Filed 2/25/22 P. v. Ervin CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANK ERVIN et al.

,

Defendant s and Appellant s

. B 309740

(Los Angeles County Super. Ct. No. NA090280)

APPEAL from judgment s of the Superior Court of Los Angeles County. James D. Otto , Judge. Aff irmed

. Matthew Alger , under appointment by the C ourt of Appeal for Defendant and Appellant Frank Ervin.
Susan K. Shaler , under appointment by the Court of Appeal, for Defendant and Appellant Shawn Verrette.
Rob Bonta , Attorney General, Lance E. Winters , Chief Assistant Attorney General, Susan Sullivan Pithey , Assistant Attorney General, Amanda V. Lopez and David E. M adeo , Deputy Attorney s General, for Plaintiff and Respondent.

* * * * * * * * * *2 Defendants and appellants Frank Ervin and Shawn
Verret t e are each serving a life sentence without the po ssibility of parole for the special circumstance murder and robbery of
Frank lin R obles

. Defendants appeal from the orders denying their respective petitions for resentencing pursuant to Penal
Code section 1170.95.
We affirm.
FACT UAL AND PROCEDURAL BACK GROUND Ervin, Verrette and a third defendant

, Luis Orozco

, were charged with the 2010 special circumstance murder of Franklin
Roble s. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17) ;
count 1 .) The y were also charged with robbery (§ 211; count 2),

re sidential burglary (§ 459; count 3) and conspiracy to commit a
crime (§ 182 , subd. (a)(1) ; count 4 )

. Various firearm use and prior conviction allegations were also alleged. (Orozco is not a party to this appeal but filed his own , separate appeal from the denial of
his resentencing petition ( People v. Orozco (Feb. 24 , 2022,
B3069 16) [nonpub. opn.])

. )
The first joint trial of Ervin, Verrette and Orozco resulted in a mistrial due to jur or misconduct. The retrial proceeded in October 2015. During
delibe rations, the jury asked a question about how to proceed on the firearm use allegations if they were conflicted about whether
Ve r rette or Ervin was the shooter. After further deliberations,

t he jury found all three defendants guilty of murder , robbery and conspiracy to commit a crime and found true the robbery murder special circumstance allegation. The jury found true the allegation a principal was armed in the commission of the offenses and also found true the allegation that Verrette personally used a f

irearm. However, they found not true the3

allegation that Verrette personally discharged a firearm causing
death. Defendants were acquitted o n count 3, residential burglary. The prior conviction allegations were found true. In December 2018, we affirmed defendants’ convictions after modifying Ervin’s and Verrette’s respective sentences to reflect imposition of only one life term on count 1 and remanding for resentencing in light of the passage of Senate Bills 620 and
1393 ( 2017

– 2018 Reg. Sess.) during th e pendency of th at appeal. ( People v. Orozco (Dec. 14, 2018, B276130) [nonpub. opn.].) That same year, Senate Bill No. 1437 (2017

– 2018 Reg. Sess.) was passed, amending the law regarding felony murder and the natural and probable consequences doctrine. Senate Bill
1437 also added Penal Code section 1170.95 which set s forth a procedure whereby certain individuals, including those convicted of felony murder, could petition for sentencing r elief.
Section 1170.95 became effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.) On May 15, 2019, Ervin, with the assistance of counsel, filed a petition pursuant to Penal Code section 1170.95. Ervin said he had been convicted of felony murder and requested resentencing, attesting he was not the actual killer, d id not act with intent to kill and was not a major participant in the shooting who acted with reckless disregard for human life

. The People filed written opposition. On October 27, 2020, defendant Verrette filed a form petition for resentencing, in propr ia persona. Verrette said he had been convicted of felony murder and requested resentencing. Verrette asked for counsel to be appointed and also attested he was not the actual killer, did not act with intent to kill and was not a major participant in the shooting who acted with reckless4

disregard for human life

. No written opposition was filed to Verrette’s petition. On November 2, 2020, the same judge who had presided

over the 2015 re trial issued an order summarily denying both petitions. The court fo und that neither Verrette nor Ervin had demonstrated a prima facie case for relief . As to both defendants

, the court reasoned that relief was not available as a matter of law
because the “court file reflects” and the “ C ourt of Appeal
Affirmed ” that each o f them was “either the actual killer or was a major participant in the underlying felony and acted with
reckless indifference to human life.” The court also noted the jury had found true the felony murder special circumstance allegation. Defendants app ealed. Ervin requested we take judicial notice of portions of the record in the prior direct appeal

, including the jury instructions, the closing arguments, the verdict
forms and our 2018 opinion . We grant Ervin’s request and take judicial notice of the record of conviction

. We recite the material facts from our 2018 opinion in which we affirmed defendants’ c onvictions. ( People v. Orozco

, supra , B276130.)

“ April P. was a small

- time drug dealer who also helped her
brother deliver and package methamphe tamine

. April ’ s brother
had been a major drug dealer in the Lake Elsinore area for over 20 years. In July 2010, he violated his probation and turned
himself in to serve a 30

- day sentence. April ’s brother intended
for [Robles] , another drug dealer and th eir childhood friend

, to run his business while he served his sentence . B efore he left, he

gave [Robles] two cell phones and his rema ining supply of methamphetamine . He asked April to help [Robles] run the5

business until his return. ” ( People v. Orozco

, supra , B276130

, fn. omitted .) April described her relationship with Robles “ as one of
brother and sister. ” (

People v. Orozco

, supra , B276130 .) During this time, Robles “ was on parole

, and he kept two ho mes. One,
located on Frank lin Avenue, was where [ Robles] told his parole officer he lived. As a result, he usually did not keep any drugs or weapons in the Frank li n house. The second or ‘ safe ’ house, located on Beachwood Avenue, was where [Robles’s] girlfriend and their son lived. He kept a supply of drugs, money, and weapons at the Beachwood house. ” ( Ibid .) April was related by marriage to Orozco ; h er husband’s brother was married to Orozco’s sister. “ April ’ s brother supplied methamphetamine to Orozco, a member of the Compton Tortilla Flats gang known by the moniker ‘ Stalker .’ ” ( People v. Orozco

, supra , B276130 .) Orozco and Verrette were childhood friends. “ Verrette was a member of the Looters Park Piru gang , who used the moniker

‘ Ace. ’

. . . Although they were members of rival gangs, [Verret te and Orozco] were allowed to maintain a relationship and Orozco was allowed in Looters Park territory without being harassed.
He often visit ed Verrette at his home on San Marcos Street in Looters Park territory

. Orozco was seen near Verrette’s home a
f ew days before [Robles’s] murder

. ” Defendant “ Ervin was known as Casper and was also a member of the Looters Park Piru gang. He was a known associate of Verrette’s. ” ( People v. Orozco

, supra , B276130 .) Robles “ asked April to introduce him to Orozco

. A pril arranged for the introduction at Orozco ’ s house on August 3, 2010, and it appeared to go well. The next day, April and6

[Robles] again met with Orozco in order to give him some drug samples. On their way back from the meeting, Orozco called [Robles] and asked if he knew anyone they co uld ‘ jack ’ to make quick money. ” (

People v. Orozco

, supra , B276130.) April testified the term “jack” meant to rob. Robles “ replied he would work on
it. ” ( Ibid. ) The following day, Orozco asked Robles again “ whether h e knew of someone they could rob

. [Robles] suggested Jose, a drug
deal er who supplied methamphetamine to April ’ s brother. April overheard the conversation and objected, because she believed her brother would be upset about it. [Robles] assured her the
d rug dealer would not know he was involved because they would make it appear as if [ Robles ] was being robbed as well. ” ( People
v. Orozco

, supra , B276130 .)

“ On August 6, April arranged for [Robles] to deliver another sample of methamphetamine to Orozco. A t that meeting,
Orozco asked [Robles] for an advance of the drugs and to allow him to pay for them later. [Robles] refused. Orozco was angry
and asked April to intervene. April did, but with no success. Despite this disagreement, April believed they pl anned to go
forward with the robbery .” ( People v. Orozco

, supra , B276130 .)

“ Orozco and [Robles] arranged for the robbery to take place on August 9, just before Jose planned to leave for Texas with his family. The day before, April drove [Robles] to Jose ’ s auto body shop in Long Beach so [Robles] could place an order for 10 pounds of methamphetamine. Jose confirmed it would be delivered the next day. ” (

People v. Orozco

, supra , B276130 .) On August 9, April drove to Robles’s Franklin Avenue house to go w ith him to Jose’s auto body shop. “ She left her car
there

, and they drove [Robles’s] car to Long Beach

. ” ( People v.7

Orozco

, supra , B276130 .) April called Orozco and told him they were on the way. “ When they arrived, they parked down the
street from the auto body shop and [Robles] walked to the entrance to speak with one of the body shop’s employees. ” ( Ibid. )
He took with him several cell phones and the remote gate opener to his home, among other items. After he got to the shop, Robles called April, “ who was waiting in the parked car, [and told her]
that Jose would be back in about 10 or 15 minutes and asked her
to call Orozco to determine where h e was. Orozco reported he

was ‘ stuck at his home boy’ s house ’ and that he would be there in
a few minutes. ” (

Ibid .) Robles told April to get something to eat. “ As April prepared to leave, she noticed an older model, dark

- colored van parked on the opposite side of the street with its nose towards the curb. It was dented and had a gray bumper. She also no ticed
two African

- Ameri can men, later identified as Ervin and Verrette, trying to open the door to a neighboring business with a
screwdriver . She watched them for a few seconds and then pulled out onto the street. She traveled to the end of the block
and made a u

- turn at the intersection. On her way back down
the street , she observed that [Ervin and Verrette] were in the van and backing up towards the auto body shop , sideswiping a few cars along the way. ” (

People v. Orozco

, supra , B276130. ) April drove past Ervin and Verrette. Then, Robles “called to tell her to come back for some money. She went around the block to get back to the auto body shop, but as she approached,
she saw [Robles’s] shoes and his feet on the ground behind the gate of the auto bo dy shop with no one around. April continued past the shop and onto the freeway, because [Robles] had told her8

to leave if anything went wrong. ” ( People v. Orozco

, supra , B276130 .)

“ The employees of the auto body shop confirmed April’s
account. O ne o f t he employees said he recognized [Robles] and greeted him as he arrived . The employee then went to the back
of the shop to speak with his coworker and call his boss, who told him to give [Robles] a car. When he returned t o the front of the shop a few minu tes later , he saw [Robles] lying face down on the ground with two African

- American men standing over him , one of
whom held a gu n and was rifling through [Robles’s] pockets while
the other man held [Robles’s] head. ” ( People v. Orozco

, supra , B276130 .) The employee had some initial difficulty identifying Verrette from a photographic lineup but eventually identified Verrette as the man with the handgun. “ The employee called his
coworker over ; the coworker saw the two men going through [Robles’s] pockets. T he employees also saw an older model purple van with holes made by a dent puller parked in the driveway of the auto body shop. ” ( Ibid. )

“ Upon seeing the employees

, Verrette pul led what looked like a badge from around his neck and ordered, ‘ Get out. P olice. ’
Both employees complied and went to the back office to hide

. They did not believe the men were police officers, however. They were about to call 911 when they heard three gunshots in quick
succession. They dropped the phone and hid. When they went back to the front of the shop a few minutes later, [Robles] was lying face up on the ground with three gunshots to his head. The employees called 911. [Robles] died shortly thereafter from his
wounds. Forensic evidence showed the gun was a semiauto matic

weapon , which was shot at close range . T here were no defensive
wounds. ” (

People v. Orozco

, supra , B276130 .)9 “ Meanwhile, April called Orozco in a panic to tell him what
she had seen and he directed her to meet him at a car wash near the freeway. He arrive d in a tan Suburban approximately
30 minutes after she did

. April immediately thought something was wrong because Orozco was wearing black gloves and a black hooded sweatshirt in 98 degree weather. Orozco told her he
never made it to the auto bo dy shop. He agreed to drive with her to ensure she got home safely. As they headed to Lake Elsinore, he instructed her to get off the freeway so they could get rid of [Robles’s] car. April abandoned it on a residential street and got
into the back of th e S uburban , which had followed them.
Orozco ’ s best friend, also a member of the Compton Tortilla Flats gang, was driving .” (The friend died in 2011.) ( People v. Orozco

, supra , B276130 .) Once in the Suburban, April recognized Ervin and Verrette
as the t wo men she had just seen at the auto body shop.

“ Verrette sat in the front passenger seat. April sat between
Ervin and Orozco in the back

. ” ( People v. Orozco

, supra , B276130 .)

“ Ervin asked for April ’ s cell phone and removed the battery, telling her he would return it to her later. He and
Verrette broke down three other cell phones and threw the pieces
out of the window. April asked Orozco what happ e ned to [Robles] and he responded, ‘ he is not coming back .’ At some point, Orozco also said, he was ‘ str aight through that fool in sector 8. ’ To this, Verrette responded, ‘ Yeah, we did. ’ Orozco asked Verrette, ‘ are you cool, Ace? ’ Verrette put his hand back to high five Orozco. ” ( People v. Orozco

, supra , B276130. ) April told them her car was parked at Robles’s house on Franklin Avenue. Once they got there, “ Orozco opened the gate10

with the remote that [Robles] had taken with him when he left April . Orozco unlocked the front door of the house and the men began to search it with socks on their hands . T hey eventually found money in a canister in the kitchen as well as a few laptops
and other items

. They took those things. Verrette used a towel to wipe away the Suburban’ s tire tracks from the driveway as they left. ” (

People v. Orozco

, supra , B276130 .) Verrette got into April’s car and they followed the
Suburban to Robles’s other home on Beachwood. Somewhere
close to the ho us e, they stopped so Verrette and April could get
into the Sub ur ban and then continued on to Robles’s house.

“ When they drove by th e Beachwood house

, they saw [Robles’s] son playing outside

. April warned Orozco that [Robles’s] girlfriend would be in the house if her son was outside. H e replied, ‘ I ’ m about to just go inside and crack that bitch up side the head and tie her up. ’ They drove by the house a few more
times , but left without entering when a police car drove up
behind them. ” (

People v. Orozco

, supra , B276130 .)

“ They returned to April ’ s car , and Ervin gave her back her

p hone. . . . [April] asked [Orozco] again what happen ed to [Robles] . He shook his head and told her he was not coming back. Orozco instructed her to tell the police she did not know anything
and to say that she was at home all day if they questioned her. He told her no one would find out what happened bec ause the men with him had been doing this for a while and knew what they were doing. He also gave her $600 to buy a new cell phone. April saw Verrette, who was still in the Suburban, put his finger over his lip s , which April understood as a message to he r to keep quiet. April did not report the crimes to the police because she11

feared for her own safety as well as her family’s. ” ( People v.
Orozco

, supra , B276130 .)
Robles’s “ family suspected April was involved in his murder
and gave the police her cell phone number. April ’s cell phone records indicated she was in Long Beach and had contact with [Robles] on the day he was killed.

. . . They searched April’s cell phone records, which led them to interview Orozco, his best friend, his daughter, and Ervin’ s former girlfriend , among others

. When she was first interviewed by the police, April denied any knowledge of the murder. ” ( People v. Orozco

, supra , B276130 .)

“ On October 7, 2010, April was arrested and charged with [Robles’s] murder and robbery. She was also found with nine grams of methamphetamine and charged with possession of
narcotics. The night before her arrest, Orozco’ s sister threatened her to keep quiet. After her arrest, April admitted to the police
that she dropped [Robles] off at the au to body shop and saw two
African

- American men in a van there , but refused to provide any
other details about the murder. ” ( People v. Orozco

, supra , B276130 .)
H owever, on February 5, 2011, April gave a recorded statement to the police “ describing the eve nts leading to [Robles’s] murder

. She identified Orozco, Ervin

, and Orozco’s
best friend from six

- pack photographic lineups. On March 14,
she identified Verrette , who was not yet a suspect at the time, as

’ Ace ’ from a photographic lineup . She also ident ified the van she
saw at the crime scene. The same day, April entered into a plea agreement under which she pled guilty to robbery and agreed to testify at trial in exchange for three years in state prison. H er account was corroborated by statements from the auto body shop employees and nearby surveillance video , which showed the car12

she and [Robles] used that day driving in the area. In addition, her cell phone records showed her travelling ” to locations during
timeframes that correlated to the informat ion she had provided to the police. (

People v. Orozco

, supra , B276130 .)
“D uring t he investigati on, the police became aware of various telephone numbers the defendants had u sed. C ell phone
records placed each of the d efendant ’ s cell phones near the auto body shop at the time of the murder

, and the police were able to
track their movements before and after ward

. ” ( People v. Orozco

, supra , B276130 .) Verrette’s cell phone record s showed it used a tower near the auto body shop on the morning of Frank’s murd er but was then turned off and its location later in the day could not
be determined

. “ The police noticed a pattern of telephone calls on
the day of the murder , which showed calls between April ’s cell phone and the cell phone numbers used by Orozco, his b est friend, Verrette, and Ervin. ” ( Ibid .) In the course of their investigation, the police were able to
link the distinctive van seen by April and the two auto body shop employees to Ervin

. (

People v. Orozco

, supra , B276130 .) Ervin’s
then

- girlfriend own ed the van and “ testified that Ervin drove her van from approximately June 2010 to the end of December 2010. At some point after the murder, Ervin told his girlfriend not to drive the van in Long Beach or Compton

, but did not explain why. Ervin told his daughter he stopped driving the van because he had gotten into trouble with some people he knew. Ervin changed his hairstyle after his sister told him the police came to her house asking about him. ” ( Ibid .)

“ In December 2010, Ervin’s girlfriend saw him with a black handgun and argued with him about it. She testified it looked
like a nine

- millimeter semi automatic gun

. The cartridge casings,13

bullet, and bullet jacket collected from the murder scene were
determined to have been fired from a semiautomatic firearm. ” ( People v. Orozco

, supra , B276130 .) Several months later, “ Ervin brought a black nine millimeter

- type semiautomatic handgun to his girlfriend ’s house. She hid it while he was taking a shower

. He became angry when he could not find the gun an d threatened his girlfriend with a fireplace poker, yelling, ‘ You stupid bitch. It’s your fault that I killed that Mexican

. ’ The next morning, Ervin’s girlfriend went to the Long Beach Police Department and spoke to a detective investigating Robles’s mu rder. ” ( Ibid .)

“ The p olice obtained wiretaps for various phone numbers they had re ason to believe belonged to the suspect s

. To stimulate conversations for the wiretaps, the police put out bulletins and news reports with information about the murder, some of which

were false . They also dissemin ated sketches of the suspects. ” ( People v. Orozco

, supra , B276130 .) In some of the calls, “d efendants made refer ences to [Robles’s] murder and that they were apprehensive about the police investigation. In o ne, Orozco could be heard speaking in the background while Verrette was making a call to someone.
He stated that his sister had told him to watch the news and that
bulletins had come out about ‘your murder case.’ ” ( People v.
Orozco

, supra , B276130 .) “ O rozco ’s family frequently discussed the police bulletins and the investigation into [Robles’s] murder. ” ( Ibid .)
In calls “ between August and October of 2011

, Verrette often vented about the police investigation to Cameron M., his
friend of more than 20 years. During these conversations, Verrette fretted about the sketches the police were passing out of
the suspects to [Robles’s] murder. ” ( People v. Orozco

, supra ,14

B276130 .) “ Verrette told another friend he had changed his phone number, and would chang e it again, because the police
could have use d his number to find out who had been in contact
with him. Verrette also indicated he was lying ‘lower than an ant with chucks on.’ He refused to go to Long Beach because ‘[t]hey been showing pictures of mutha fuckas and doing all kinds of
shit. I been seeing sketches and shit all kinds of shit over here.’ ” ( Ibid .)

“ On September 27, 2011, a Long Beach Police Department helicopter repeatedly flew low over the home Verrette shared with his grandmother

. . . . He complained about people coming to his house to specifically show him the police sketches. After the helicopters flew over his house, Verrette was recorded telling a friend that because of an emergency, he may need to cut his hair and change his appear ance. ” ( People v. Orozco

, supra , B276130 .)
R ichard Sanchez, a gang investigator with the Los Angeles County Sheriff’s Department , testified as the prosecution’s gang expert. “ Deputy Sanchez testified generally about gang culture and gang terminology

. He identified the different gangs located within Compton. ” (

People v. Orozco

, supra , B276130 .) Among other things, he testified “he had known both Orozco and
Verrette since the 1990s. He knew Verrette to have the street
moniker ‘ Ace

. ’ He also understo od Verrette was an ‘ O.G. ,’ known as an original gangster, or shot caller for the Looters Park Piru

gang. This meant that he had freedom to do things that a younger member of the gang would not. ” ( Ibid .) He testified
Orozco was known as “Stalker” and was considered “ a shot caller

or ‘ O.G. ’ within the Compton Tortilla Flats. Detective Sanchez further testified another gang investigator working in Compton
told him Verrette and Orozco grew up in the same neighborhood15

and were childhood friends. As a result , they were allowed to maintain their friendship, despite their gangs’ rivalry. Detective Sanchez opined that no one would question two O.G. shot callers from rival gangs committing a crime together. Moreover, the police might not think to investigate a gang member as an accomplice in a crime committed by a rival gang member

. ” ( Ibid .)

“ Defendants did not testify. Verrette’s grandmother provided an alibi for him . She testified Verrette had scheduled a colonoscopy on August 10 and that she was with him all day on August 9, the day of [Robles’s] murder, to help him prepare for it

. She explained t he doctor had ordered Verrette to drink a gallon of
laxatives by 9 :00 p.m. that day as well as complete a fleet enema.
She testified she was with him until 5:30 p.m., at which point his girlfriend pick ed him up. The prosecution countered with testimony from a nurse who confirmed that a patient could begin to prepare for such a procedure as late as 7 :00 or 7:30 p.m. the night before. ” (

People v. Orozco

, supra , B 276130. )

DISCUSSION

1. People v. Lewis (2021) 11 Cal.5th 952 The trial court summarily denied both petitions in November 2020, before t he Supreme Court decided People v.
Lewis (2021) 11 Cal. 5th 952 ( Lewis ).
Lewis resolved several principles relevant here

. Lewis h eld it is error for a trial court to fail to appoint counsel to a defendant who has submitted a facially sufficient petition. ( Lewis

, supra , 11 Cal. 5th at pp. 970, 972

– 973.) But the failure to appoint counsel at this stage in the resentenc ing proceedings is state law error only, subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818. ( Lewis

, at

pp. 973

– 974 .) Lewis further explained that “ a petitioner ‘ whose16

petition is denied before an order to show cause issues ha s the burden of showing “ 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.)
Lewis also reaffirmed that ap pellate opinions are a part of the record of conviction, and held they are properly considered by the court in making a prima facie determination under Penal Code section 1170.95, subdivision (c). ( Lewis

, supra , 11 Cal. 5th at p. 972.) However, Lewis caut ioned the prima facie inquiry “is limited” ( id . at p. 971) and that “ the probative value of an appellate opinion is case specific, and ‘ it is certainly correct that an appellate opinion might not supply all answers. ’ [Citation.] In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in

‘ factfinding involving the weighing of evidence or the exercise of
discretion ’ ” ( i d . at p. 972)

. But, where “ ‘ the record, including the court ’ s own documents, “ con tain[s] facts refuting the allegations made in the petition, ” then “ the court is justified in making a credibility determination adverse to the petitioner. ” ’ ” ( Lewis

, supra , 11 Cal. 5th at p. 971

. )
2. The Special Circumstance Finding
Both Verrette and Ervin argue the trial court erred in relying on the jury’s true finding on the felony murder special circumstance allegation in denying relief

, because the finding predated the Supreme Court’s decision s in People v. Banks (2015)
61 Cal. 4th 788 (

Banks ) and People v. Clark (2016) 63 Cal. 4th 522 ( Clark ). The retrial here, in October 2015, occurred shortly after
Banks was issued and several months before Clark was decided.17 “ Banks and Clark provided guidance for determining whether a defendant was a major p articipant ( Banks ) and exhibited a reckless indifference to human life ( Clark ), identifying several considerations, ‘ [n]o one of [which] is necessary, nor is any one of them necessarily sufficient. ’ ( Banks

, supra , 61 Cal.4th at p. 803; see Clark

, supra , 6 3 Cal.4th at

p. 618.) ” (

People v. Mejorado (2022) 73 Cal.App.5th 562, 566 ( Mejorado ) .) There is split of authority among the Courts of Appeal as to whether a pre

- Banks and pre

- Clark felony murder special circumstance finding preclude s a defendant from ma king a prima facie showing of eligibility for resentencing relief. ( Compare People v. Gomez (2020) 52 Cal.App. 5th 1, 17, review granted
Oct. 14, 2020, S264033 [concluding that remedy for special circumstance is a petition for habeas corpus] , with People v

. Smith (2020) 49 Cal.App. 5th 85 , 94 , review granted July 22, 2020, S262835 [concluding special circumstance finding is not a categorical bar to resentencing relief].) The Supreme Court is currently considering the issue. ( People v. Strong (Dec. 18, 2020
, C091162) [nonpub. opn.], review granted Mar. 10, 2021, S266606.) As we recently said in Mejorado , p ending guidance from the Supreme Court, we adopt the reasoning of Smith and the cases
that have followed it and conclude that a felony murder special
ci rcumstance finding “ is not a categorical bar to resentencing relief in every case as a matter of law. ” ( Mejorado, supra,

73 Cal.App.5th at p. 571.) The trial court here did not rely exclusively on the jury’s true finding on the special circumstance all egation in denying
defendants’ petitions . The fact the court noted it as part of the18

basis for its decision does not warrant a reversal as defendants
seem to suggest. We must consider the balance of the court’s orders denying relief to each defendant.
3

. Defendant Verrette
Verrette contends the trial court committed error in denying his petition without appointing counsel and in making a factual determination at the prima facie stage. He further contends the court denied him due process by relying on our prior 2018 opinion which he contends contains errors with respect to the jury’s findings on the firearm use allegations. We agree the court committed error in failing to appoint counsel, but the error was harmless. ( Lewis

, supra , 11 Cal. 5th at

p. 9 74.) Verrette has failed to show that

, if he had been appointed counsel

, his petition would not have been summarily
denied. T he record of conviction contains facts refuting the allegations Verrette made in his petition . The facts establish his ineligibi lity as a matter of law. ( Id . at p. 971; accord, Mejorado

, supra , 73 Cal.App. 5th at p. 572 [error in failing to appoint
counsel is harmless “if we can determine that the record of
conviction ‘ “ ‘ contain[s] facts refuting the a llegations made in the petit ion ’ ” ’ ”].) Under current law, in light of the amendments effected by Senate Bill 1437, felony murder liability may be imposed only if one of the following is proven, “ (1) The person was the actual
killer. [¶] (2) The person was not the actual kill er, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with
reckless indifference to human life .” ( Pen. Code, § 189, subd. (e) ;19

see also People v. Gentile (2020) 10 Cal.5th 830, 842 & Mejorado

, supra , 73 Cal.App.5th at p. 567.)
The facts and evidence described in our 2018 opinion
demonstrate t hat Ver rette was either the actual shooter , or aided and abetted Ervin in the shooting, or was a major participant
who acted with reckless indifference to human life in the robbery
and murder of Robles. That the jury was unsure whether Verrette or Ervin was
the one who pulled the trigger does not undermine the otherwise
uncontroverted evidence that Robles was brutally shot three times in the head at close range, and that moments before the fatal shots were fired, Verrette was seen holding a handgun and standing o ver Robles while Ervin was holding him down on the ground. The record of conviction therefore unequivocally refutes the allegations in Verrette’s petition and denial was therefore
warranted. As for Verrette’s contention our 2018 opinion, upon which
the trial court relied, erroneously described the jury findings on the firearm use allegations, it is not correct. T he general statement in the opinion to which defendant eludes

, that the firearm allegations as to count 1 were all found true

, was clarified in that same paragraph with the statement that the allegations found true were that a principal used a firearm in the commission of the offenses and that Verrette personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b). There was no denial of due process.
4

. Defendant Ervin
Ervin , who filed his petition with the assistance of counsel

, contends the court committed error by making a factual determination at the prima facie stage and relying on facts not20

contained in his petition. He also argues the evidence in the
record is insufficient to establish as a matter of law that he was the actual killer or a major participant who acted with reckless disregard under the law as amended by Senate Bill 1437. We disagree.
As to first point, as we already explained above, Lewis held
the record of conviction may be considered by the trial court in making a prima facie determination.
Ervin ’s contention the record fails to establish his ineligibility as a matter of law is also witho ut merit. Ervin
contends there is no evidence he was the shooter . He also suggests the only permissible inference from the record is that Robles was shot spontaneously when he unexpectedly resisted, and that any other inference is based purely on specula tion. T his
is a not an accurate characterization of the record. As we already explained above, the jury may have been
unsure whether Verrette or Ervin was the one who pulled the trigger , but the evidence is uncontroverted that both Ervin and
Verrette we re direct participants in the brutal shooting of Robles. The witness testimony placed the gun in Verrette’s hands, but
the balance of the evidence demonstrates Ervin aided and abetted the shooting and was a major participant who acted with
reckless indiff

erence as defined under current law.
“R eckless indifference to human life is ‘ implicit in knowingly engaging in criminal activities known to carry a grave
risk of death. ’ [Citation.] Examples include ‘ . . . the robber who
shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim ’ s property. ’ [Citation.] Reckless indifference ‘ encompasses a21

willingness to kill (or to assist an other in killing) to achieve a distinct aim, even if the defendant does not specifically desire
that death as the outcome of his actions. ’ ” ( In re Scoggins (2020) 9 Cal.5th 667, 676

– 677.) The record of conviction refutes the allegations in Ervin’s peti tion as a matter of law and denial was therefore warranted.
DISPOSITION The order denying defendant and appellant Frank Ervin’s petition for resentencing is affirmed. The order denying defendant and appellant Shawn
Ver r ette’s petition for resentencing is affirmed.

GRIMES

, Acting P. J.

W E CONCUR :

WILEY, J.

HARUTUNIAN, J. *

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.