Filed 11/19/21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

EDGAR ALEJANDRO FARFAN

,
Defendant and Appellant. B309786

(Los Angeles County Super. Ct. No. TA136699 )

APPEAL from an order of the Superior Court of Los Angeles County. Michael J. Shultz

, Judge. Affirmed

. Edward H. Schulman , under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta

, Attorne y General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Rene Judkiewicz

, Deputy Attorneys General , for Plaintiff and Respondent.

_________________________________2 Edgar Alejand ro Farfan appeals the summary denial of a petition for resentencing under Penal Code 1 section 1170.95. Appellant was convicted in 2016 of the first degree murder of Kamell Heno (§ 187, subd. (a); count 1), kidnapping to commit another crime (§ 209, subd. (b)(1); count 2), and robbery (§ 211; count 3). The jury found true the special circumstance allegation that the murder was committed while appellant was engaged in the commission of a robbery . (§ 190.2, subd. (a)(17).) The trial

court sentenced appellant to life without the possibility of parole on count 1, plus five years for the robbery conviction. ( People v. Farfan ( Feb. 8, 2018, mod

. Mar. 2, 2019, B277516) [nonpub. opn.] ( Farfan I

).) T h is court affirmed the judgment on appeal. ( Ibid .) In January 2019, appellant filed a petition for recall and resentencing under section 1170.95 (the “2019 petition”)

. Without appointing counsel, the superior court summarily denied the petition on Januar y 28, 2019, on the grounds that the jury was not instructed on the natural and probable consequences doctrine and the jury’s true finding on the special circumstance allegation preclude s relief under section 1170.95 as a matter of
law. On May 17, 2019, th e superior court modified its January 28, 2019 memorandum of decision with a summary of this court’s analysis and rejection of petitioner’s substantial evidence challenge to the special circumstance finding under People v.
Banks (2015) 61 Cal.4th 788 ( Bank s ) and People v. Clark (2016)
63 Cal.4th 522 ( Clark )

. Appellant did not appeal the superior court’s order, but filed a second petition for section 1170.95 relief on September 16,
2020 (the “20 20 petition”) . On September 29, 2020, appellant

1 Undesignated statutory references are to the Penal Code.3

filed a motion for reconsideration of the denial of his 2019 petition. T he superior court denied both the motion for
reconsideration and the 2020 petition on October 19, 2020, and appellant appealed. As a preliminary matter, we reject respondent ’s contention
that the second 1170.95 petition from which this appeal arises is procedurally barred as a successive petition. In the 2020 petition , appellant cited new legal authority which undermined
the basis for the superior court’s denial of the 2019 petition

. Neither the express language of s ection 1170.95 nor the stated

purpos e of the legislation supports limiting access to relief under section 1170.95 as advocated by respondent where, as here, the subsequent petition rested on new legal authority which challenged the basis for the superior court’s summary denial of the previou s petition

. Turning to the merits of the appeal, we conclude that
because a ppellant filed a facially sufficient section 1170.95 petition, the superior court erred in denying the petition without first appointing counsel

. ( S ee People v. Lewis (2021) 11 Cal.5th 952, 967, 970 ( Lewis )

. ) T he error

, however, was harmless

. ( Id . at

pp. 970

– 972, 974

– 975.) In finding the felony

- murder special circumstance true, the jury necessarily found appellant either
acted with intent to kill or was a major part icipant in the robbery
who acted with reckless indifference to human life. This finding establishes that appellant is ineligible for section 1170.95 relief
as a matter of law. ( People v. Simmons (2021) 65 Cal.App.5th 739, 746

– 747 , 749 , review granted Sep t. 1, 2021, S270048 ( Simmons ) .)4 FACTUAL BACKGROUND 2
Kamell Heno was employed as a delivery driver for Cartons to Go, a company that bought and sold cigarettes. On
December 4, 2014, Heno was scheduled to deliver cigarettes worth $217,000 to Cartons to Go in LaVerne. That morning, driving a large white box truck, Heno picked up the cigarettes
from Giant Wholesale in Sunland and Costco in Burbank, but he
never arrived in LaVer ne. Around 3:30 that afternoon, Heno’s truck was discovered parked on the 10200 block of South Grand Avenue in the city of Los Angeles. Only about 10 percent of the cigarettes Heno had
collected that morning remained in the truck’s cargo area. Heno
was f ound on the floor of the truck with a red stained cloth

cover ing his head

. H is face was wrapped in duct tape, which covered his eyes and mouth. He had two projectile head wounds from a BB gun in addition to multiple abrasions, lacerations

, and
bruises on his head, neck

, and upper extremities . Heno was pronounced dead at the scene . An autopsy indicated t he cause of
death to be asphyxiation. Prior to December 4, appellant, his brother Josue Farfan (Josue), and Josue’s wife

, Jennifer Medina, agreed to rob a delivery truck of its cargo of cigarettes. In accordance with the plan, on the morning of December 4, appellant drove Medina and Josue in his SUV to Cigar Cartel, where they parked and waited until the white box truck driven by Heno pulled out. Appella nt

2 The facts of the underlying offenses are summarized from

our unpublished opinion in the direct appeal , of which we have taken judicial notice . ( Farfan I

, supra , B277516 ; Evid. Code, §§ 451, 459 .)5

followed the truck as it picked up its cargo. When the truck left Costco, appellant followed it onto the freeway and hit Heno’s
truck with his SUV to force it to stop

. The truck pulled over, and Heno got out. Appellant exited
the SUV carrying a BB gun and shoved Heno into the passenger
side of the truck. Josue got into the truck and the brothers drove

away with Heno while Medina followed in the SUV. Eventually

, the truck exited the freeway, drove into a neighborhood and parked. App ellant, Josue

, and Medina filled the SUV with cigarettes from the truck and drove away, leaving Heno in the
cab of his truck.
DISCUSSION
I. Appellant’s Second Petition for Relief Under
Section 1170.95 Is Not Procedurally Barred as a
Successive Petition
R e spondent contends that the section 1170.95 petition appellant filed in 2020, which is the basis of this appeal

, is procedurally barred as a successive petition. We disagree. As California courts have grappled with the interpretation and application of sec tion 1170.95 ’s procedures for obtaining resentencing relief since the legislation took effect on January 1, 2019, various splits of authority have emerged on several issues. Among those issues are three presented in the instant appeal: (1) M ay the superior court consider the record of conviction in determining whether the petitioner has made a prima facie showing of eligibility for relief under section 1170.95,
subdivision (c)? (Yes.) (2) M ay the superior court summarily deny a facially sufficient petition for failure to make the prima facie showing without first appointing counsel? (No.) A nd (3) D oes a jury’s felony

- murder special circumstance finding6

under section 190.2, subdivision (a)(17) preclude a prima facie showing of eligibility under se ction 1170.95, subdivision (c)? The California Supreme Court has answered the first two questions
in Lewis

, supra , 11 Cal.5th at p ages 957, 967, 970, 972 , but the third issue remains pending before the Supreme Court in People v. Strong , review granted Mar ch 10, 2021, S266606 ( Strong ) [“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?”] (<https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScr een.cfm?dist=0&doc_id=2339000&doc_no=S266606&request_toke n=NiIwLSEmTkw6WyBRSCM9TEhIMFQ0UDxTJSM%2BXzpSU CAgCg%3D%3D> [as of May 26, 2021], archived at

< https://perma.cc/P8YS

- L3CV> .)
A ppellant’s 2019 petition was facially sufficient and thus triggered the requirement that a request for appointment of
counsel be honored before the superior court may consider the
record of conviction to determine whether the appellant made a prima facie showing of eligibility for relief. ( Lewis

, supra , 11 Cal.5th at p. 957.) Appellant’s subsequent petition was also facially sufficient and should also have prompte d the appointment of counsel. Furthermore, a ppellant’s 2020 petition cited three appellate decisions issued after the superior court’s summary denial of the 2019 petition: People v. York (2020) 54 Cal.App.5th 250, rev iew granted Nov. 18, 2020, S264954 ( Y ork ) ; People v. Smith (2020) 49 Cal.App.5th 85, rev iew granted Jul y 22, 2020, S262835 ( Smith ) ; and People v. Torres (2020) 46 Cal.App.5th 1168, rev iew granted June 24 , 2020, S262 0117

( Torres )

. Reflecting the still

- evolving state of 1170.95 jurisprudence , these cases h e ld , among other things, that a jury’s

pre

- Banks and Clark felony

- murder special circumstance finding does not, by itself, preclude a defendant from showing that he or
she could not now be convicted of first or second degree mur der as redefined by Senate Bill No. 1437. ( York , at pp. 260

– 261, rev.gr.;
Smith , at p. 93, rev.gr.; Torres , at p. 1179 , rev.gr. ; see also People
v. Gonzalez (2021) 65 Cal.App.5th 420, 431, rev iew granted Aug. 18, 2021, S269792 ( Gonzalez ) ; People v. Harris (2021) 60 Cal.App.5th 939, 956, rev iew granted Apr. 28, 2021 , S267802 ( Harris ) .)
R espondent assert s that “successive section 1170.95 petitions are generally barred by the doctrine of collateral estoppel

, ” b ut acknowledge s that section 1170.95 contai ns no express bar to successive petitions. I n our view, application of collateral estoppel to bar consideration of appellant’s 2020 petition would thwart Senate Bill No. 1437 ’s overall purpose of ensuring that “ a person ’ s sentence is commensurate with his or her individual criminal culpability ” ( see People v. Gentile (2020) 10 Cal.5th 830, 842

– 843 ( Gentile ) ; Lewis

, supra , 11 Cal.5th at

p. 971 ), and that “all those entitled to resentencing are able to obtain relief” ( Lewis , at p. 968)

. This is especially true in this

case , where the superior court never appointed counsel even though appellant filed two facially sufficient petitions. (See
Lewis , at p. 95 7 [“the statutory language and legislative intent of section 1170.95 make clear that petitioners are entitled to the appointment of counsel upon the filing of a facially sufficient petition”].)
A pplication of collateral estoppel is not automatic , but is

su bject to public policy considerations. ( Lucido v. Superior Court8

(1990) 51 Cal.3d 335, 342

– 343.) As our Supreme Court has explained

, “ [T] he public policies underlying collateral estoppel

— preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation

— strongly influence whether its application in a particular circumstance would be fair to the parties and constitutes sound judicial policy.” ( Id . at p. 343. ) In this case,
none of these public policy considerations favors application of collateral estoppel to bar appellant’s 2020 petition. (See Lewis

, supra , 11 Cal.5th at p. 967 [“Appointing counsel to assist a petitioner in navigating these complex theorie s, upon the filing of a facially sufficient petition, promotes the reliability of section 1170.95’s petitioning process and thereby advances Senate Bill 1437’s stated purpose”].)
R espondent also analogizes to the general rule in habeas corpus procedure tha t a “ court will not consider repeated applications for habeas corpus presenting claims previously rejected ” ( In re Clark (1993) 5 Cal.4th 750, 767 ) to argue that appellant’s petition is barred. But the general rule does not appl y in habeas proceedings when there has been a retroactive change in the law affecting the petitioner. ( In re Martinez (2017) 3 Cal.5th 1216, 1222 .) A s our Supreme Court explains, a change
is retroactive when it “ is substantive rather than procedural (i.e.

, it alters the range of conduct or the class of persons that the law punishes, or it modifies the elements of the offense) or when a judicial decision undertakes to vindicate the original meaning of
the statute. ” ( Ibid .) Under this standard, not only are the changes to the law effected by Senate Bill No. 1437 themselves retroactive, but judicial interpretations of section 1170.95 may afford a petitioner9

grounds for claiming eligibility for relief under the statute that were not previously available under other judicial interpretations. Here, b ecause appellant’s 2020 petition was based on new authority which challenged the primary ground for
the superior court’s summary denial of his 2019 petition

, the 2020 petition was not procedurally barred as a successive petition. ( See In re Clark

, supra , 5 Cal.4th at p. 767 [“ It has long
been the rule that absent a change in the applicable law or the facts, the court will not consider repeated applications for habeas

corpus pr esenting claims previously rejected

, ” italics added ]; In re
Richards (2016) 63 Cal.4th 291, 294, fn. 2 [“ Because of the change in the applicable law concerning the definition of false evidence, the petition is not subject to the procedural bar of
successiv eness ”] .)
I I

. Because the Jury Found the Robbery

- m urder Special Circumstance True, Appellant Is Ineligible for Relief Under Section 1170.95 as a
Matter of Law
A. Applicable legal principals The Legislature enacted Senate Bill No. 1437 to “amend 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);
Gentile

, supra , 10 Cal.5th at p. 842; People v. Martinez (2019) 31 Cal.App.5th 71 9, 723 ( Martinez ) .)
Prior to the enactment of Senate Bill No. 1437, “a defendant who intended to commit a specified felony could be10

convicted of murder for a killing during the felony, or attempted felony, without further examination of his or her mental s tate” under the felony

- murder rule. ( People v. Lamoureux (2019) 42 Cal.App.5th 241, 247

– 248; People v. Powell (2018) 5 Cal.5th 921, 942.) Similarly, under the natural and probable consequences doctrine, a defendant was “liable for murder if he or she aid ed and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable consequence of the target offense.” ( Lamoureux , at

p. 248 .) In order to ensure that a person’s sentence is commensurate with his or her criminal culpability ( Lewis

, supra , 11 Cal.5th at p. 971) , the Legislature substantively amended sections 188 and 189, and added section 1170.95 ( Gentile

, supra , 10 Cal.5th at pp. 842

– 843). Section 1170.95 affords persons previously convicted of murder under a felony murder or natural and probable consequences theory a procedure by which to seek resentencing if they could no longer be convicted under the law as

a mended. ( Lewis , at pp. 957, 959 ; Gentile , at p. 843; Martinez

, supra , 31 Cal.App.5th at pp. 722

– 723.)
Subdivision (a) of section 1170.95 sets forth the requirements for a facially sufficient petition. The petitioner must aver that (1) the charging docume nt “allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine”; (2) “petitioner was convicted of first or second degree murder”; and (3) “petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a); Lewis

, supra , 11 Cal.5th11

at pp. 959

– 960 .) “ Subdivision (b) in turn ‘ describes where and how the petition must be filed and specifies its required content, ’ including a declaration by the petitioner that he or she ‘ is eligible for relief according to the criteria set out in subdivision (a). ’ ” ( People v. Clayton (202 1 ) 66 Cal.App.5th 145
, 152 .) “If a petition fails to comply with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of another petition.’ (§ 1170.95, subd. (b)(2).)” ( Lewis , at p. 960 .)
When a petition for resentencing under section 1170.95 meets the requirements of subdivisions (a) a nd (b), the superior court “proceeds to subdivision (c) [ 3 ] to assess whether the petitioner has made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)” ( Lewis

, supra , 11 Cal.5th at p. 960 .) At this stage, the superior court must accept briefi ng from the parties before making its prima facie determination of eligibility. ( Id

. at

p p. 957, 971 .)
A fter the superior court ’ s summary denial of the 2020 petition in th is cas e , our Supreme Court resolved a split of authority in the appellate courts , ho lding that the petitioner is entitled to the appointment of counsel, if requested, upon the filing of a facially sufficient petition, that is, one that makes the necessary averments, without regard to his or her eligibility for relief. ( Lewis, supra , 11 Cal.5th at p. 957.) Lewis further held
that s ection 1170.95 contemplates one prima facie review, not

3 Section 1170.95, subdivision (c) provides in relevant part: “The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. .

. . If the petitioner makes a prima facie showing that he or she is entit led to relief, the court shall issue an order to show cause.”12

two, and does not permit summary denial of the petition based on a petitioner ’ s ineligibility prior to the appointment of counsel. ( Id. at pp. 957, 961

– 9 63.) Finally, o nly after the appointment of counsel and the opportunity for briefing may the superior court consider the record of conviction to determine whether the petitioner makes a prima facie showing that he or she is entitled to relief. ( Id. at p p

. 970

– 971 .) “The record of conviction will necessarily inform the trial court’s prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless.” ( Lewis

, supra , 11 Cal.5th a t p. 971 .) In reviewing any part of the record to make its preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved, the superior court does not engage in factfinding and must take p etitioner’s factual allegations as true. ( Id

. at pp. 971

– 972

. ) Lewis further
cautioned that although it is generally considered to be part of
the record of conviction

, “the probative value of an appellate opinion is case specific, and ‘it is certainly correct that an appellate opinion might not supply all answers.’ ” ( Id

. at p. 972
, quoting People v. Woodell (1998) 17 Cal.4th 448, 457.) Thus, o nly

“ ‘if the record, in cluding the court’s own documents, “contain[s] facts refuting the allegations made in the petition,” ’ ” is the superior court “ ‘ “

justified in making a credibility determination adverse to the petitioner.” ’ ” ( Lewis , at p. 971 .)13

B

. The superior court erred in failing to appoint counsel, but the error was harmless in light of the jury’s true finding on the robbery

- murder special circumstance allegation
A ppellant’s 2020 petition for resentencing met the requirements for facial sufficiency and he requested counsel.
Lewis therefore dictates our conclusion that the superior court erred in its summary denial of appellant’s petition without first appointing counsel and accept ing briefing from the parties. Nevertheless, we conclude the error was harmless. By adding subdivision (e ) to section 189, Senate Bill
No. 1437 made the crime of felony murder subject to the same elements of proof required for a special circumstance findin g under section 190.2, subdivision (d). 4 ( People v. Superior Court ( Ferraro ) (2020) 51 Cal.App.5th 896, 907 [“ ‘the standard under section 189, subdivision (e)(3) for holding a defendant liable for felony murder is [now] the same as the standard for find ing a special circumstance under section 190.2[, subdivision ](d), as the former provision expressly incorporates the latter’ ”]; In re Taylor (2019) 34 Cal.App.5th 543, 561.) Specifically, to be convicted of

4 Subdivision (d) of section 190.2 remains the same today as in 2016 when appellant was convicted: “[E] very person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of

mur der in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 19 0.4. ”14

first degree murder under section 189 as amend ed, a participant in one of the felonies enumerated in subdivision (a) must have been the actual killer, or a direct aider and abettor who acted with the intent to kill, or “a major participant in the underlying felony [who] acted with reckless indifferenc e to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e).) Here, appellant’s jury was instructed pursuant to CALCRIM No. 703 that if it found appellant was not the actual killer, it could not find the robbery

- murder special circumstance

true unless it was satisfied beyond a reasonable doubt that appellant intended to kill or he was a major participant in the crime, and , when he part icipated in the crime, he acted with reckless indifference to human life

. The jury was further instructed that “[a] person acts with reckless indifference to
human life when he or she know ingly engages in criminal activity
that he or she knows involve s a grave risk of death.”
In order to obtain relief from his or her felony murder conviction under section 1170.95, a petitioner must make a prima facie showing that he or she “ could not be convicted of first or second degree murder because of changes to Secti on 188 or 189” made by Senate Bill No. 1437. (§ 1170.95, subd. (a)(3), italics added; People v. A llison (2020) 55 Cal.App.5th 449, 457 ( A llison ); People v. N

unez ( 2020) 57 Cal.App.5th 78, 90 , rev iew granted
Jan. 13, 2021, S265918 ( N unez ) .) But t he jury’s special
circumstance finding in this case means it necessarily found beyond a reasonable doubt that appellant either had the intent to
kill or he was a major participant in the robbery who acted with reckless disregard for human life

. Accordingly, t he jury ’ s true finding on the special circumstance establishes appellant is ineligible for section 1170.95 relief as a matter of law. (See15

Allison

, supra , 55 Cal.App.5th at pp. 460

– 462; Simmons

, supra , 65 Cal.App.5th at pp. 747, 749, rev.gr .)
A s noted a bove, a ppellate courts are split on the question of
whether a pre

- Banks and Clark special circumstance finding makes a petitioner ineligible for section 1170.95 relief as a matter of law, and the issue is on review before our Supreme Court. (See Strong

, s upra , (S266606, rev

. g r.) .) While some courts have
concluded that such a finding does not, by itself, make a petitioner ineligible for relief (see

, e.g. , Gonzalez

, supra , 65 Cal.App.5th at p. 431, rev.gr.; Harris

, supra , 60 Cal.App.5th at

p. 956, rev.gr.; York

, supra , 54 Cal.App.5th at pp. 260

– 261,

rev.gr.; Smith

, supra , 49 Cal.App.5th at p. 93, rev.gr.; Torres

, supra , 46 Cal.App.5th at p. 1179, rev.gr.), the majority of courts
have held that a felony

- murder special circ umstance precludes section 1170.95 relief as a matter of law (see

, e.g. , Simmons

, supra , 65 Cal.App.5th at p p

. 747, 749
, rev.gr.; People v. Jones (2020) 56 Cal.App.5th 479, 478

– 479, rev iew granted Jan. 27, 2021, S265854 ; Nunez

, supra , 57 Cal.App.5th at p. 90, rev.gr.;
Allison

, supra , 55 Cal.App.5th at pp. 460

– 462; People v. Gomez (2020) 52 Cal.App.5th 1, 14

– 15 , 17 , rev iew granted Oct. 14, 2020, S264033; People v. Galvan (2020) 52 Cal.App.5th 1134, 1141,

rev iew granted Oct. 14, 2020, S264284; People v. Muril lo (2020) 54 Cal.App.5th 160, 168, rev iew granted Nov. 18, 2020, S264978).
T he conflict in these cases is not relevant to our conclusion that the felony

- murder special circumstance finding bars section
1170.95 relief in this case

, however

. T he issue resolved in all of these cases and pending before our Supreme Court in Strong is whether a special circumstance finding made before Banks and Clark precludes 1170.95 relief as
a matter of law. But here, the special circumstance finding was16

made a fter , not before Banks and Clark were decided. 5 Although appellant’s jury was not instructed with the Banks and Clark factors, we have observed that “ our Supreme Court has not required that juries be instructed on the clarifications, and in the
wake of B anks and Clark , no mandatory language or material changes were made to the CALCRIM special circumstance
instructions. ” ( Nunez

, supra , 57 Cal.App.5th at p. 92, rev.gr.; Allison, supra , 55 Cal.App.5th at p. 458; see CALCRIM No. 703 ( 2021 ed. )

. ) Instead, CALCRIM No. 703 now includes a list of the
Banks and Clark factors which may be given in the trial court’s
discretion

. ( Nunez , at p. 92 [ language drawn from Banks and
Clark regarding the factors a jury may consider is optional];
Allison , at pp. 458

– 459; People v. Price (2017) 8 Cal.App.5th 409,
450

– 451 [jury instructions that omit the Banks and Clark factors

are not defective ]; see Bench Notes to CALCRIM No. 703 (202 1
ed. ).) Thus, e ven though appellant’s jury was not instructed with
the Banks and Clark factors, this case falls outside the split of authority to be resolved by our Supreme Court in Strong

. T he jury’s robbery

- murder special circumstance finding constitutes a
valid findi ng beyond a reasonable doubt that appellant had the
intent to kill or was a major participant in the robbery who acted with reckless disregard for human life, and that finding makes appellant ineligible for relief under section 1170.95 as a matter of
law.

5 The jury returned its verdict on July 26, 2016, approximately one year after Banks, and one month after Clark came down.17 In Lewis , our Supreme Court held the deprivation of a petitioner’s right to counsel under subdivision (c) of section 1170.95 is state law error only, tested for prejudice under People
v. Watson (1956) 46 Cal.2d 818. ( Lewis, supra

, 11 Cal.5th at

pp. 957

– 95 8, 973 .) Lewis further held that any error in summarily denying a section 1170.95 petition may be harmless unless the petitioner can show “ ‘ “it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition woul d not have been summarily denied without an evidentiary hearing.” ’ ” ( Id. at p. 974 .)
Because the jury’s felony

- murder special circumstance finding precludes relief under section 1170.95 as a matter of law,

a ppellant cannot carry his burden of showing a reasonable probability that the outcome of the proceeding would have been any different had the superior court appointed counsel and
received briefing . W e therefore conclude that the superior court’s error in summarily denying the 2020 petition without first appoint ing counsel was harmless. ( Lewis, supra

, 11 Cal.5th at

p. 974.)
C

. Appellant is not entitled to relief under section
1170.95 based on the natural and probable consequences
instruc tions given in connection with the uncharged conspiracy to commit robbery Appellant contends the instructions given allowed the jury to convict appellant of first degree felony murder as an aider and
abettor under two alternative theories: “ traditional ” felony
murder and felony m urder based on appellant’s participation in an uncharged conspiracy to commit robbery. With regard to the latter theory, the jury was instructed that if death was a natural and probable consequence of the conspiracy’s target off ense of18

robbery, then any member of the conspiracy who intended that a member of the conspiracy commit the robbery could be convicted of first degree felony murder. (CALCRIM No s . 417 , 540B .) The general verdicts did not indicate whether the jury found

ap pellant to be the actual killer. Moreover, the verdicts did not specify the theory upon which the murder conviction was predicated

— “traditional” felony murder , or the prosecution’s alternate theory of an uncharged conspiracy to commit robbery

, which embra ced the doctrine of natural and probable

consequences. Thus, a ccording to appellant, there is no way to ascertain from the record which theory formed the basis for the jury’s first degree murder verdict

. And because the jury was
misdirected on an alterna te theory of first degree felony murder that incorporated the natural and probable consequences
doctrine

, appellant maintains that the matter must be reversed
and remanded for issuance of an order to show cause and an evidentiary hearing in accordance with section 1170.95, subdivisions (c) and (d). (See People v. DeHuff (2021) 63 Cal.App.5th 428, 442

– 443.) Appellant’s argument might have merit were it not for the jury’s true finding on the felony

- murder special circumstance in
this case. While it is true (contrary to the superior court’s
conclusion ) that appellant’s jury was instructed on an alternate uncharged conspiracy theory which incorporated natural and probable consequences principles

, the jury’s special circumstance finding demonstrates that appellant’s murder conviction was not predicated on any theory of derivative liability. Indeed, a s set forth above, viewing the jury’s true finding on the felon y

- murder special circumstance in ligh t of CALCRIM No. 703 establishes that the jury found , beyond a reasonable doubt, that if appellant19

was not the actual killer, he had the intent to kill or was a major participant in the robbery who acted with reckless disregard for
human life

. This findin g simply leaves no room for speculation that the jury might have relied on the alternate uncharged conspiracy theory and natural and probable consequences to convict appellant of murder.
T he superior court correctly determined that appellant is ineligible for section 1170.95 relief as a matter of law by virtue of the jury’s felony

- murder special circumstance finding. Accordingly, the superior court’s misreading of the record of conviction with respect to the natural and probable consequences
doctrine in de nying appellant’s petition is immaterial. ( People v. Hopson (2017) 3 Cal.5th 424, 459 [“ a ruling will not be disturbed on appeal merely because it was given for a wrong reason, if the ruling would otherwise be correct ‘ “ ‘ upon any theory of the law appli cable to the case, ’ ” ’ and ‘ “ ‘regardless of the considerations which may have moved the trial court to its conclusion ’ ” ’ ” ].)20 DISPOSITION The superior court’s order denying relief under Penal Code
section 1170.95 is affirmed.
CERTIFIED FOR PUBLICATION.

LUI, P. J.
We concur:

CHAVEZ

, J.

HOFFSTADT

, J.