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Filed 11/2/22 P. v. Baker CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL SHAWN BAKER,

Defendant and Appellant.

E072712

(Super.Ct.No. CR56701)

OPINION ON TRANSFER

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. 

Reversed and remanded with directions.

William Paul Melcher, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys

General, Eric A. Swenson, Michael D. Butera and Christopher P. Beesley, Deputy 

Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant, Michael Shawn Baker, filed a petition for resentencing 

pursuant to former Penal Code section 1170.95,1 which the court denied. On appeal, 

defendant contended the court erred in summarily denying his petition based on the jury’s 

true finding on a felony-murder special-circumstance allegation and by ruling on his

petition prior to allowing his filing of a reply. By opinion filed October 30, 2020, we 

affirmed.

On September 28, 2022, the California Supreme Court transferred the matter back 

to us with directions to vacate our decision and reconsider the cause in light of People v. 

Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952 

(Lewis). On September 29, 2022, we ordered our decision vacated and set a briefing 

schedule.

Defendant argues that pursuant to Strong, the court erred in determining that the 

jury’s true finding on the felony-murder special-circumstance allegation rendered prior to 

the decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark

(2016) 63 Cal.4th 522 (Clark) made him ineligible for relief. Defendant maintains he 

made the requisite prima facie showing, and the matter should be remanded for the 

issuance of an order to show cause and the holding of an evidentiary hearing. The People 

1

 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) 

amended and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022, 

ch. 58, § 10.) All further statutory references are to the Penal Code unless otherwise 

indicated.
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concede that the matter should be remanded for further proceedings. We reverse and 

remand the matter for reconsideration.

I. PROCEDURAL BACKGROUND2

On November 16, 1994, a jury found defendant guilty of first degree murder. 

(Pen. Code, § 187, count 1.) The jury also returned a true finding on a special 

circumstance allegation under section 190.2, former subdivision (a)(17)(i) (now 

subd. (a)(17)(A); Stats 1995, ch. 478, § 2), that the murder was committed while

defendant was engaged in the commission of a robbery. The court sentenced defendant 

to life without the possibility of parole. (Baker, supra, E015610.)

Defendant appealed. By opinion filed on August 20, 1996, this court affirmed the 

judgment. (Baker, supra, E015610.)

On January 7, 2019, defendant filed a form petition for resentencing under former 

section 1170.95. On March 8, 2019, the People filed a response, in pertinent part, 

contending the petition should be summarily denied because defendant had not made a 

prima facie showing for relief.

The court held a hearing on the petition on April 19, 2019. Defense counsel

stated: “We would be appearing, file a place holder, and ask for a stay, please.” The 

People informed the court that the jury found the robbery-murder special-circumstance

2

 We take judicial notice of our prior opinion in People v. Baker (Aug. 20, 1996, 

E015610) [nonpub. opn.] (Baker), from defendant’s appeal from the judgment, which 

was attached as an exhibit to the People’s response to defendant’s petition. (§§ 452, 

subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).)
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allegation true, and that the jury was given CALJIC No. 8.80.1, requiring that it find that 

defendant was a major participant who acted with reckless indifference. The court 

summarily denied the petition. Defense counsel objected.

II. DISCUSSION

Defendant argues the court erred in denying his petition, and the matter should be 

remanded for the issuance of an order to show cause and the holding of an evidentiary 

hearing. The People concede the matter should be remanded for further proceedings. We 

reverse and remand the matter for a new prima facie hearing.

“Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of the 

felony-murder rule to effectuate the Legislature’s declared intent ‘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.’” (Strong, supra, 13 Cal.5th at pp. 707-708.) “Senate Bill 

1437 also created a special procedural mechanism for those convicted under the former 

law to seek retroactive relief under the law as amended. [Citations.] Under newly 

enacted section 1172.6, the process begins with the filing of a petition containing a 

declaration that all requirements for eligibility are met [citations], including that ‘[t]he 

petitioner could not presently be convicted of murder or attempted murder because of 

changes to . . . Section 188 or 189 made effective January 1, 2019,’ the effective date of 

Senate Bill 1437 [citation].” (Id. at p. 708, fn. omitted.)
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“When the trial court receives a petition containing the necessary declaration and 

other required information, the court must evaluate the petition ‘to determine whether the 

petitioner has made a prima facie case for relief.’ [Citations.] If the petition and record 

in the case establish conclusively that the defendant is ineligible for relief, the trial court 

may dismiss the petition.” (Strong, supra, 13 Cal.5th at p. 708.) “As a general matter, a 

trial court should afford both parties the opportunity to brief the question of a petitioner’s 

eligibility for relief and may extend the briefing deadlines ‘for good cause’ as necessary 

to ensure that such an opportunity is meaningful.” (Lewis, supra, 11 Cal.5th at p. 966, 

fn. 4.)

“While the trial court may look at the record of conviction after the appointment of 

counsel to determine whether a petitioner has made a prima facie case for . . . relief, the 

prima facie inquiry . . . is limited. Like the analogous prima facie inquiry in habeas 

corpus proceedings, ‘“the court takes petitioner’s factual allegations as true and makes a 

preliminary assessment regarding whether the petitioner would be entitled to relief if his 

or her factual allegations were proved. If so, the court must issue an order to show 

cause.”’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on 

credibility grounds without first conducting an evidentiary hearing.’” (Lewis, supra, 

11 Cal.5th at p. 971.) “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.) “[T]he ‘prima facie 

bar was intentionally and correctly set very low.’” (Ibid.)
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Where a defendant’s “case was tried before both Banks and Clark, . . . special 

circumstance findings do not preclude him from making out a prima facie case for 

resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at p. 721.) A court “err[s] 

in concluding otherwise.” (Ibid.)

If, instead, a defendant has made a prima facie showing of entitlement to relief, 

“‘the court shall issue an order to show cause.’” (Strong, supra, 13 Cal.5th at p. 708.) 

Once the court determines that a defendant has made a prima facie showing, “the court 

must [then] hold an evidentiary hearing at which the prosecution bears the burden of 

proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted 

murder’ under state law as amended by Senate Bill 1437. [Citation.] ‘A finding that 

there is substantial evidence to support a conviction for murder, attempted murder, or 

manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is 

ineligible for resentencing.’ [Citation.] ‘If the prosecution fails to sustain its burden of 

proof, the prior conviction, and any allegations and enhancements attached to the 

conviction, shall be vacated and the petitioner shall be resentenced on the remaining 

charges.’” (Id. at p. 709.) “Senate Bill 1437 relief is unavailable if the defendant was 

either the actual killer, acted with the intent to kill, or ‘was a major participant in the 

underlying felony and acted with reckless indifference to human life . . . .’” (Id. at 

p. 710.)
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Here, the jury rendered the special murder circumstance finding long before both 

Banks and Clark were decided. With respect to those findings, “no judge or jury has ever 

found the currently required degree of culpability . . . .” (Strong, supra, 13 Cal.5th at p. 

718, italics added.) Thus, as we originally determined, the felony-murder specialcircumstance finding did not, alone, render defendant per se ineligible for relief. 

Therefore, the court below erred in denying defendant’s petition on that basis.

III. DISPOSITION

The order denying defendant’s petition is reversed. The matter is remanded with 

directions to hold a new prima facie hearing. We express no opinion on whether 

defendant is entitled to relief following the hearing.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MENETREZ

J.