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Filed 3/17/23 P. v. Pierce CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JAYSHAWN VISA PIERCE,

Defendant and Appellant.

C093003

(Super. Ct. No. 06F04599)

ON TRANSFER

In 2008, a jury found defendant Jayshawn Visa Pierce guilty of first degree murder 

and attempted robbery. (People v. Pierce (May 18, 2010, C060588) [nonpub. opn.]

(Pierce).) The jury found true a special circumstance allegation that the murder was 

committed during the attempted robbery, but found not true the allegation that defendant 

had intentionally and personally used a firearm in the commission of the murder. The 

trial court sentenced defendant to life without the possibility of parole plus two years 

eight months. In May 2010, this court modified the judgment to correct sentencing errors 

and affirmed the judgment as modified. (Ibid.)
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Defendant subsequently petitioned the trial court for resentencing under what is 

now Penal Code section 1172.61 based on changes made to the felony-murder rule by 

Senate Bill No. 1437 (2017-2018 Reg. Sess.). The trial court denied defendant’s petition, 

finding the record established defendant was ineligible for resentencing because the jury 

found true the special circumstance allegations, and because defendant was the actual 

killer or at least a major participant. Defendant appealed, arguing, among other things, 

that the trial court erred in determining he was ineligible for resentencing as a matter of 

law based on the jury’s special circumstance finding. This court affirmed the trial court’s 

order.

The California Supreme Court transferred the case back to this court with 

directions to reconsider the matter in light of People v. Strong (2022) 13 Cal.5th 698 

(Strong). We conclude the trial court’s order denying the petition for resentencing must 

be reversed and the matter remanded for further proceedings consistent with this opinion.

BACKGROUND

Defendant and his codefendants were looking for someone to rob so they could 

pay bail money for a friend. They waited outside a nightclub and followed two 

individuals. Defendant approached the victims with a shotgun and said “Give me your 

shit” or something to that effect. The victims offered a purse and said they did not want 

any trouble, but defendant shot and killed one of them. (Pierce, supra, C060588.)

The jury found defendant guilty of first degree murder (§§ 187, 189) and two 

counts of attempted robbery (§§ 211, 664). As to the murder count, the jury found 

true the special circumstance allegation that the murder was committed during the 

attempted robbery. (§ 190.2, subd. (a)(17).) But it found not true the allegation that 

defendant had intentionally and personally used a firearm in the commission of the 

1 Undesignated statutory references are to the Penal Code.
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murder. (§ 12022.53, subd. (d).) The trial court sentenced defendant to life without the 

possibility of parole plus two years eight months. Following a direct appeal, this court 

modified the judgment to correct sentencing errors and affirmed the judgment as 

modified. (Pierce, supra, C060588.)

On May 22, 2019, defendant filed a petition in the trial court to vacate his first

degree murder conviction under what is now section 1172.6. The petition asserted a 

“complaint, information, or indictment was filed against [him] that allowed the 

prosecution to proceed under a theory of felony murder or murder under the natural and 

probable consequences doctrine.” Defendant also declared that at trial, he was 

“convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural 

and probable consequences doctrine.” He declared that following the amendments made 

to sections 188 and 189, he could not now be convicted of first degree murder. He left 

blank the remaining form petition questions about whether he was an actual killer or was 

a major participant in a felony. The trial court appointed counsel for defendant.

In a written order, the trial court denied defendant relief. It found that because of 

the special circumstance finding, defendant had not made a prima facie showing of 

eligibility. The trial court also reasoned that even if defendant was not precluded from 

relief based on the special circumstance finding because the finding occurred prior to the 

Supreme Court decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. 

Clark (2016) 63 Cal.4th 522 (Clark), it would make no difference because defendant was 

the actual killer or at least a major participant under Banks.

After this court affirmed the trial court’s order denying defendant’s petition, the 

California Supreme Court transferred the case back to us with directions to reconsider the 

matter in light of Strong, supra, 13 Cal.5th 698.

DISCUSSION

Defendant originally argued that the trial court should have issued an order to 

show cause and conducted an evidentiary hearing. In both his original and supplemental 
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briefing, he contends the trial court erred in relying on the jury’s special circumstance 

finding to establish that he was a major participant who acted with reckless indifference 

to human life, because the California Supreme Court clarified the special circumstances 

analysis after his conviction in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 

522. In addition, he challenges the trial court’s reasoning that defendant is ineligible for 

relief because he was the actual killer, claiming the determination was improper under 

People v. Lewis (2021) 11 Cal.5th 952 (Lewis). The People respond that defendant is 

ineligible for relief because the record of conviction unequivocally shows he was the 

actual killer.

A

The Legislature enacted and the Governor signed Senate Bill No. 1437, effective 

January 1, 2019 (Stats. 2018, ch. 1015, § 4), determining that the change in law was 

“ ‘necessary 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.’ ” 

(People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275.) As pertinent here, 

Senate Bill No. 1437 added what is now section 1172.6, which permits a person 

convicted of felony murder or murder under a natural and probable consequences theory 

to petition the sentencing court to vacate the murder conviction and resentence the person 

on any remaining counts if, among other things, the petitioner could not be convicted of 

first or second degree murder due to the change in the law. (§ 1172.6, subd. (a).)

Section 190.2, subdivision (d) provides that, for the purposes of those special 

circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), 

which include robbery, an aider and abettor must have been a major participant and have 

acted with reckless indifference to human life. (§ 190.2, subd. (d); Tapia v. Superior 

Court (1991) 53 Cal.3d 282, 298.) In Banks and Clark, the California Supreme Court 
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construed section 190.2, subdivision (d). (People v. Torres (2020) 46 Cal.App.5th 1168, 

1179.) And in Strong, the Supreme Court concluded that “[f]indings issued by a jury 

before Banks and Clark do not preclude a defendant from making out a prima facie case 

for relief under Senate Bill [No.] 1437. This is true even if the trial evidence would 

have been sufficient to support the findings under Banks and Clark.” (Strong, supra, 

13 Cal.5th at p. 710.)

B

The People nevertheless claim defendant was the actual killer and therefore

ineligible for relief.

2 Defendant counters that the trial court made an impermissible 

evidentiary determination at the prima facie stage.

Lewis clarified the procedure for determining whether a petitioner has made a 

prima facie showing. The trial court may review the entire record of conviction, 

including the opinion in the direct appeal, but it should not engage in factfinding 

involving the weighing of evidence or the exercise of discretion unless the record clearly 

refutes the petitioner’s allegations. (Lewis, supra, 11 Cal.5th at 971-972.)

In this case, the trial court referenced facts set forth in this court’s opinion on 

direct appeal and reasoned: “There does not appear to have been any evidence 

introduced at trial to show that anyone except [defendant] fired the final shot. However, 

in [defendant’s] recorded phone conversation with [a friend] at the jail, [defendant] told 

[his friend] that his finger had slipped. Thus, there was evidence that showed that 

[defendant] did not intend to actually pull the trigger, and that his finger had accidentally 

slipped. For this reason, it appears that the jury found the [section 12022.53, 

subdivision (d)] gun enhancement allegation to be not true. It does not appear that the 

jury necessarily found that [defendant] was not the actual shooter. [¶] As the Third 

2 We granted the People’s motion to incorporate by reference the record on appeal in the 

related case on direct appeal, Pierce, supra, C060588.
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District affirmed the judgment, the true finding on the felony-murder special 

circumstance remains in place. Nor does it appear from the record that [defendant] was 

anything but the actual shooter.”

The trial court relied on facts recited in this court’s prior opinion. But effective 

January 1, 2022, the Legislature limited a trial court’s use of such a factual summary. 

(People v. Clements (2022) 75 Cal.App.5th 276, 292.)

C

Based on current applicable law, we will remand the matter to the trial court

to give it the opportunity to consider the entire record of conviction and determine

if defendant is entitled to an order to show cause and an evidentiary hearing.

DISPOSITION

The order denying defendant’s section 1172.6 petition is reversed, and the matter 

is remanded to the trial court for further proceedings consistent with this opinion.

 /S/

MAURO, J.

We concur:

 /S/

HULL, Acting P. J.

 /S/

RENNER, J.