Filed 8/18/22 P. v. Prado CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Lance Jensen, Judge. Reversed and remanded with directions.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley, Alan L. Amann and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

In 1999, a jury convicted defendant Manuel De Jesus Prado of felony murder as an aider and abettor. The jury found true a felony-murder special-circumstance allegation (a murder during a robbery). The court imposed a life sentence.

The California Supreme Court subsequently filed two opinions providing substantial guidance on factors that must be considered by a jury in felony-murder special-circumstance sentencing enhancements. (People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63 Cal.4th 522 (Clark).)

In 2019, Prado filed a petition seeking to vacate his murder conviction and to be resentenced. (Former Pen. Code, § 1170.95 (now § 1172.6.)^[1] The trial court summarily denied the petition, concluding the felony-murder special-circumstance finding rendered Prado ineligible for relief under section 1172.6 as a matter of law.

While this matter was on appeal, the California Supreme Court held that a pre-Banks/Clark felony-murder special-circumstance enhancement does not render a section 1172.6 petitioner ineligible for relief as a matter of law. (People v. Strong (Aug. 8, 2022, S266606) __ Cal.5th __ [2022 WL 3148797] (Strong).)

Thus, we reverse the trial court’s order and remand the matter, directing the court to issue an order to show cause.

I

FACTS AND PROCEDURAL HISTORY

In 1999, a jury convicted Prado of murder as an aider and abettor during a robbery. The jury found true a felony-murder special-circumstance allegation, and an allegation he was vicariously armed with a firearm. This court affirmed as modified the judgment. (People v. Prado (June 12, 2002, G025872) [nonpub. opn.].)

In 2019, Prado filed a section 1172.6 petition. Prado averred he could not be convicted of murder under current law because he was not the actual killer, he did not aid and abet the killer with the intent to kill, nor was he a major participant in the underlying robbery. The trial court found the enabling legislation unconstitutional and summarily denied the petition. We reversed the court’s order and remanded for further proceedings. (People v. Prado (2020) 49 Cal.App.5th 480, 492.)

On remand, the trial court again denied Prado’s section 1172.6 petition, this time concluding the felony-murder special-circumstance finding precluded relief as a matter of a law. Prado filed this appeal.

II

DISCUSSION

A trial court’s prima facie inquiry under section 1172.6 is “limited.” (People v. Lewis (2021) 11 Cal.5th 952, 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.)

At the prima facie stage, “the 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. Duchine (2021) 60 Cal.App.5th 798, 811-812, fn. omitted.)

Here, the trial court concluded Prado was ineligible for relief as a matter of law because he was convicted of murder and the jury found true a felony-murder special-circumstance allegation. The special-circumstance allegation required the jury to find Prado (as an aider and abettor), was a major participant in the robbery and that he acted with reckless indifference to human life. (See § 190.2, subd. (a)(17)(A).)

In Banks, the California Supreme Court later identified factors that need to be considered in determining whether a defendant was a “major participant” in the underlying felony. (Banks, supra, 61 Cal.4th at pp. 803-804.) In Clark, the Court also identified factors that need to be considered in determining whether a defendant acted with “reckless indifference to human life.” (Clark, supra, 63 Cal.4th at pp. 617-622.)

While this case was on appeal, the Supreme Court resolved a split among the appellate courts and held: “Findings issued by a jury before Banks and Clark do not preclude a defendant from making out a prima facie case for relief under” section 1172.6. (Strong, supra, 2022 WL 3148797, at p. *5.)

In this case, Prado’s petition has never been reviewed under the newer Banks and Clark standards; therefore, under the Supreme Court’s recent ruling in Strong, the trial court erred by summarily denying his section 1172.6 petition.

Thus, on remand the court must issue an order to show cause (and conduct an evidentiary hearing if needed). (§ 1172.6, subd. (d).)

The Attorney General argues, in part, any error was harmless because Prado’s “actions meet the standard of Banks and Clark for a major participant acting with reckless indifference to human life.” (Boldfacing omitted.) However, we decline to evaluate the evidence in this case because: 1) fact finding should not be done at the prima facie stage; and 2) the statute provides that a petitioner may meet his or her burden by offering new or additional evidence at the hearing. (See § 1172.6, subd. (d)(3).)

III
DISPOSITION

The trial court’s order denying Prado’s motion is reversed. On remand, the court is directed to issue an order to show cause.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOTOIKE, J.

^[1] Further undesignated statutory references are to the Penal Code. The Legislature recently renumbered section 1170.95 (Stats. 2022, ch. 58, § 10).