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, Attorney 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 Alejandro Farfan appeals the summary denial of a 

petition for resentencing under Penal Code1 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).) This 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 January 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 precludes relief under section 1170.95 as a matter of 

law. On May 17, 2019, the 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 (Banks) 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 “2020 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. The 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 section 1170.95 nor the stated 

purpose 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 previous petition.

Turning to the merits of the appeal, we conclude that 

because appellant filed a facially sufficient section 1170.95 

petition, the superior court erred in denying the petition without 

first appointing counsel. (See People v. Lewis (2021) 11 Cal.5th 

952, 967, 970 (Lewis).) The 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 participant 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 Sept. 1, 2021, S270048

(Simmons).)
4

FACTUAL BACKGROUND2

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 LaVerne.

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 found on the floor of the truck with a red stained cloth 

covering his head. His 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 the 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. Appellant 

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. Appellant, 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

Respondent 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 section 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) May 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) May the superior court summarily 

deny a facially sufficient petition for failure to make the prima 

facie showing without first appointing counsel? (No.) And 

(3) Does a jury’s felony-murder special circumstance finding 
6

under section 190.2, subdivision (a)(17) preclude a prima facie 

showing of eligibility under section 1170.95, subdivision (c)? The 

California Supreme Court has answered the first two questions 

in Lewis, supra, 11 Cal.5th at pages 957, 967, 970, 972, but the 

third issue remains pending before the Supreme Court in People 

v. Strong, review granted March 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>.)

Appellant’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 prompted the 

appointment of counsel. Furthermore, appellant’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, review granted Nov. 18, 2020, S264954 (York);

People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22, 

2020, S262835 (Smith); and People v. Torres (2020) 46 

Cal.App.5th 1168, review granted June 24, 2020, S262011
7

(Torres). Reflecting the still-evolving state of 1170.95 

jurisprudence, these cases held, 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 murder 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, review granted 

Aug. 18, 2021, S269792 (Gonzalez); People v. Harris (2021) 60 

Cal.App.5th 939, 956, review granted Apr. 28, 2021, S267802

(Harris).)

Respondent asserts that “successive section 1170.95 

petitions are generally barred by the doctrine of collateral 

estoppel,” but acknowledges that section 1170.95 contains no 

express bar to successive petitions. In 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. 957 [“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”].)

Application of collateral estoppel is not automatic, but is 

subject to public policy considerations. (Lucido v. Superior Court
8

(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 theories, 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”].)

Respondent also analogizes to the general rule in habeas 

corpus procedure that 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 

apply 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.) As 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 petitioner 
9

grounds for claiming eligibility for relief under the statute that 

were not previously available under other judicial 

interpretations. Here, because 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 presenting 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 

successiveness”].)

II. Because the Jury Found the Robbery-murder 

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 719, 723 (Martinez).)

Prior to the enactment of Senate Bill No. 1437, “a 

defendant who intended to commit a specified felony could be 
10

convicted of murder for a killing during the felony, or attempted 

felony, without further examination of his or her mental state” 

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 aided 

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 

amended. (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 document “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.5th 
11

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 (2021) 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) and (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 briefing from the parties before 

making its prima facie determination of eligibility. (Id. at 

pp. 957, 971.)

After the superior court’s summary denial of the 2020 

petition in this case, our Supreme Court resolved a split of 

authority in the appellate courts, holding 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 section 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 entitled 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, 961–963.) Finally, only 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 pp. 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 at 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 petitioner’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, only 

“ ‘if the record, including 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

Appellant’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 accepting 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 finding 

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 finding 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 

murder 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 190.4.”
14

first degree murder under section 189 as amended, 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 indifference 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 participated 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 knowingly engages in criminal activity 

that he or she knows involves 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 Section 188 or 189” 

made by Senate Bill No. 1437. (§ 1170.95, subd. (a)(3), italics 

added; People v. Allison (2020) 55 Cal.App.5th 449, 457 (Allison);

People v. Nunez (2020) 57 Cal.App.5th 78, 90, review granted 

Jan. 13, 2021, S265918 (Nunez).) But the 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, the jury’s true 

finding on the special circumstance establishes appellant is 

ineligible for section 1170.95 relief as a matter of law. (See 
15

Allison, supra, 55 Cal.App.5th at pp. 460–462; Simmons, supra, 

65 Cal.App.5th at pp. 747, 749, rev.gr.)

As noted above, appellate 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, supra, (S266606, rev.gr.).) 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 circumstance precludes 

section 1170.95 relief as a matter of law (see, e.g., Simmons, 

supra, 65 Cal.App.5th at pp. 747, 749, rev.gr.; People v. Jones

(2020) 56 Cal.App.5th 479, 478–479, review 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, review granted Oct. 14, 2020, 

S264033; People v. Galvan (2020) 52 Cal.App.5th 1134, 1141, 

review granted Oct. 14, 2020, S264284; People v. Murillo (2020) 

54 Cal.App.5th 160, 168, review granted Nov. 18, 2020, S264978). 

The 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.

The 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 was 
16

made after, 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 Banks 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 (2021

ed.).)

Thus, even 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. The 

jury’s robbery-murder special circumstance finding constitutes a 

valid finding 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. 957–958, 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 would 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, 

appellant 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. We therefore conclude that the superior court’s 

error in summarily denying the 2020 petition without first 

appointing 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 

instructions 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 murder 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 offense of 
18

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 Nos. 417, 540B.) The 

general verdicts did not indicate whether the jury found 

appellant 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 embraced the doctrine of natural and probable 

consequences. Thus, according 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 alternate 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, as set 

forth above, viewing the jury’s true finding on the felony-murder 

special circumstance in light of CALCRIM No. 703 establishes 

that the jury found, beyond a reasonable doubt, that if appellant
19

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 finding 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.

The 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 denying 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 

applicable to the case,’ ” ’ and ‘ “ ‘regardless of the considerations 

which may have moved the trial court to its conclusion’ ” ’ ”].)
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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.