Filed 12/13/22 In re Contreras CA5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

In re 

RUBEN CONTRERAS

On Habeas Corpus.

F078975

(Super. Ct. VHC376176)

THE COURT*

APPEAL from the judgment of the Superior Court of Tulare County. Nathan D. 

Ide, Judge.

Rebecca P. Jones, under appointment by the Court of Appeal, for Petitioner.

Xavier Becerra and Rob Bonta, Attorneys General, Michael P. Farrell, Assistant 

Attorney General, Eric L. Christoffersen, Louis M. Vasquez, Lewis A. Martinez, and 

Amanda D. Cary, Deputy Attorneys General, for Respondent.

-ooOoo-

* Before Hill, P. J., Detjen, J. and Peña, J.
2.

INTRODUCTION

Petitioner Ruben Contreras petitioned the superior court, pursuant to former 

section 1170.95 (now § 1172.6) of the Penal Code,1for resentencing on his conviction 

for first degree murder (§ 187). The superior court denied the petition at the prima facie 

stage, without appointing counsel, on the grounds that petitioner was a major participant 

in the underlying felony who acted with reckless indifference to human life and, 

additionally, this court previously determined the trial evidence supported a finding that 

petitioner intended to kill the victim. 

On appeal, petitioner argues the superior court erred in failing to appoint counsel 

and permit adequate briefing, in basing its ruling on the appellate opinion, and ultimately 

1 Undesignated statutory references are to the Penal Code. Former section 

1170.95 recently was renumbered section 1172.6, with no change in text. (Stats. 2022, 

ch. 58, § 10.) We will refer to the current section 1172.6 in this opinion.

Petitioner filed his resentencing petition on a form petition for writ of habeas 

corpus, but made clear he was seeking relief pursuant to the procedure outlined in section 

1172.6. The court addressed the resentencing petition pursuant to section 1172.6, but 

continued to caption the petition as one for a writ of habeas corpus and denied it as such. 

In his notice of appeal, petitioner stated he was appealing from “Denial of Petition to 

Vacate Conviction & Sentence (Cal.PC § 1170.95).” 

In a noncapital case, a habeas petitioner cannot appeal from an order denying 

relief, but rather must file a new petition in a higher court. (§ 1506; In re Reed (1983) 33 

Cal.3d 914, 918, fn. 2, overruled on another ground in In re Alva (2004) 33 Cal.4th 254, 

264; In re Hochberg (1970) 2 Cal.3d 870, 875, disapproved on another ground in In re 

Fields (1990) 51 Cal.3d 1063, 1070, fn. 3; cf. § 1509.1; Briggs v. Brown (2017) 3 Cal.5th 

808, 825.) However, an order granting or denying relief pursuant to section 1172.6 is 

appealable, pursuant to section 1237, subdivision (b), as an order after judgment affecting 

a party’s substantial rights. (See People v. Heard (2022) 83 Cal.App.5th 608, 622, 

fn. 12.)

Regardless of how the matter is titled, petitioner’s claims are reviewable by us on 

the merits. The People do not contend otherwise and have elected to brief the matter as 

though it were an appeal from the denial of a petition brought under section 1172.6. 

However, because the instant appeal is from an order styled as an order denying a petition 

for writ of habeas corpus, we maintain the single title format applicable to habeas corpus 

proceedings. (Cal. Style Manual (4th ed. 2000) § 6:32.)
3.

in denying the petition at the prima facie stage. He contends the jury’s true finding on a 

robbery-murder special circumstance, which required the jury to find he was a major 

participant in the underlying felony and acted with reckless indifference to human life 

(§ 190.2, subds. (a)(17), (d)), does not preclude relief because it was made prior to our 

Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People 

v. Clark (2016) 63 Cal.4th 522 (Clark). He further contends this court’s determination 

that the evidence supported a finding he had the intent to kill is not dispositive of his 

petition. 

In our original opinion we held the jury’s special circumstance findings rendered 

petitioner ineligible for resentencing as a matter of law. Accordingly, we held any error 

in failing to appoint counsel or otherwise follow the procedures set out in former section 

1170.95, subdivision (c) was harmless. We therefore affirmed the superior court’s denial 

of the petition. (In re Contreras (June 16, 2021, F078975) [nonpub. opn.].) 

Petitioner petitioned the California Supreme Court for review (S270036). The 

state high court granted review and ultimately transferred the matter to us with directions 

to vacate our opinion and reconsider the cause in light of People v. Strong (2022) 13 

Cal.5th 698 (Strong). Pursuant to the California Supreme Court’s order, we vacated our 

prior opinion. We also advised the parties of our intention to reverse and remand this 

matter with directions to issue an order to show cause, in light of the holding in Strong. 

The People filed a letter stating they had no objections to the proposed disposition. 

Petitioner filed no objections and the time for doing so has passed.

In light of Strong, we will reverse the superior court’s order denying the petitions 

and remand with directions for the court to appoint counsel to represent petitioner and to 

issue an order to show cause.

FACTUAL AND PROCEDURAL HISTORY

“After a jury trial, [petitioner] was convicted of first degree murder 

(Pen. Code, []§ 187, subd. (a)), residential robbery (§ 211), and residential 
4.

burglary (§ 459). The jury found true the special circumstance allegations 

that the murder was committed during the commission of a burglary and 

robbery (§ 190.2, subd. (a)(17)), but found not true the personal arming 

allegation (§ 12022, subd. (b)(1)). The trial court sentenced [petitioner] to 

a six-year term on the residential robbery conviction and a consecutive 

indeterminate term of life without the possibility of parole on the murder 

conviction. A four-year term on the residential burglary conviction was 

imposed and stayed, as was a $2,000 restitution fine imposed pursuant to 

section 1202.45.” (People v. Contreras (Apr. 21, 2006, F047366) [nonpub. 

opn.] fn. omitted (Contreras).)2 

A. Factual Background

In petitioner’s direct appeal, we summarized the evidence leading to these 

convictions as follows:

“On June 17, 2001, [petitioner], Carlos E., Jesse L., and Elena 

Rodriguez went to visit Kelly Hiser and April Crone at the Lindsay Motor 

Lodge, where they lived. Rodriguez testified that, while the group drank 

beer behind Hiser’s carport, Michael Loveland, a mentally challenged man 

who also lived at the motel, was collecting cans and bottles nearby from the 

motel trash bins. Rodriguez bought cigarettes from Loveland, who 

mentioned that he had marijuana.

“Rodriguez testified that, when Loveland left the carport, [petitioner] 

said to the group, ‘Well, let’s fuck him up. Let’s fuck him up.’ Rodriguez 

described the statement as having been made in a joking manner. Crone 

left soon after. About one half hour later, [petitioner] and Carlos left to use 

the restroom, leaving Rodriguez and Jesse in the carport. Jesse remained 

for several minutes and left. Rodriguez walked to the front of the motel 

and talked with Hiser.

“Rodriguez then decided to leave the motel because Carlos, her 

boyfriend, had left her in the carport. As she walked away, she came across 

[petitioner], Carlos, and Jesse near some train tracks behind the motel. 

[Petitioner] was carrying his shirt, and, at trial, Rodriguez described him as 

‘kind of quiet’ and ‘[k]ind of nervous.’ [Petitioner] told the group, 

2 We take judicial notice of our prior opinion in petitioner’s direct appeal, which 

was relied on by the trial court and is discussed at length by the parties. (Evid. Code, 

§§ 452, subd. (a), 459, subd. (a).) However, our holding does not rely on the facts 

summarized in our prior opinion. (See § 1172.6, subd. (d)(3).) 
5.

‘Whatever happens, whoever goes down goes down alone.’ Rodriguez and 

Carlos then parted company with [petitioner] and Jesse.

“The following day, June 18, [petitioner] went again to the motel to 

visit Hiser and Crone. Crone testified that she overheard [petitioner] tell 

Hiser there was ‘something wrong’ with Loveland and that Loveland would 

not be coming out of his room. [Petitioner] told Hiser that he had ‘cleaned 

up the whole mess and not to say anything’ to the police about his presence 

at the motel. Hiser testified that [petitioner] told her he thought there was 

something wrong with ‘the man in room 14,’ and offered her $50 to keep 

quiet about his presence at the motel. [Petitioner] then pointed his finger at 

her as if he were ‘firing a gun’ at her.

“On June 19, [petitioner] returned to the motel to visit another 

friend, Phillip Hernandez. [Petitioner] asked Hernandez if he had seen 

Loveland around the motel. When Hernandez asked [petitioner] why he 

was asking, [petitioner] stated, ‘Oh, no reason.’ [Petitioner] then told 

Hernandez that Loveland had been stabbed and that [petitioner] believed 

Loveland was dead, adding, ‘I’m in a whole lot of trouble.’

“On June 20, Loveland’s mother found his body in his motel room. 

His VCR, telephone, and jewelry were missing from the room.

“Officers responding to the scene found a large amount of apparent 

blood spatter around the room. A hammer head was found on the corner of 

the bed; the hammer handle was located between the dresser and the bed. 

Shoe tracks were discovered on the stove top under the kitchen window, 

which led to the back of the motel. Carlos’s fingerprints were found on a 

beer bottle in the room.

“Loveland’s body was severely beaten. He suffered three blows to 

the back of his head and was stabbed four times in the torso. An autopsy 

determined that he died from severe blunt force trauma to his head.

“Sergeant Kevin Cotton interviewed [petitioner] about Loveland’s 

homicide on the same day the body was discovered. [Petitioner] gave 

Sergeant Cotton two separate statements. In the first, [petitioner] alleged 

he met up with ‘Jose’ and ‘Tony’ at the motel on June 17, but knew nothing 

about the murder.

“In his second statement, [petitioner] changed his story and stated he 

had been at the motel with Carlos, Jesse, and Rodriguez on the night of the 

murder, drinking beer. [Petitioner] admitted getting some cigarettes from 

Loveland, who had told the group he had marijuana in his room. 
6.

[Petitioner] told Sergeant Cotton that, when Loveland left, he and Carlos 

discussed robbing Loveland for his money and drugs by going into his 

room to ‘knock him out and take his stuff.’ According to [petitioner], once 

in Loveland’s room, Loveland offered him marijuana and, as he reached for 

the pipe, Carlos hit Loveland on the top of the head with a hammer. The 

hammer broke on impact, at which point Carlos got a baseball bat and 

proceeded to hit Loveland another five or six times. [Petitioner] watched as 

Carlos beat Loveland. After Carlos beat Loveland, Jesse walked into the 

room. Jesse then hit Loveland several times in the torso area where 

Loveland’s stab wounds were found.

“[Petitioner], Carlos, and Jesse then ransacked Loveland’s motel 

room and took the bat, VCR, and marijuana bong. They secured the front 

door with the security chain and climbed out the kitchen window to the 

back of the motel. [Petitioner] told Sergeant Cotton he felt Loveland’s 

neck for a pulse, but was unable to locate one.

“[Petitioner] admitted to Sergeant Cotton that he had offered Hiser 

$50 to ‘[k]eep her mouth shut,’ stating he was motivated by ‘greed’ 

because he wanted Loveland’s marijuana. [Petitioner] also admitted 

speaking to Hernandez and telling him of the assault.

“Defense

“At trial, [petitioner’s] defense was that he did not actually agree to 

rob Loveland, and was thus not guilty of the felonies underlying the felony 

murder charge. Instead, [petitioner] testified that he believed Carlos was 

joking when he asked him if he wanted to rob Loveland for his marijuana, 

and he jokingly agreed. One half hour later, the two went to Loveland’s 

motel room to use the restroom. Before entering, Carlos again asked him if 

he wanted to rob Loveland. When [petitioner] declined, Carlos grabbed 

him by the shirt collar and told him, ‘ “You’re going to help me take his 

shit or I’m going to fuck you up.” ’ Carlos ‘more or less’ pushed 

[petitioner] through the front door of Loveland’s room.

“[Petitioner] testified that, once in the room, he used the restroom. 

When he came out, [petitioner] smoked the pipe offered him by Loveland. 

While [petitioner] was smoking, Carlos got up from his chair and hit 

Loveland on the top of the head with a hammer. The hammer broke, so 

Carlos got a baseball bat and continued to hit Loveland about five times on 

the head. [Petitioner] was ‘shocked’ and ‘stunned,’ but did not do anything 

during the attack. Afterwards, Carlos ransacked Loveland’s room and took 

some of his belongings.
7.

“Jesse then walked into the motel room and punched Loveland 

several times in the torso. [Petitioner] did not say anything while Jesse 

punched Loveland. [Petitioner] tried to find a pulse on Loveland’s neck, 

but couldn’t. The three climbed out the kitchen window. Carlos was 

carrying a bat and either Jesse or Carlos had Loveland’s VCR.

“[Petitioner] testified that he did not call the police because he did 

not want to be labeled a ‘rat.’ [Petitioner] denied taking any of Loveland’s 

property. He acknowledged lying to Sergeant Cotton when he was first 

questioned because he did not ‘want to be a rat at first.’ [Petitioner] 

testified that he did not know Carlos was going to beat Loveland with the 

hammer and bat, and he hoped Carlos was not actually going to rob

Loveland.

“On cross-examination, [petitioner] acknowledged that he told 

investigating officers a number of times that he went into Loveland’s motel 

room with the intent to rob him, but claimed to have said this ‘so they 

wouldn’t think [he] was lying.’ [Petitioner] did not tell Sergeant Cotton 

that Carlos had threatened him before they went into Loveland’s room, 

claiming he did not want to get into ‘more trouble.’ He acknowledged 

telling Sergeant Cotton that he had ransacked Loveland’s room but, at trial, 

testified that he did not actually do so. He also agreed with Sergeant 

Cotton’s suggestion that he had been looking for ‘weed or money’ in 

Loveland’s room. At trial, [petitioner] responded that he had agreed 

because ‘[t]hat’s what you look for in a robbery.’

“Dr. Madeline Daniels, a forensic psychologist, interviewed 

[petitioner] in jail and conducted numerous tests on him. She determined 

that [petitioner] was learning impaired, he had attention deficit 

hyperactivity disorder, and he had a dependent personality disorder. He 

also suffered from an anxiety disorder, methamphetamine abuse, and 

possible posttraumatic stress disorder. Dr. Daniels testified that 

[petitioner’s] involvement in the crimes was consistent with his personality 

disorder, but she could not discern whether his involvement was because he 

was afraid of Carlos or because he did not want to appear weak to his 

friends.

“On cross-examination, Dr. Daniels acknowledged that [petitioner] 

had no indications of obsession, compulsion, phobias, delusions or 

hallucinations, and his IQ was in the average range.” (Contreras, supra,

F047366.) 
8.

B. Direct Appeal

In his direct appeal, petitioner argued the court erred in failing to give a duress 

instruction (CALJIC No. 4.40), failing to give an introductory instruction regarding the 

special circumstance (CALJIC No. 8.80.1), declining to stay the sentence on his robbery 

conviction (§ 654), and imposing a parole revocation fine (§ 1202.45). (Contreras,

supra, F047366.) This court agreed the parole revocation fine was inapplicable and 

ordered the abstract of judgment amended to remove the fine, but otherwise affirmed. 

(Ibid.) 

Relevant here, this court concluded petitioner was not prejudiced by the court’s 

failure to give CALJIC No. 8.80.1, “which defines (1) the mental state required for a 

felony-murder special circumstance when the defendant is not the actual killer; (2) the 

prosecution’s burden of proof as to the special circumstance; and (3) the requirement that 

the jury agree unanimously as to whether the special circumstance is true or untrue.” 

(Contreras, supra, F047366.) We stated as follows: “Because it can be inferred from the 

jury’s finding on the personal use allegation that the jury believed [petitioner] was not the 

actual killer, we next look to see if the evidence demonstrates that [petitioner] had either 

(1) an ‘intent to kill’ or (2) aided and abetted the robbery as a ‘major participant’ and 

acted with ‘reckless indifference to human life,’ as required under the special 

circumstance finding. (§ 190.2, subds. (c), (d).)” (Ibid.) We then stated, “[W]e find that 

no reasonable jury, properly instructed, would have failed to find [petitioner] acted with 

reckless indifference to human life and was a major participant in the robbery.” (Ibid.) 

After summarizing the evidence relevant to that conclusion, we explained, “[Petitioner’s] 

statements to Sergeant Cotton and his own testimony at trial show that, even if he was not 

the actual killer, and even if his intent to kill was not resolved under other properly given 

instructions, he was a major participant in the robbery and burglary and his actions 

demonstrated a reckless indifference to human life.” (Ibid.)
9.

With regard to petitioner’s claim that his sentence for robbery should have been 

stayed pursuant to section 654, this court stated, “[W]e disagree with [petitioner] that no 

substantial evidence sustains the court’s implicit determination that he held more than 

one objective when he committed the crimes against Loveland. Rather, the evidence 

supports a finding of separate intents to both kill and rob Loveland.” (Contreras, supra,

F047366.) We further noted, “While the jury did not find [petitioner] personally used the 

bat, hammer or knife, the court was free to determine that [petitioner], as an aider and 

abettor, had the same intent to kill Loveland.” (Ibid.) 

C. Petition for Resentencing

On February 7, 2019, petitioner filed a petition for writ of habeas corpus, seeking 

resentencing pursuant to section 1172.6. In the form petition, petitioner stated that a 

complaint, information, or indictment was filed against him that allowed him to be 

prosecuted under a theory of felony murder; he was convicted of first degree murder at 

trial; and he could not be convicted of first or second degree murder because of changes 

to section 188 or 189. He requested counsel be appointed to represent him. 

On February 20, 2019, the court summarily denied the petition as follows:

“In order to be eligible for relief under [section 1172.6], Petitioner 

must satisfy all three preliminary conditions under [section 1172.6, 

subdivision (a)]. The third condition, [section 1172.6, subdivision (a)(3)], 

requires that the petitioner could not be convicted of first or second degree 

murder because of changes to Section 188, or 189. Petitioner does not 

satisfy this third requirement, because he could have been convicted under 

revised [section] 189(e)(3). That section states, for the felonies listed in 

[section] 189(a) (first degree eligible crimes), Petitioner would be liable for 

murder if 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. In the present case, not only could Petitioner have 

been convicted under [section] 189(e)(3) based upon the facts of this case, 

the Fifth District Court of Appeal has already affirmatively found Petitioner 

was a major participant in the underlying crime, and acted with reckless 

indifference to human life. As stated by the Court of Appeal, ‘Because it 

can be inferred from the jury’s finding on the personal use allegation that 
10.

the jury believed [petitioner] was not the actual killer, we next look to see if 

the evidence demonstrates that [petitioner] had either (1) an “intent to kill” 

or (2) aided and abetted the robbery as a “major participant” and acted with 

“reckless indifference to human life,” as required under the special 

circumstances finding.’ [Citation.]

“In addressing these two issue[s], the Fifth District Court of Appeal 

stated, ‘Similarly here, we find that no reasonable jury, proper[l]y 

instructed, would have failed to find [petitioner] acted with reckless 

indifference to human life and was a major participant in the robbery.’ 

[Citation.] ‘[Petitioner]’s statements to Sergeant Cotton and his own 

testimony at trial show that, . . . he was a major participant in the robbery 

and burglary and his actions demonstrated a reckless indifference to human 

life. In sum, we find the instructional error harmless in this case.’ 

[Citation.]

“As to the intent to kill factor, the Fifth District has already found 

that Petition[er] had the requisite intent to kill under the murder statutes. 

‘Rather, the evidence supports a finding of separate intents to both kill and 

rob Loveland.’ [Citation.]

“Because the Fifth District Court of Appeal has already made 

findings in Petitioner’s case, Petitioner is not eligible for relief because 

Petitioner harbored the intent to kill by aiding and abetting the actual killer 

in the commission of the murder, and was a major participant in the 

underlying felony who acted with reckless indifference to human life. 

Petitioner has failed to make a prima facie showing that he is entitled to 

relief.

“Petitioner’s Writ of Habeas Corpus is therefore denied as a matter 

of law.” 

This timely appeal followed. 

DISCUSSION

I. Applicable Law 

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 

Reg. Sess.) “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, 
11.

ch. 1015, § 1, subd. (f); see § 189, subd. (e); accord, Strong, supra, 13 Cal.5th at pp. 707-

708.) Senate Bill No. 1437 also added former section 1170.95, now renumbered as 

section 1172.6, which provides a procedure for persons convicted of felony murder to 

seek vacatur of the conviction and resentencing. (§ 1172.6, subd. (a); accord, Strong, at 

p. 708.) 

Under section 1172.6, an offender seeking resentencing must first file a petition in 

the sentencing court, and the sentencing court must determine whether the petitioner has 

made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subds. (a)-(c); 

accord, Strong, supra, 13 Cal.5th at p. 708.) If the sentencing court determines the 

petitioner has made such a showing, the court must issue an order to show cause and hold 

a hearing to determine whether to vacate the murder conviction. (§ 1172.6, subds. (c), 

(d)(1).) At this evidentiary hearing, “the burden of proof shall be on the prosecution to 

prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under 

California law as amended by the changes to Section 188 or 189 made effective 

January 1, 2019.” (§ 1172.6, subd. (d)(3).) 

To demonstrate prejudice from the denial of a section 1172.6 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. (People v. Lewis (2021) 11 Cal.5th 952, 972-974 (Lewis); see 

People v. Watson (1956) 46 Cal.2d 818, 836.)

II. Appointment of Counsel

Petitioner contends the trial court erred by summarily denying his facially 

sufficient petition without appointing counsel and permitting further briefing. 

At the time the trial court ruled on the petition, our Supreme Court had not 

resolved whether section 1172.6 requires the appointment of counsel or further briefing 

immediately upon the filing of a facially sufficient petition. (See Lewis, supra, 11 

Cal.5th at pp. 961-967.) However, our Supreme Court and Legislature have since 
12.

clarified that counsel must be appointed if requested, and briefing must proceed, so long 

as the petition complies with the requirements of section 1172.6, subdivision (b)(1) and

(2). (§ 1172.6, subd. (b)(3); accord, Lewis, at pp. 962-963, 967.) Here, the People do not 

suggest the petition failed to meet the requirements of section 1172.6, subdivision (b). 

Accordingly, appointment of counsel and a full opportunity for briefing were required by 

section 1172.6, subdivisions (b)(3) and (c).3 (See Lewis, supra, 11 Cal.5th at pp. 961-

963, 967.) The court erred in disposing of the petition without following these 

procedures. 

III. Prejudice

Because the trial court erred in failing to appoint counsel or permit further 

briefing, we may affirm only if petitioner was not prejudiced by the error. (Lewis, supra, 

11 Cal.5th at pp. 972-974.) Because the record does not establish petitioner is ineligible 

for resentencing as a matter of law, we cannot conclude the court’s error in failing to 

appoint counsel was harmless. 

While this appeal was pending, our Supreme Court issued its opinion in Strong, 

supra, 13 Cal.5th 698. Therein, the high court held that a special circumstance finding 

entered pursuant to section 190.2, subdivision (a)(17) prior to the court’s decisions in 

Clark, supra, 63 Cal.4th 522 and Banks, supra, 61 Cal.4th 788 did not preclude a section 

1172.6 petitioner from making a prima facie showing of eligibility for relief.4 (Strong, at 

p. 703.) In light of Strong, the special circumstance findings in the instant case are not 

preclusive on prima facie review of the petition under section 1172.6. (Strong, at p. 703.) 

3 We reject petitioner’s argument that the denial of counsel violated his 

constitutional rights. Our Supreme Court has determined the failure to appoint counsel in 

a section 1172.6 proceeding is error under state statutory law only. (Lewis, supra, 11 

Cal.5th at pp. 972-973.)

4 Banks and Clark “substantially clarified the law” regarding “what it means to be 

a major participant and . . . to act with reckless indifference to human life.” (Strong, 

supra, 13 Cal.5th at pp. 706-707.)
13.

The People have also argued our opinion in petitioner’s direct appeal establishes 

petitioner is ineligible for relief. Specifically, the People contend our discussion of the 

evidence in support of the special circumstance finding establishes petitioner was a major 

participant who acted with reckless indifference to human life. The People also rely on 

our prior determination that substantial evidence supported a finding defendant acted 

with intent to kill as support for a determination that petitioner acted with reckless 

indifference to human life. However, a petition may not be denied simply because 

substantial evidence supports a conclusion the petitioner was convicted under a valid 

theory. (See § 1172.6, subd. (d)(3); Lewis, supra, 11 Cal.5th at p. 966 [prima facie 

determination is a question of law].) Accordingly, our prior discussion of this evidence 

does not establish petitioner is ineligible for resentencing as a matter of law.

In sum, the petition was facially sufficient and alleged the essential facts necessary 

for relief under section 1172.6. Because the People have presented no other basis to deny 

the petition at the prima facie stage, the order denying the petition must be reversed and 

the matter remanded with directions to appoint counsel, issue an order to show cause and, 

to the extent necessary, conduct an evidentiary hearing under subdivision (d) of section 

1172.6. We express no opinion on the ultimate resolution of the petition.

DISPOSITION

The February 20, 2019 order denying the petition is reversed and the matter 

remanded with directions to appoint counsel, issue an order to show cause and, to the 

extent necessary, hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).