).) As part of Senate Bill 1437, the Legislature also added section 1170.95, which provided “a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)

Since the enactment of Senate Bill 1437, the Courts of Appeal have issued numerous decisions attempting to ascertain the appropriate procedures to be applied at resentencing under section 1170.95. After the trial court’s decision in this case, our Supreme Court issued its decision in Lewis, supra, 11 Cal.5th 952, clarifying certain procedural provisions of former section 1170.95. The Legislature later codified and clarified certain portions of Lewis by enacting Senate Bill 775, which amended several provisions of former section 1170.95, while leaving other provisions unchanged, “reaffirm[ed] the burden of proof at a resentencing hearing; and addresse[d] the evidence a court may consider at a resentencing hearing. (Stats. 2021, ch. 551, § 1, subds. (b)-(d).)” (People v. Mejorado (2022) 73 Cal.App.5th 562, 568, fn. 2, review granted March 23, 2022, S273159 (Mejorado).) Section 1170.95, as amended, now provides that “persons who were convicted of attempted murder or manslaughter under a theory of felony murder [or] the natural and probable consequences doctrine may obtain the same relief as persons convicted of murder under those theories. (Stats. 2021, ch. 551, § 1, subd. (a).)” (Mejorado, supra, at p. 568, fn. 2.)

The amended section 1170.95 envisions three stages of review on a petition for resentencing. At the first stage, the court is asked to determine the facial sufficiency of the petition – that is, whether it alleges, in pertinent part, that (1) an accusatory pleading was filed against the petitioner allowing prosecution under “a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine” (§ 1170.95, subd. (a)(1)); (2) the petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder (id., subd. (a)(2)); and (3) the petitioner “could not presently be convicted of murder or attempted murder because of changes to Sections 188 and 189 made effective January 1, 2019” (id., subd. (a)(3)).

If the petition is facially sufficient, at the second stage, “the court must appoint counsel, if one has been requested, and entertain briefing on the defendant’s entitlement to relief under a prima facie standard. (Lewis, supra, [11 Cal.5th] at p. 962.)” (People v. Wilson (2021) 69 Cal.App.5th 665, 675, review granted December 22, 2021, S271604; see § 1170.95, subd. (b)(3).) “After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing . . ., the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.” (§ 1170.95, subd. (c).)

Following the court’s issuance of an order to show, at the third stage, the court “shall hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts . . . .” (§ 1170.95, subd. (d)(1).) “At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens. A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.” (§ 1170.95, subd. (d)(3).)

II. Parties’ Contentions

We note, as a preliminary matter, that while the petition was initially adjudicated under former section 1170.95, the trial court followed the procedure ultimately codified in the section’s amendments effective January 1, 2022. Specifically, the court, presumably having found the petition to be facially sufficient, appointed counsel for Harrison, allowed the parties to submit briefing, held a hearing to determine whether Harrison had made a prima facie case for relief, and after the hearing provided “a statement fully setting forth its reasons” for refusing to issue an order to show cause. (§ 1170.95, subds. (b), (c).)

A. Robbery-Murder Special-Circumstance Finding Does Not

Statutorily Preclude Section 1170.95 Relief

The trial court’s reasons for summarily denying the petition did not specifically include a reference to the jury’s robbery-murder special circumstance finding. Nonetheless, because we may affirm the summary denial of the petition on any theory of law applicable to the case (People v. Hopson (2017) 3 Cal.5th 424, 459), we address the parties’ arguments as to whether, as a matter of law, Harrison is statutorily ineligible for section 1170.95 relief based on the robbery-murder special circumstance finding made before Banks and Clark.

At the time of the hearing in this case and continuing to date, the Courts of Appeal are divided as to whether a felony-murder special-circumstance finding made before Banks and Clark statutorily precludes a defendant from seeking resentencing under section 1170.95. (Compare Torres, supra, 46 Cal.App.5th at pp. 1179–1180; People v. Smith (2020) 49 Cal.App.5th 85, 93-94, review granted July 22, 2020, S262835 (Smith); York, supra, 54 Cal.App.5th at pp. 258-263; Harris, supra, 60 Cal.App.5th at pp. 956–958 [all holding felony-murder special-circumstance finding made before Banks and Clark does not statutorily preclude section 1170.95 relief], with People v. Gomez (2020) 52 Cal.App.5th 1, 14–17, review granted October 14, 2020, S264033; People v. Galvan (2020) 52 Cal.App.5th 1134, 1141-1143, review granted October 14, 2020, S264284; People v. Allison (2020) 55 Cal.App.5th 449, 457 [all holding felony-murder special circumstance finding made before Banks and Clark statutorily precludes section 1170.95 relief].) The issue ultimately will be decided by our Supreme Court in an appeal currently pending before it, which presents the issue: “Does a felony-murder special circumstance finding (Pen. Code, § 190.2, subd. (a)(17)) made before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 preclude a defendant from making a prima facie showing of eligibility for relief under Penal Code section 1170.95?” (People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.]), review granted March 10, 2021, S266606.)

In the interim, pending the Supreme Court’s decision in Strong, Harrison urges us to follow those courts that have held that a felony-murder special-circumstance finding made before Banks and Clark does not render a defendant ineligible for resentencing as a matter of law. The Attorney General argues to contrary, urging us to follow those courts that have held that a felony-murder special-circumstance finding made before Banks and Clark renders a defendant ineligible for resentencing as a matter of law.

We agree with Harrison and those courts that have held that a felony-murder special-circumstance finding made before Banks and Clark does not render a defendant ineligible for resentencing as a matter of law, including the well-reasoned opinions in Torres, Smith, York, and by our colleagues in Division Four in People v. Secrease (2021) 63 Cal.App.5th 231, review granted June 30, 2021, S268862 (Secrease). Specifically, we conclude “a murder defendant facing a pre-Banks and Clark felony-murder special circumstance may properly allege that the murder conviction is no longer valid ‘because of changes to Section 188 or 189 made effective January 1, 2019,’ which include the addition of ‘section 189, subdivision (e)(3), which provides that to be liable for felony murder (subject to exceptions not here relevant), a defendant must be ‘a major participant in the underlying felony [who] . . . acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.’ ” (Secrease, supra, at p. 254.)

“While it is true that the language of section 189, subdivision (e)(3) tracks language that has always been a part of section 190.2, subdivision (d), Banks and Clark placed new limits on its meaning. Because we must presume the Legislature knows and acts against the backdrop of existing case law [citations], the language of section 189, subdivision (e)(3) as enacted by the Legislature in 2018 necessarily carries the meaning announced in Banks and Clark, since both cases were on the books when Senate Bill 1437 was passed and signed by the Governor.” (Secrease, supra, 63 Cal.App.5th at p. 254.) Accordingly, “[w]here a special circumstance finding was made before Banks and Clark,” as in this case, “the terms ‘major participant’ and ‘reckless indifference’ underlying that finding have significantly different meanings than these terms have for purposes of convicting a defendant of murder pursuant to section 189, subdivision (e)(3), as amended by Senate Bill 1437. As a consequence, a pre-Banks and Clark special circumstance finding cannot preclude eligibility for relief under . . . section 1170.95 as a matter of law, because the factual issues that the jury was asked to resolve in a trial that occurred before Banks and Clark were decided are not the same factual issues our Supreme Court has since identified as controlling.” (York, supra, 54 Cal.App.5th at p. 258; italics in original.) In other words, in a section 1170.95 proceeding, “[a] trial court simply cannot deem the findings underlying the special circumstance [made before Banks and Clark] identical to the findings necessary to preclude eligibility under section 1170.95 without making a separate determination concerning the validity of the special circumstance – something that is not authorized by section 1170.95.” (York, supra, at p. 262.) In any event, “[w]hat permits a defendant convicted of felony murder to challenge his or her murder conviction based on the contention that he or she was not a major participant in the underlying felony who acted with reckless indifference to human life, are the changes Senate Bill 1437 made to sections 188 and 189, and in particular the addition of section 189, subdivision (e)(3), not the rulings in Banks and Clark. This is readily apparent from the fact that, even a petitioner who successfully challenged a special circumstance finding after Banks and Clark, but before Senate Bill 1437 became effective, remained convicted of murder. [Citation.] It took the changes wrought by Senate Bill 1437 to permit the challenge to the murder conviction itself. [Citation].” (York, supra, at p. 261.)

Further, as discussed in York, Smith, and Secrease, our conclusion that a felony-murder special circumstance finding made before Banks and Clark does not preclude resentencing as a matter of law is supported by section 1170.95’s language as originally enacted and currently retained in subdivisions (d)(2), (d)(3), and (f) after the 2021 amendments. “First the statutory text suggests the Legislature saw the new section 1170.95 statutory remedy it created as cumulative to other available remedies, including habeas corpus, given its express statement in section 1170.95, subdivision (f), that ‘[t]his section does not diminish or abrogate any rights or remedies otherwise available to the petitioner.’ Second, section 1170.95 explicitly contemplates that, upon showing a right to relief, a successful petitioner’s ‘prior . . . conviction, and any allegations . . . attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges’ (§ 1170.95, subd. (d)(3)), which suggests the Legislature understood that vacatur of a special circumstance finding may occur as a consequence of a successful section 1170.95 proceeding.” (Secrease, supra, 63 Cal.App.5th at p. 256, citing York, supra, 54 Cal.App.5th at pp. 260–261.)

Third, “[t]he statute does not state that a true finding on a special circumstance allegation automatically precludes relief. To the contrary, the language implies that there is no such bar to eligibility.” (York, supra, 54 Cal.App.5th at p. 260.) “[S]ection 1170.95, subdivision (d)(2) expressly provides that ‘f there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence the petitioner,’ while omitting any reference to a felony-murder special-circumstance true finding being ‘an automatic statutory bar’ to resentencing eligibility. ([i]Smith, supra, 49 Cal.App.5th at p. 94.) When the Legislature intended to categorically exclude classes of people from eligibility for relief under other resentencing regimes in Chapter 4.5, what it did, structurally, was include an express disqualification provision. No such disqualifier for defendants facing a felony-murder special-circumstance finding appears in section 1170.95.” (Secrease, supra, 63 Cal.App.5th at pp. 256–257, fn. omitted.) Indeed, we find it significant that, despite the myriad appellate court decisions extant at the time of the Legislature’s consideration of the 2021 amendments to section 1170.95, the Legislature chose not to amend the statute to address the consequence of a prior finding by a court or a jury that petitioner was a major participant and did act with reckless indifference to human life. “If the Legislature had intended such a finding automatically to preclude eligibility for relief, it could have said so. We will not read a preclusive provision into the statute absent any indication that the Legislature intended one.” (York, supra, at p. 261.)

“Taking one final step in the interpretative process, since section 1170.95 is silent on the question whether a defendant facing a felony-murder special-circumstance finding . . . is entitled to seek relief under the statutory scheme, we find two aspects of the legislative history of Senate Bill 1437 to be broadly relevant. First, one of the Legislature’s objectives was to reduce prison overcrowding and the associated costs of lengthy sentences. Second, to illustrate the type of reform that was needed to better align individual culpability with the length of sentences, the Legislature . . . [cited] to Banks in the legislative history to illustrate trends toward needed reform,” and therefore “it strikes us as implausible that the Legislature intended to exclude every defendant facing a felony-murder special-circumstance finding from eligibility for section 1170.95 relief. The idea of excluding felony-murder special-circumstances defendants from the ambit of the statute, as a class, seems all the more at odds with legislative intent because the high costs of lifetime incarceration are at their peak for inmates who will never be parole-eligible.” (Secrease, supra, 63 Cal.App.5th at pp. 258–259.)

B. Harrison Made a Prima Facie Showing of Eligibility for Resentencing

In summarily denying the petition, the trial court found Harrison had not alleged facts sufficient to state a prima facie case for eligibility after an application of the Banks and Clark factors to what the court considered “undisputed or clearly established . . . facts of this case” as set forth in Harrison I. We conclude this was error.

“While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c) is limited.” (Lewis, supra, 11 Cal.5th at p. 971.) “ ‘ “[T]he 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. If so, the court must issue an order to show cause.” ’ ” (Ibid.) “In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.) “ ‘[T]he trial court should not decide unresolved factual issues that involve credibility determinations or weighing of evidence. Rather, it should decide such issues only after issuing an order to show cause and holding an evidentiary hearing.’ ” (People v. Harden (Mar. 11, 2022, D078191]) __ Cal.App.5th __ [2022 Cal. App. Lexis 201 at p.* 7] (Harden).) “We independently review a trial court’s determination on whether a petitioner has made a prima facie showing.” (Id. at p. *8.)

Here, the trial court’s application of the Banks and Clark factors to what it considered “undisputed or clearly established . . . facts of this case” as set forth in Harrison I, involved the prohibited weighing of evidence and the exercise of discretion at the prima facie stage. Despite the court’s statement that it was not relying on disputed facts, the inquiry as to whether a defendant is a major participant in a felony who acted with reckless indifference to human life, “necessarily requires the weighing of facts and drawing inferences.” (People v. Drayton (2020) 47 Cal.App.5th 965, 982 (Drayton), italics added, overruled in part on another ground in Lewis, supra, 11 Cal.5th at p. 963.) The court’s “authority to make 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 or the exercise of discretion (such as determining whether the petitioner showed reckless indifference to human life in the commission of the crime).” (Drayton, supra, at p. 980.) By its ruling, the trial court in effect “compare[d] the facts recited in the prior appellate opinion to those asserted by [Harrison] and decide[d] which version to credit,” which is not permissible at the prima facie stage. (Harden, supra, 2022 Cal. App. Lexis at p. *14; see Harris, supra, 60 Cal.App.5th at p. 959 [at prima facie stage trial court’s reliance on prior appellate opinion was improper where “some of the facts made particularly significant by the Supreme Court’s decisions in Banks and Clark were disputed at trial and not clearly resolved by the jury’s finding”].)

Because Harrison’s section 1170.95 petition stated a prima facie case that he is potentially eligible for relief, and the trial court had no valid basis for finding he was ineligible for relief as a matter of law, we will reverse the summary denial of the petition, and remand this matter to the court to issue an order to show cause and thereafter hold a hearing to determine whether to vacate Harrison’s first degree murder conviction, recall the sentence, and resentence him. At the hearing, the juvenile court shall apply the evidentiary rules as set forth in section 1170.95, subdivision (d)(3), as amended by Stats. 2021, ch. 551, § 2.

DISPOSITION

The August 20, 2020 order denying the petition for resentencing is reversed. The matter is remanded to the trial court with directions to issue an order to show cause under Penal Code section 1170.95, subdivision (c), and thereafter hold a hearing under Penal Code section 1170.95, subdivision (d) to determine whether to vacate Harrison’s first degree murder conviction, recall the sentence, and resentence him.

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Petrou, J.

WE CONCUR:

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Fujisaki, Acting P.J.

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Rodríguez, J.

A160852/People v. Harrison

[1] All undesignated statutory references are to the Penal Code. While this appeal was pending, the Legislature enacted Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551) (Senate Bill 775), amending section 1170.95, effective January 1, 2022. (Stats. 2021, ch. 551; Cal. Const., art. IV, § 8, subd. (c)(1).) Harrison is entitled to the benefit of the new amendment to section 1170.95 as “a defendant generally is entitled to benefit from amendments that become effective while his case is on appeal.” (People v. Vieira (2005) 35 Cal.4th 264, 305; see People v. Porter (2022) 73 Cal.App.5th 644, 652 [appellate court found new amendments made to section 1170.95 applied to the defendant’s petition as “the trial court’s order denying the petition is not yet final and Senate Bill No. 775 has already taken effect”].)

[2] Harrison was also convicted of two counts of attempted murder (Jose and Jesus), together with true findings on allegations that he personally used a firearm in the commission of the attempted murders and robbery, and had inflicted great bodily injury on one of the surviving victims.

[3] Although Harrison initially sought to also challenge his convictions for attempted murder, he later withdrew that request. In his section 1170.95 briefing, Harrison confirmed he was not challenging his convictions for attempted murder as he was not convicted under the natural and probable consequences theory for any offense and only the felony murder rule “is implicated with regard to the murder count.” Consequently, only the murder conviction is at issue on this appeal.