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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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.,

Defendants and Appellants.

 B309740

 (Los Angeles County

 Super. Ct. No. NA090280)

APPEAL from judgments of the Superior Court of Los 

Angeles County. James D. Otto, Judge. Affirmed.

Matthew Alger, under appointment by the Court 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. Madeo, Deputy 

Attorneys General, for Plaintiff and Respondent.

* * * * * * * * * * 
2

Defendants and appellants Frank Ervin and Shawn 

Verrette are each serving a life sentence without the possibility of 

parole for the special circumstance murder and robbery of 

Franklin Robles. Defendants appeal from the orders denying 

their respective petitions for resentencing pursuant to Penal 

Code section 1170.95. 

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Ervin, Verrette and a third defendant, Luis Orozco, were 

charged with the 2010 special circumstance murder of Franklin 

Robles. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17); 

count 1.) They were also charged with robbery (§ 211; count 2),

residential 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, 

B306916) [nonpub. opn.]).) 

The first joint trial of Ervin, Verrette and Orozco resulted 

in a mistrial due to juror misconduct. 

The retrial proceeded in October 2015. During 

deliberations, the jury asked a question about how to proceed on 

the firearm use allegations if they were conflicted about whether 

Verrette or Ervin was the shooter. After further deliberations, 

the 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 firearm. However, they found not true the 
3

allegation that Verrette personally discharged a firearm causing 

death. Defendants were acquitted on 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 the pendency of that 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 sets forth a 

procedure whereby certain individuals, including those convicted 

of felony murder, could petition for sentencing relief. 

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, did 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 propria 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 reckless 
4

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 retrial issued an order summarily denying both 

petitions. The court found 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 “Court of Appeal 

Affirmed” that each of 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 appealed. 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’ convictions. (People v. Orozco, supra, 

B276130.) 

“April P. was a small-time drug dealer who also helped her 

brother deliver and package methamphetamine. 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 their childhood friend, to 

run his business while he served his sentence. Before he left, he 

gave [Robles] two cell phones and his remaining supply of 

methamphetamine. He asked April to help [Robles] run the 
5

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 homes. One, 

located on Franklin Avenue, was where [Robles] told his parole 

officer he lived. As a result, he usually did not keep any drugs or 

weapons in the Franklin 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; her 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, [Verrette 

and Orozco] were allowed to maintain a relationship and Orozco 

was allowed in Looters Park territory without being harassed. 

He often visited Verrette at his home on San Marcos Street in 

Looters Park territory. Orozco was seen near Verrette’s home a 

few 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 Aprilto introduce him to Orozco. April

arranged for the introduction at Orozco’s house on August 3, 

2010, and it appeared to go well. The next day, April and 
6

[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 could ‘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 he 

knew of someone they could rob. [Robles] suggested Jose, a drug 

dealer 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 

drug 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. At 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 Aprilto intervene. April did, but with no success. 

Despite this disagreement, April believed they planned 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 with 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 he 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 noticed 

two African-American 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 body shop with no one around. April continued 

past the shop and onto the freeway, because [Robles] had told her 
8

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

B276130.)

“The employees of the auto body shop confirmed April’s 

account. One of the 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 to the front of the 

shop a few minutes later, he saw [Robles] lying face down on the 

ground with two African-American men standing over him, one of 

whom held a gun 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. The 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 pulled what looked 

like a badge from around his neck and ordered, ‘Get out. Police.’ 

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 semiautomatic 

weapon, which was shot at close range. There 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 arrived 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 body 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 the Suburban, 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 two 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 happened to [Robles]

and he responded, ‘he is not coming back.’ At some point, Orozco 

also said, he was ‘straight 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.) 

Apriltold them her car was parked at Robles’s house on 

Franklin Avenue. Once they got there, “Orozco opened the gate 
10

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. They 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 house, they stopped so Verrette and April could get 

into the Suburban and then continued on to Robles’s house. 

“When they drove by the 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. He 

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 

phone. . . . [April] asked [Orozco] again what happened 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 because 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 lips, which April understood as a message to her to keep 

quiet. April did not report the crimes to the police because she 
11

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 auto 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.) 

However, on February 5, 2011, April gave a recorded 

statement to the police “describing the events 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 identified 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. Her 

account was corroborated by statements from the auto body shop 

employees and nearby surveillance video, which showed the car
12

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 information she had provided 

to the police. (People v. Orozco, supra, B276130.) 

“During the investigation, the police became aware of

various telephone numbers the defendants had used. Cell phone 

records placed each of the defendant’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 afterward.” (People v. Orozco, 

supra, B276130.) Verrette’s cell phone records showed it used a 

tower near the auto body shop on the morning of Frank’s murder

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 best 

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 owned 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 semiautomatic 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 and 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 murder.” (Ibid.) 

“The police obtained wiretaps for various phone numbers 

they had reason to believe belonged to the suspects. 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 disseminated sketches of the suspects.” 

(People v. Orozco, supra, B276130.) 

In some of the calls, “defendants made references to 

[Robles’s] murder and that they were apprehensive about the 

police investigation. In one, 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.) “Orozco’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 change it again, because the police 

could have used 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 appearance.” (People v. Orozco, supra, B276130.) 

Richard 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 understood 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 neighborhood 
15

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 the 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 picked 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, B276130.) 

DISCUSSION

1. People v. Lewis (2021) 11 Cal.5th 952

The trial court summarily denied both petitions in 

November 2020, before the Supreme Court decided People v. 

Lewis (2021) 11 Cal.5th 952 (Lewis). 

Lewis resolved several principles relevant here. 

Lewis held 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 resentencing 

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 ‘whose 
16

petition is denied before an order to show cause issues has 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 appellate 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 cautioned 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’ ” (id. at p. 972).

But, where “ ‘the record, including the court’s own 

documents, “contain[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 decisions 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 participant (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, 63 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 precludes a defendant from making 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, pending 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 

circumstance 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 allegation in denying 

defendants’ petitions. The fact the court noted it as part of the 
18

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. 974.) Verrette has failed to show that, if he had been 

appointed counsel, his petition would not have been summarily 

denied. The record of conviction contains facts refuting the 

allegations Verrette made in his petition. The facts establish his 

ineligibility 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 allegations made in the 

petition’ ” ’ ”].) 

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 killer, but, with the 

intent to kill, aided, abetted, counseled, commanded, induced, 

solicited, requested, or assisted the actual killer in the 

commission of murder in the first degree. [¶] (3) The person was 

a major participant in the underlying felony and acted with 

reckless indifference to human life.” (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 that Verrette 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 over 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. The 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 not 
20

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 without 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 speculation. This 

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 were 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 indifference as defined under current law.

“Reckless 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 a 
21

willingness to kill (or to assist another 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 

petition 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 

Verrette’s petition for resentencing is affirmed. 

GRIMES, Acting P. J.

WE 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.