Filed 5/16/22 P. v. Guzman CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Kings County. Valerie R. Chrissakis, Judge.

Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In 2005, a jury convicted petitioner Jose Pedro Guzman of the first degree murder of Paul Lemus (Pen. Code,[1] § 187, subd. (a), count 1). The jury found true the special circumstance that petitioner committed the murder while engaged in the commission or attempted commission of robbery (§ 190.2, subd. (a)(17)(A)).[2] The trial court sentenced petitioner to a term of life without the possibility of parole and imposed a consecutive 25‑year-to-life term for a firearm enhancement (§ 12022.53, subds. (d), (e)(1)) and a consecutive one-year prior prison term enhancement pursuant to section 667.5, subd. (b).[3] (People v. Guzman (Sept. 21, 2006, F048683) [nonpub. opn.] (Guzman).)

In 2019, petitioner filed a petition for resentencing on his murder conviction pursuant to section 1170.95. The court summarily denied the petition at the prima facie stage finding that petitioner was a major participant who acted with reckless indifference to human life, a disqualifying factor pursuant to section 1170.95.

On appeal, petitioner contends the trial court erred in both failing to appoint counsel and improperly considering the record of conviction at the prima facie stage. Further, petitioner contends that even if the trial court was permitted to consider the record of conviction at the prima facie stage, the special circumstance allegation should not categorically bar him from resentencing relief pursuant to section 1170.95 and that the record does not establish petitioner was a “major participant” who acted with “reckless indifference to human life.”

We conclude the trial court was not required to appoint counsel because petitioner did not request appointed counsel in his petition. We further conclude the trial court was permitted to consider the record of conviction in making its determination at the prima facie stage. Moreover, we conclude the special circumstance finding is dispositive thereby making petitioner ineligible for resentencing relief as a matter of law. Accordingly, we affirm the trial court’s order denying resentencing relief pursuant to section 1170.95.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are from our unpublished opinion in petitioner’s prior direct appeal.[4]

“[] Accomplice Testimony

“Laura Holt was with [petitioner], [Jose] Perez, and [Eduardo] Hernandez on December 29, 2003. They spent part of the evening drinking at someone’s house in Laton, and then Holt drove the group in her car to a basketball game in Riverdale. As it turned out, they did not attend the game and after a short period of time they returned to Laton and went to the home of J[.] Rodriguez (a.k.a. Huero).

“Holt, [petitioner], Hernandez and Perez smoked methamphetamine with Rodriguez, joined by A[.] Ruelas (a.k.a. Crack). [Petitioner], Hernandez and Perez began talking about robbing someone. [Petitioner] asked Rodriguez for a gun. Rodriguez did not want to give it to him. [Petitioner] told Rodriquez that he was not going to shoot the gun; he only needed it to scare someone while he robbed them. Rodriguez gave the gun to [petitioner].

“At trial, Holt was shown a picture of a gun, and testified that the gun looked like the gun Rodriguez gave to [petitioner].

“Holt, [petitioner], Hernandez and Perez left in Holt’s car. Holt was driving. They drove around trying to decide where to go to rob someone. While driving around, Perez, [petitioner] and Hernandez talked about the robbery. They discussed stealing a vehicle with a stereo system. They drove to Hanford to find their target. They drove around the Hanford mall parking lot to look at cars. They did not find anything that suited their purposes.

“Discussions continued, and Perez said he wanted to do a carjacking. Hernandez wanted to do a home invasion. [Petitioner] did not join in this discussion. [Petitioner] and Perez argued over who was going to possess the gun. [Petitioner] finally let Perez have his way and possess the gun. The gun had been loaded previously in the car by [petitioner].

“The group then drove to a residential area and looked around. Again finding nothing, they returned to the area of the mall. They saw a blue Chevrolet truck, lowered, with tinted windows, driven by Paul Lemos, the victim. Hernandez liked the truck and told Holt to follow it. She did. Holt parked her car nearby while Lemos drove through the drive-through at Taco Bell and purchased food.

“Holt continued to follow the truck. At one stop light the victim’s truck was next to another nice truck. The group decided that the victim’s truck was the nicest. Perez got out and started to go towards the truck when [petitioner] and Hernandez told him to get back in the car.

“They followed the victim in his truck until the victim arrived at his house. Holt backed the car up and stopped at the corner. She could not see the truck from her location. Perez and Hernandez jumped out and ran towards the truck. Hernandez told Holt to follow them after they obtained the truck. [Petitioner] got out shortly afterwards and stood near the car. Holt was not sure if [petitioner] stayed near the car because she was feeling ill from the drugs and was not paying attention. She kept the engine running.

“Holt heard two gunshots. [Petitioner] got in the car. Perez and Hernandez ran to the car and got in. They told her to take off. She did.

“In the car, Hernandez said that he was punching the victim. The victim was scared and crying. Hernandez told Perez he should have used his hands instead of a gun to take things from the victim. Perez stated that he thought he shot the victim in the shoulder and missed with the other two shots. Hernandez said that Perez should have taken the victim’s wallet while Hernandez was punching him.

“Holt drove the group back to Laton. She was told not to say anything. Holt dropped Perez off at his house so he could change his clothes and wash up to get rid of any gun residue. Holt, [petitioner], and Hernandez drove back to Rodriguez’s home and again used drugs. Ruelas was still there. Hernandez and [petitioner] told Rodriquez he needed to get rid of the gun. Perez showed up shortly thereafter. The group stayed there about an hour. During this time the gun was returned to Rodriguez. They then decided they would go to Fresno to try and find some more drugs. Their trip was unsuccessful, and they returned to the home of Rodriguez and used more drugs.

“Holt, [petitioner], Hernandez, and Perez left in Holt’s car. They were stopped by police. When they were stopped, Hernandez ran and was not captured. The others discussed their alibi. They decided they would say that Holt had picked them up from City Lights in Fresno. [Petitioner] came up with a name he would use. Officers removed them individually from the car and separated them. They were eventually allowed to leave. Holt went with [petitioner] to his brother’s house.

“Two months before trial Holt was in a holding cell. Perez, Hernandez, and [petitioner] were being held in the same area. Perez asked Holt to take back her deal and not testify; Hernandez joined in asking Holt to change her mind. [Petitioner] told her he wanted to marry her.

“[] Nonaccomplice Evidence

“C[.] Padilla knew the victim. On December 29, 2003, she had a cellular telephone conversation with Lemos while she was riding in a van. She heard a loud sigh and Lemos stopped talking. She heard the beeping sound that is made when the door to a vehicle is open and the keys are left in the ignition.

“Diana D.[5] lived next door to Lemos. On the night of December 29, 2003, she was outside on her front porch. She heard someone say, ‘F[***] you b[****], you f[***]in’ scrap.’ She looked and saw two men standing near each other by the back of the truck. One of the individuals had a gun pointed sideways at Lemos. Diana went inside of her house. She heard three shots. She looked out and saw Lemos fall to his knees in the driveway; the other individuals ran away. She heard two car doors close and heard a car ‘screech off.’ She came out of her house and saw Lemos on the ground holding the back of his head and making moaning sounds.

“When Diana first spoke to an investigator that evening, she told them she did not see anything. She was afraid. Her husband told her to tell the truth, and later that evening she told officers what she had seen.

“Diana identified Perez as the person with the gun she saw standing by the victim’s truck at the time he was shot.

“S[.] Villagran was driving by the park. She drove further down the street and parked on the street near the victim’s house so she could talk with a friend in the car. She saw a small white car parked on the corner. She heard two gunshots. She saw two people run to the car and get in. The car took off with the headlights off. Villagran followed them trying to get their license number. She stopped following the car when the car turned left towards Laton. She went back to the area and told law enforcement officers what she had seen.

“Hanford police officer Richard Pontecorvo responded to the scene of the murder. [Fn. omitted.] The truck was parked in the driveway. The driver’s door was open; there was a Taco Bell bag on the ground as well as a Taco Bell cup. A cellular telephone was on the ground by the truck. They keys were in the ignition of the truck. The stereo system in the truck was not missing. There were no shell casings in the area.

“In the early morning hours of December 30, 2003, Pontecorvo drove to Laton looking for the vehicle. He observed a vehicle that matched the description of the vehicle leaving the crime scene. Pontecorvo followed the vehicle. The occupants of the vehicle kept looking back at Pontecorvo as he followed it. Pontecorvo stopped the vehicle. One person fled the scene. He removed the other three occupants of the car. Holt was the driver of the car. [Petitioner] was seated in the front passenger seat; he misidentified himself as Alex Gutierrez. Perez was in the rear passenger seat. Holt said that she had picked up the men from City Lights in Fresno.

“Lemos died from a single gunshot wound to the left side of his head. In addition, he had swelling to his right eye that was not consistent with a gunshot wound but was consistent with blunt force trauma. A deformed slug was recovered from the victim’s brain.

“Several days after the murder, a search was conducted at the home of Rodriguez. Rodriguez was there, as was Ruelas. In addition, M[.] Tapia and R[.] Gonzalez were there. Officers found weapons, ammunition, drugs, and drug paraphernalia. Rodriquez said that he gave the gun to defendant for protection but the gun was never returned to him.

“The home of Robert G[.] was searched. The weapon was not found. Several days later, Robert turned a weapon over to law enforcement. Robert is the brother of Raul G[.] and the uncle of [] Tapia, one of the individuals at the home of Rodriquez when it was searched for the weapon. Robert said he had received an anonymous call regarding the location of the gun. He went to the location and found the gun in a paper bag by the side of the road. He refused to provide any further details about the gun.

“Robert testified that he received a call and the unidentified male caller asked him if he was going to testify. The caller said he knew where he lived. When the gun was turned in, Robert said he got the gun from [] Tapia.

“A criminalist test-fired the gun turned in by Robert. Because the gun was worn and old, the criminalist was not able to get nice crisp characteristics to compare to the fragment recovered from the victim, but the bullets agreed as far as land, grooves and twists and the bullet retrieved from the victim was consistent with being fired from the gun.

“[] Rodriquez testified that he did not know [petitioner], did not know [] Tapia, and did not give [petitioner] a gun. He additionally testified that he did not know Perez or [petitioner] even though there were pictures of them found in his trailer. He admitted he was convicted of possession of methamphetamine for sale and possession of a firearm as a result of the search of his house for the gun. [] Tapia was present when the search was conducted.

“Pontecorvo said that when officers searched the home of [] Rodriquez, Rodriquez said that [petitioner] had not given the gun back to him.

“On February 22, 2004, officers went to the home of M[.] Pina to serve an arrest warrant for Hernandez and [petitioner]. They knocked on the door. [Pina] answered and said [petitioner] was inside with Hernandez. Officers posted at the rear of the house apprehended Hernandez and [petitioner] after they ignored orders to go to the ground and tried to escape.

“[] Pina testified that she was living with Hernandez and [petitioner] on February 22, 2004. L[.] Hernandez is the father of her children and also the cousin of [petitioner] and Hernandez. Pina was having a relationship with [petitioner] at this time. Prior to the arrest of [petitioner] and Hernandez, Pina had several conversations with them. Roxanne, the mother of Hernandez’s children, was present during some of the conversations.

“During the conversations, Hernandez told them that Perez shot the person in the truck and Holt drove them. [Petitioner] said that Perez liked the victim’s truck and Perez told Holt to follow it. Perez said he was going to take the victim’s money and his truck. [Petitioner] also said that Perez shot the victim. Pina was told that Perez told the victim to give him all of the money and the victim asked not to be killed. The victim reached for something and Hernandez said the victim was reaching for a gun. Perez shot the victim. When [petitioner] talked about the incident he cried and said he did not do it.

“Numerous law enforcement officials described contacts with [petitioner], Hernandez, and Perez involving the Laton Bulldog gang and their membership in the gang.

“Ralph Paolinelli, an expert on the Laton Bulldogs gang, testified that ‘scrap’ is a term used by Norteno Bulldogs to disrespect Surenos. The Laton Bulldogs are rivals with both the Sureno and Norteno gangs. It was Paolinelli’s opinion that Hernandez, Perez, and [petitioner] are members of the Bulldog gang.

“An officer searched the victim’s bedroom, finding nothing associated with any type of gang affiliation.” (Guzman, supra, F048683, italics added.)

On June 20, 2005, the Kings County District Attorney filed an amended information charging petitioner with the first degree murder of Lemus (§§ 187, subd. (a), 189); count 1) with the special circumstances petitioner committed the murder while an active participant in a criminal street gang (§ 190.2, subd. (a)(22))[6] and that the murder was committed during the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)). It was further alleged the murder was committed in furtherance of a criminal street gang (§ 186.22, subd. (b)(1)) and that a principal personally and intentionally discharged a handgun which proximately caused death to Lemus (§§ 12022.53 subds. (b), (c), (d), (e)(1), 12022.5, subd. (a)). Finally, the information alleged petitioner suffered a prior strike conviction (§§ 667, subd. (b)–(i), 1170.12, subd. (a)–(d)), and had served a prior prison term (§ 667.5, subd. (b)).

On July 15, 2005, the jury convicted petitioner[7] of first degree murder and found true the special circumstance that the murder was committed during the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)). The jury also found true the enhancements the murder was committed in furtherance of a criminal street gang (§ 186.22, subd. (b)(1)) and that the principal personally and intentionally discharged a firearm causing death to Lemus (§ 12022.53, subds. (d), (e)). In addition, petitioner admitted the allegations that he suffered a prior strike conviction and served a prior prison term. (Guzman, supra, F048683.)

On August 12, 2005, the trial court sentenced petitioner to a term of life without the possibility of parole with a consecutive term of 25 years to life for the firearm enhancement (§ 12022.53, subds. (d), (e)(1)) and a consecutive one-year term for the prison prior (§ 667.5, subd. (b)). As to the gang enhancement (§ 186.22, subd. (b)(1)), the trial court sentenced petitioner to the upper term of 10 years, but stayed the sentence pursuant to section 654.

In petitioner’s direct appeal, he argued in relevant part there was insufficient evidence to support the jury’s true finding on the robbery special circumstance. (Guzman, supra, F048683.) This court disagreed and concluded substantial evidence existed to support the finding. (Ibid.) Specifically, this court stated:

“In this case, [petitioner] was the individual who acquired the gun and loaded it. He participated fully in the plans to commit an armed robbery. He participated in the stalking of the victim and called off Perez when he started to approach the victim on a public street. [Petitioner] got out of the car, presumably acting as a lookout, while Perez and Hernandez committed the attempted robbery. [Petitioner] heard gun shots and jumped in the car, not offering any assistance to the victim. Under these facts, the jury could properly have found that [petitioner] was a major participant and acted with reckless indifference to human life. Substantial evidence supports the special circumstance.” (Guzman, supra, F048683.)

Accordingly, this court affirmed the judgment. (Ibid.)

On August 12, 2019, petitioner, in propria persona, filed a petition for resentencing on his murder conviction pursuant to section 1170.95. In an attached declaration, petitioner stated that an information was filed against him that allowed the prosecution to proceed under a theory of first degree felony murder; a jury convicted petitioner of first degree murder pursuant to the felony-murder rule and/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 stated 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 did not act with reckless indifference to human life; and the victim of the murder was not a peace officer acting in the performance of his duties. Moreover, as a part of his petition, petitioner argued the evidence presented in his trial was insufficient to support the robbery special circumstance finding based on the five‑factor test set forth in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). Petitioner did not request appointed counsel in his petition.

The district attorney filed a response arguing that petitioner is ineligible for section 1170.95 resentencing relief because he was a principal in the murder who acted with implied malice. The People additionally argued that Senate Bill No. 1437

(2017–2018 Reg. Sess.) (Senate Bill 1437) is unconstitutional. Petitioner, in propria persona, filed a reply arguing that he is eligible for relief and that Senate Bill 1437 is constitutional. The trial court, without addressing the constitutionality of Senate Bill 1437 and without appointing counsel for petitioner, denied the petition on the basis that:

“The California Court of Appeal, Fifth Appellate District has found that Petitioner was a major participant in a felony enumerated in Penal Code § 189(a) and that he acted with reckless indifference to human life:

‘In this case, [petitioner] [Guzman] was the individual who acquired the gun and loaded it. He participated fully in the plans to commit robbery. He participated in the stalking of the victim and called off Perez when he started to approach the victim on a public street. [Petitioner] got out of the car, presumably acting as a lookout, while Perez and Hernandez committed the robbery. [Petitioner] heard gun shots and jumped in the car, not offering any assistance to the victim. Under these facts, the jury could properly have found that [petitioner] was a major participant and acted with reckless indifference to human life. Substantial evidence supports [the conviction].’ [Citation omitted.]

“Since the record establishes that Petitioner was a major participant in a felony enumerated in Penal Code § 189(a) and acted with reckless indifference to human life in the commission of that felony, his first degree murder conviction shall stand despite the enactment of Senate Bill 1437.”

A timely appeal followed.

DISCUSSION

I. Applicable Law

Effective January 1, 2019, the Legislature passed Senate Bill 1437 “to amend the felony murder rule and the natural and probable consequences doctrine … 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).) The bill accomplished this task by adding three separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a principal to act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842–843.) Second, to amend the

felony-murder rule, the bill added section 189, subdivision (e):

“A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (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.”[8] (§ 189, subd. (e); accord, Gentile, supra, 10 Cal.5th at p. 842.)

Finally, the bill added section 1170.95 to provide a procedure for those convicted of a qualifying offense “to seek relief under the two ameliorative provisions above.” (Gentile, at p. 843.) This procedure is available to persons convicted of “felony murder or 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, attempted murder under the natural and probable consequences doctrine, or manslaughter.” (§ 1170.95, subd. (a).)

“Section 1170.95 lays out a process” for a person convicted of one of the aforementioned offenses “to seek vacatur of his or her conviction and resentencing.” (Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the sentencing court averring that:

“(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed 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[;]

“(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[; and]

“(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)–(3); see also § 1170.95, subd. (b)(1)(A); accord, People v. Lewis (2021) 11 Cal.5th 952, 959–960 (Lewis).)

Additionally, the petition shall state “[w]hether the petitioner requests the appointment of counsel.” (§ 1170.95, subd. (b)(1)(C).)

If a petition fails to contain the required information and the information cannot be “readily ascertained” by the court, the petition may be denied without prejudice to the filing of another petition. (§ 1170.95, subd. (b)(2).) Otherwise, counsel must be appointed, if requested. (§ 1170.95, subd. (b)(3).) The prosecutor must file a response and the petitioner may file a reply. The trial court must then hold a hearing to determine if the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1170.95, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961–963, 967.) In making this determination, the court may rely on the record of conviction. (Lewis, at

pp. 970–971.) The record of conviction includes, but is not limited to, jury instructions and verdict forms. (See generally id. at p. 972.) However, the prima facie inquiry is limited and, at this stage of the proceedings, the court “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at pp. 971–972.)

If the court determines the petitioner has met his or her prima facie burden, “the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder[, attempted murder, or manslaughter] conviction and to resentence the petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at p. 853; accord, § 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must “prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet their respective burdens. The admission of evidence at the hearing is governed by the Evidence Code. However, the court also “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,” as well as the “procedural history of the case recited in any prior appellate opinion.” (§ 1170.95, subd. (d)(3).) Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of section 872 is inadmissible at the evidentiary hearing, unless made admissible by another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)

To demonstrate prejudice from the denial of a section 1170.95 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972–974; see People v. Watson (1956) 46 Cal.2d 818, 836.)

II. Analysis

Petitioner contends the trial court erred in both failing to appoint counsel and considering the record of conviction at the prima facie stage. Further, petitioner contends that even if the trial court was permitted to consider the record of conviction at the prima facie stage, the special circumstance allegation should not categorically bar him from section 1170.95 resentencing and the record does not establish petitioner was a “major participant” who acted with “reckless indifference to human life.” We conclude the trial court was permitted to consider the record of conviction at the prima facie stage. We further conclude the court was not required to appoint counsel because petitioner did not request appointed counsel. However, even if we were to conclude the trial court erred in failing to appoint counsel, petitioner was not prejudiced by this error because the record of conviction establishes, as a matter of law, that he is ineligible for resentencing relief pursuant to section 1170.95.

A. The Trial Court Was Not Required to Appoint Counsel Because Petitioner Did Not Request Appointed Counsel in his Petition.

Petitioner contends that a petitioner is entitled to counsel at the prima facie stage. Since the filing of both parties’ briefs, our Supreme Court has held that once “a complying petition is filed; the court appoints counsel, if requested; the issue is briefed; and then the court makes one (not two) prima facie determination.” (Lewis, supra, 11 Cal.5th at p. 966, fn. omitted, italics added.) This right to counsel was codified by Senate Bill No. 775 (2021–2022 Reg. Sess.), which amended section 1170.95 to state, “Upon receiving a petition in which the information required by this subdivision is set forth or a petition where any missing information can readily be ascertained by the court, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.” (§ 1170.95, subd. (b)(3), italics added.) Simply put, a petitioner has a right to counsel during the 1170.95 resentencing process if he or she has requested counsel.

Here, petitioner made all the necessary declarations in his 1170.95 petition, but did not request appointed counsel. The trial court, without appointing counsel, allowed briefing and then denied the petition finding petitioner ineligible for resentencing relief. The trial court was not required to appoint counsel because petitioner never requested counsel. (§ 1170.95, subd. (b)(3); Lewis, supra, 11 Cal.5th at p. 966, fn. omitted.)

B. The Trial Court Was Permitted to Consider the Record of Conviction in Determining Whether Petitioner Made a Prima Facie Showing for Resentencing Eligibility

Since the filing of both parties’ briefs, our Supreme Court held that a trial court may rely on the record of conviction at the prima facie stage when determining whether a petitioner is eligible for section 1170.95 resentencing relief. (Lewis, supra, 11 Cal.5th at pp. 970–971.) The record of conviction includes, but is not limited to, prior appellate opinions, jury instructions and verdict forms. (See generally id. at p. 972.) However, at the prima facie stage, the trial court “should not engage in ‘factfinding involving the weighing of evidence and exercise of discretion.’ ” (Id. at pp. 971–972.)

In its order, the trial court denied the petition because it concluded petitioner was a major participant who acted with reckless indifference to human life. The trial court relied on the record of conviction, specifically this court’s prior opinion in Guzman, supra, F048683, where this court determined substantial evidence supported the jury’s true finding on the robbery special circumstance. The trial court was permitted to consider our prior analysis and the jury’s special circumstance finding in determining petitioner’s ineligibility for section 1170.95 resentencing relief. (Lewis, supra, 11 Cal.5th at p. 972.)

C. Petitioner Is Ineligible for Resentencing Relief as a Matter of Law.

However, even assuming the trial court erred in failing to appoint counsel, we conclude petitioner cannot demonstrate prejudice because the record establishes he is ineligible for resentencing as a matter of law. (Lewis, supra, 11 Cal.5th at pp. 972–974; see People v. Watson, supra, 46 Cal.2d 818, 836.)

i. The Special Circumstance Finding Is Dispositive.

To be eligible for relief pursuant to section 1170.95, petitioner must not have been the actual killer, must not have acted with the intent to kill or malice aforethought, and must not have been a major participant in the underlying felony who acted with reckless indifference to human life. (§§ 188, subd. (a)(3), 189, subd. (e), 1170.95, subd. (a)(3); see Gentile, supra, 10 Cal.5th at p. 842.)

Here, the jury found true the robbery special circumstance (§ 190.2, subd. (a)(17)(A)). At the time of the offense, section 190.2, subdivision (a)(17) imposed a death sentence or a sentence of life without the possibility of parole for a murder committed in the commission or attempted commission of robbery (§ 190.2, subd. (a)(17)(A)). To find this circumstance true, the jury was required to find either that petitioner was the actual killer, or that petitioner intentionally aided and abetted in the murder, or that petitioner was a major participant, who assisted in the commission of an enumerated felony and acted with reckless indifference to human life. (§ 190.2, subds. (b), (c), (d).) Therefore, the true finding on the robbery special circumstance allegation establishes the jury made the requisite findings necessary to sustain a murder conviction under the law, as amended by Senate Bill 1437.

ii. A Pre-Banks and Clark Special Circumstance Finding Pursuant to Section 190.2, Subdivision (a)(17) Precludes Section 1170.95 Resentencing Relief as a Matter of Law.

Nevertheless, petitioner argues that the special circumstance finding should not render him ineligible for resentencing relief as a matter of law. Specifically, petitioner cites Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522 for the proposition that these cases narrowed the legal meaning of “major participant” and “reckless indifference to human life.”[9] “Banks and Clark ‘clarified “what it means for an aiding and abetting defendant to be a ‘major participant’ in a crime who acted with a ‘reckless indifference to human life.’ ” ’ [Citation.] Banks identified certain factors to consider in determining whether a defendant was a major participant; Clark identified factors to guide the determination of whether the defendant acted with reckless indifference to human life.” (People v. Gomez (2020) 52 Cal.App.5th 1, 13, fn. 5, review granted Oct. 14, 2020, S264033 (Gomez).) Courts of Appeal are split on the question of whether a special circumstance finding entered prior to Banks and Clark renders a petitioner ineligible for section 1170.95 resentencing relief as a matter of law (see People v. Jones (2020) 56 Cal.App.5th 474, 478–479 [collecting cases], review granted Jan. 27, 2021, S265854 (Jones)), and our Supreme Court has granted review to decide the issue (People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review granted Mar. 10, 2021, S266606).

Courts which have held that a pre-Banks and Clark felony-murder special‑circumstance finding bars section 1170.95 resentencing relief have reasoned that Banks and Clark merely clarified the law as it always was. (Jones, supra, 56 Cal.App.5th at pp. 482, 484, review granted; accord, People v. Nunez (2020) 57 Cal.App.5th 78, 92, review granted Jan. 13, 2021, S265918; People v. Allison (2020) 55 Cal.App.5th 449, 458.) These courts further note that our Supreme Court does not require juries to be instructed on the Banks and Clark clarifications. “Rather, while CALCRIM No. 703 now includes optional language drawn from Banks and Clark regarding the factors a jury may consider, ‘[t]he bench notes to the instruction state that Banks “stopped short of holding that the court has a sua sponte duty to instruct on those factors,” and Clark “did not hold that the court has a sua sponte duty to instruct on those factors.” ’ ” (Nunez, at pp. 92–93; accord, Jones, at p. 484; Allison, at pp. 458–459.) Thus, these courts found “no basis to conclude as a general matter that a pre-Banks and Clark jury was instructed differently than a post-Banks and Clark jury, or resolved different factual issues, answered different questions, or applied different standards.” (Nunez, at p. 94.)

These courts have also held that an attack on a special circumstance finding in a section 1170.95 proceeding effectively constitutes a collateral attack on the judgment. (People v. Galvan (2020) 52 Cal.App.5th 1134, 1142; Gomez, supra, 52 Cal.App.5th at p. 16, review granted.) According to these courts, a petitioner who wishes to argue the special circumstance finding is invalid under current law must first seek to invalidate that finding through a petition for writ of habeas corpus before seeking resentencing pursuant to section 1170.95. (Galvan, at p. 1142; Gomez, at p. 17; Jones, supra, 56 Cal.App.5th at p. 485, review granted.) These courts reason that a contrary interpretation “would read into section 1170.95 a new procedure allowing petitioners to ignore a special circumstance finding—no matter how well supported in the record—as well as the recognized method of challenging it. Such petitioners would be allowed to relitigate a prior jury finding at an evidentiary hearing where the prosecution bears the burden of proving the truth of the finding, beyond a reasonable doubt, a second time.” (Jones, at p. 485.)

On the other hand, courts that have found a special circumstance finding insufficient to render a petitioner ineligible for relief have reasoned that Banks and Clark “construed section 190.2, subdivision (d) in a significantly different, and narrower manner than courts had previously construed the statute.” (People v. Torres (2020) 46 Cal.App.5th 1168, 1179, review granted June 24, 2020, S262011; accord, People v. Harris (2021) 60 Cal.App.5th 939, 958, review granted Apr. 28, 2021, S267802.) Thus, these courts surmised that a petitioner with a pre-Banks and Clark special circumstance finding may have been convicted based on “conduct that is not prohibited by section 190.2 as currently understood.” (Torres, at p. 1180; accord, Harris, at p. 958; People v. York (2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954; People v. Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835.) To the extent the jury’s finding on a felony-murder special circumstance is legally insufficient under Banks and Clark, it cannot refute a prima facie showing of entitlement to resentencing relief. (People v. Secrease (2021) 63 Cal.App.5th 231, 256, review granted June 30, 2021, S268862.) Accordingly, in considering whether a petitioner is entitled to relief pursuant to section 1170.95, the trial court must first determine whether “the evidence presented at trial was sufficient to support the felony-murder special‑circumstance finding under Banks and Clark.” (Secrease, at p. 264.)

This court has decided to follow the line of authority holding that a special circumstance finding precludes relief as a matter of law. (People v. Simmons (2021) 65 Cal.App.5th 739, 748–749, review granted Sept. 1, 2021, S270048.) We agree. Banks and Clark did not state a new rule of law. Rather, they relied on the United States Supreme Court’s decisions in Enmund v. Florida (1982) 458 U.S. 782 and Tison v. Arizona (1987) 481 U.S. 137 to clarify principles that had long been in existence at the time petitioner was convicted. (See In re Miller (2017) 14 Cal.App.5th 960, 978; accord, People v. Allison, supra, 55 Cal.App.5th at p. 458; Gomez, supra, 52 Cal.App.5th at p. 13, fn. 5, review granted.) Enmund prohibited felony-murder liability for a defendant that “did not commit the homicide, was not present when the killing took place, and did not participate in a plot or scheme to murder,” and explained that, to be liable for felony murder, the aider and abettor must himself “kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” (Enmund, at pp. 795, 797.) Tison held that, “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” (Tison, at pp. 151, 158.) As Banks noted, this language from Tison was later codified by the California electorate in section 190.2, subdivision (d). (Banks, supra, 61 Cal.4th at p. 800.) To the extent Banks and Clark illuminated factors a fact finder might consider in determining whether a defendant was a major contributor who acted with reckless indifference to human life, they drew those factors from Enmund and Tison. (See Banks, at pp. 801, 803; see also Clark, supra, 63 Cal.4th at pp. 615, 618–623.) These principles existed when petitioner was convicted and, absent a determination on direct appeal or in habeas that the evidence was insufficient to support the jury’s finding, there is no basis to conclude petitioner’s jury applied different standards than those described in Banks and Clark.

DISPOSITION

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

* Before Poochigian, Acting P. J., Franson, J. and Smith, J.

[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] The jury found true additional enhancements, as described below.

[3] Section 1171.1, subdivision (a) states, “[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense … is legally invalid.” Petitioner has not raised the applicability of this provision to his sentence in the trial court, and we will not address this issue in the opinion. However, petitioner retains any remedies to address this in the future.

[4] We previously granted petitioner’s “APPLICATION TO INCORPORATE BY REFERENCE PURSUANT TO RULE 8.147” the prior record in Guzman, supra, F048683. (People v. Guzman (Sept. 14, 2020, F081436) [nonpub. order].) We provide these facts from the record for background purposes because they were cited by both parties in their briefs. However, we do not rely on these facts in resolving the issues presented in this appeal. (See § 1170.95, subd. (d)(3).)

[5] Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names. No disrespect is intended.

[6] The district attorney dismissed this special circumstance immediately prior to jury deliberations.

[7] Petitioner and Hernandez were tried together and both were convicted of first degree murder and additional allegations. Perez was tried separately and was convicted of first degree murder, two special circumstances, plus firearm and gang allegations. (Guzman, supra, F048683.) Both Hernandez and Perez were the subjects of separate appeals. (People v. Hernandez (Oct. 27, 2006, F049209) [nonpub. opn.]; People v. Perez (Sept. 20, 2006, F048495) [nonpub. opn.].) Holt testified as an accomplice in both trials. (Guzman, supra, F048683; Hernandez, supra, F049209; Perez, supra, F048495.)

[8] Additionally, section 189 was amended to allow for felony-murder liability where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57 Cal.App.5th 666, 672.)

[9] Petitioner points out that the People conceded at trial that he was not the actual killer and the evidence did not support a finding he acted with intent to kill. Thus, the only basis for the jury’s special circumstance finding was a finding that he was a major participant in the felony who acted with reckless indifference to human life.