Filed 10/13/23 P. v. Fegan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

STEPHEN FEGAN,

Defendant and Appellant.

F083705

(Consolidated w/F085192)

(Merced Super. Ct. No. SUF18939)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. Mark V. 

Bacciarini, Judge.

Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. 

Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Poochigian, Acting P. J., Peña, J. and Meehan, J.
2.

INTRODUCTION

In 1995, appellant and defendant Stephen Fegan (appellant) was convicted of two 

counts of first degree murder with special circumstances for killing his estranged wife 

and her boyfriend with an axe and a knife. He was sentenced to two consecutive terms of 

life in prison without the possibility of parole (LWOP). The judgment was affirmed on 

direct appeal. Thereafter, appellant filed four successive petitions for resentencing 

pursuant to former section 1170.95 of the Penal Code.1 The trial court denied these 

petitions, and this court affirmed the trial court’s orders.

In 2021, appellant filed his fifth petition for resentencing and asserted he was 

entitled to relief because he was convicted based on the felony murder rule. The trial 

court denied the petition. In this appeal from the trial court’s order (case No. F083075), 

appellate counsel filed a brief with this court which summarized the facts and procedural 

history with citations to the record, raised no issues, and asked this court to independently 

review the record. Appellant has filed a supplemental letter brief raising alleged claims 

of error from his jury trial and the denial of his fifth petition.

In 2022, while his appeal was pending from the denial of his fifth petition, 

appellant filed his sixth petition for resentencing with the trial court. The court denied his 

sixth petition with prejudice, and appellant has filed an appeal from that order (case 

no F085192). Appellate counsel filed a brief that raises a single issue – that the trial court 

lacked jurisdiction to deny his sixth petition because his appeal from the denial of his 

fifth petition was still pending on appeal.

We ordered consolidation of the appeals from the denial of appellant’s fifth and 

sixth petitions. We will order modification of the trial court’s order that denied his sixth 

1 All further statutory citations are to the Penal Code unless otherwise indicated. 

Appellant filed his fifth petition under former section 1170.95. As will be explained 

below, the statute was substantively amended effective January 1, 2022, and then 

renumbered as section 1172.6 without further substantive changes on June 30, 2022.

(People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3.)
3.

petition, and otherwise affirm the court’s denial orders in both cases because he failed to 

make a prima facie case since the record of conviction shows he was tried and convicted 

as the actual killer and ineligible for resentencing as a matter of law.

FACTS2

In December 1993, appellant and his wife, Teresa Leonard (Leonard), separated. 

They had one child. Appellant relocated to Roseville and moved in with his father. 

Leonard and their minor child moved to Merced and lived with James Hartery (Hartery).

Sometime around 4:30 a.m. on March 8, 1994, appellant’s father got up and 

discovered appellant was gone and had taken his father’s car without permission. 

Appellant’s father contacted the Roseville Police Department because he was worried 

that appellant was desperate and might confront Leonard; he reported the stolen vehicle.

“On the morning of March 8, 1994, [appellant] drove from his father’s home in 

Roseville ... to the home of ... Hartery in Merced. [Leonard and their minor child] had 

2

In this appeal, appellant requested this court take judicial notice of the jury 

instructions given at his trial and augment the record with those instructions. This court 

granted appellant’s motion to augment and denied the judicial notice request as moot.

We subsequently advised the parties that upon reconsideration, we were 

considering taking judicial notice of the entirety of this court’s records in People v. 

Fegan (F025279, Dec. 31, 1997) [nonpub. opn.] (Fegan I), that affirmed his convictions 

on direct appeal.

The parties have not objected, and we thus take judicial notice of the record in 

Fegan I, supra, F025279 and the nonpublished opinion (ibid.) in appellant’s direct 

appeal. The following facts are from this court’s records and nonpublished opinion in 

Fegan I.

In reviewing a section 1172.6 petition, the court may rely on “the procedural 

history of the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3); People

v. Clements (2022) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 

393, 406, fn. 9.) The role of the appellate opinion is limited, however, and the court may 

not rely on factual summaries contained in prior appellate decisions or engage in fact 

finding at the prima facie stage. (People v. Clements, at p. 292; People v. Lewis (2021) 

11 Cal.5th 952, 972 (Lewis).) We have stated the facts from the record of appellant’s 

direct appeal to place his arguments in context and will not rely on these facts to resolve 

appellant’s appeal.
4.

recently moved in with Hartery. Coupled with Leonard’s romantic relationship with 

Hartery, this turn of events caused [appellant] great distress and anger. When [appellant] 

arrived at Hartery’s home, he threw two Molotov cocktails through a front window and 

into Hartery’s living room. [Appellant] then entered the home through the broken 

window. Awakened perhaps by the sound of breaking glass or the smell of fire from one 

of the incendiary devices, Hartery made his way into the living room. [Appellant] 

attacked him from behind, hitting Hartery in the head with an axe and then, with a knife, 

stabbing Hartery first in the back and later in the chest. Leonard also entered the living 

room; appellant chased her into another room of the house and stabbed her three times in 

the back. At some point, [appellant] took his [child], left Hartery’s home, and drove 

away. Hartery and Leonard died from the wounds [appellant] inflicted.” (Fegan I, 

supra, F025279.)

At approximately 7:00 a.m., appellant drove up to his father’s house in Roseville. 

An officer was there and talking to his father about his earlier report. Appellant entered 

the house, looked at his father, and started crying. There was a large amount of blood on 

his clothes. Appellant was wearing a work glove on his right hand, blood was dripping 

out of the glove, and there was a cut on his hand. Appellant’s four-year-old child was 

with him. There was blood on the child’s legs, but he was not physically injured. The 

child appeared to be in shock and said he had seen a fire and a fight.

There was blood throughout the interior of the father’s car. A red gasoline can 

was found in the car, and appellant’s father said it had been kept in his garage. 

Appellant’s father reported his axe and a couple of his Mason jars were missing.

An axe and a knife were found at the crime scene. The axe had glass particles in 

the handle and was identified as belonging to appellant’s father. The blood on the axe 

head was identified as primarily belonging to appellant, with small amounts from a 

mixture of Leonard and Hartery. The knife’s handle contained the blood of appellant and 

Leonard, and Hartery’s blood was on the blade. The landlord of Hartery’s house testified 
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she often visited the residence, was familiar with the kitchen, and had never seen that 

knife there.

Appellant was immediately taken into custody at his father’s house and

transported to the police department. When an officer walked past the jail’s booking 

room, appellant asked if he could talk to him. After being advised of and waiving his 

constitutional rights, appellant calmly and deliberately told the officer, “ ‘I don’t know 

what happened to me. I don’t know why I did what I did. I’m not crazy or anything, but 

I must have been out of my mind.... [¶] ... [¶] I just don’t know why I had to do this 

now ....” (Fegan I, supra, F025279.)

Appellant was booked into the county jail. During a visit with his father, appellant 

told him that he threw the axe through Hartery’s window and entered the house through 

the broken window. He wrestled with Hartery, Leonard was stabbed in the back with the 

knife while he was struggling with Hartery, he continued to wrestle with Hartery, and he 

was knocked down. Appellant said he picked up the axe and hit Hartery in the head.

Defense Evidence

Appellant did not testify at his trial. Robert Bittle, a psychiatrist and an expert in 

forensic psychiatry, testified he reviewed appellant’s medical records and personal and 

family history, investigative reports of the murders, and conducted a four-hour 

examination of appellant. Dr. Bittle testified to his opinion that at the time of the 

murders, appellant suffered from manic depression, postconcussive syndrome, chronic 

neck pain, and alcohol dependency. He further believed that during the murders, 

appellant had a “mixed bipolar episode ... he was both depressed and he was 

hypomanic.” (Fegan I, supra, F025279.)

PROCEDURAL SUMMARY

On October 4, 1994, an information was filed in the Superior Court of Merced 

County charging appellant with counts 1 and 2, the murders of Leonard and Hartery 

(§ 187), with two enhancements for personal use of a deadly or dangerous weapon in the 
6.

commission of the murders, a knife and an axe (§ 12022, subd. (b)). The following three 

special circumstances were alleged as to counts 1 and 2: (1) the murders were committed 

during the commission, attempted commission, or immediate flight after the commission 

or attempted commission, of burglary (§ 190.2, subd. (a)(17)(vii)) and (2) arson (§ 190.2, 

subd. (a)(17)(viii)), and (3) that multiple murders were committed (id., subd. (a)(3)).

Appellant was separately charged with count 3, burglary (§ 459), count 4, arson 

(§ 451, subd. (b)), and count 5, unlawful taking of his child (§ 277), with two 

enhancements alleged as to each count, that he personally used a deadly or dangerous 

weapon, a knife and an axe (§ 12022, subd. (b)). No other defendants were charged in 

the case.

On September 15, 1995, it was stipulated the People would not seek the death 

penalty.

Commencement of Trial and Jury Instructions

On November 28, 1995, appellant’s jury trial began with the presentation of 

evidence. Defendant was tried by himself without any codefendants.

The jury received CALJIC No. 8.10, that appellant was charged with murder in 

counts 1 and 2, and that “[e]very person who unlawfully kills a human being with malice 

aforethought or during the commission or attempted commission of burglary or arson is 

guilty of the crime of murder,” the prosecution must prove a person was killed, the killing 

was unlawful, “the killing was committed with malice aforethought or occurred during 

the commission or attempted commission of burglary or arson,” and that “the prosecutor 

has elected to proceed under both theories,” the “first of which is alleged to be murder 

with malice aforethought.”

The jury was instructed on express and implied malice (CALJIC No. 8.11), the 

definitions of premeditation and deliberation for first degree murder (CALJIC No. 8.20),

and the definition of second degree murder (CALJIC Nos. 8.30, 8.31). CALJIC No. 8.71 

stated that if the jury was convinced beyond a reasonable doubt “that the crime of murder 
7.

has been committed by a defendant, but you have a reasonable doubt whether such 

murder was of the first or second degree, you must give defendant the benefit of that 

doubt and return a verdict fixing the murder as of the second degree.”

CALJIC No. 8.21 stated that “another theory by which the prosecution is 

attempting to prove the defendant is guilty of first degree murder is referred to as felony 

murder. [¶] Felony murder is the unlawful killing of a human being, whether intentional, 

unintentional or accidental, which occurs during the commission or attempted 

commission of the crime of burglary or arson when the defendant had the specific intent 

to commit the crime of burglary or arson,” and the definitions for arson and burglary 

were stated in separate instructions. (Italics added.)

The jury was instructed on the special circumstances (CALJIC No. 8.80) – that if 

the jury found defendant guilty of first degree murder, it had to determine whether the 

special circumstances were true, “that the first degree murder was committed by the 

defendant while the defendant was engaged in the commission of burglary. That the first 

degree murder was committed by the defendant while the defendant was engaged in the 

commission of arson and that said murders were multiple murders.” (Italics added.)

CALJIC No. 8.81.17 defined both the burglary and arson special circumstances –

that “first degree murder was committed while the defendant was engaged in ... the 

commission or attempted commission of a burglary or an arson; or [¶] [t]hat first degree 

murder was committed during the immediate flight after the commission or attempted 

commission of a burglary or an arson; and [¶] [t]he first degree murder was committed in 

order to carry out or advance the commission of the crime of burglary or arson or to 

facilitate the escape therefrom or to avoid detection. In other words, the special 

circumstance referred to in these instructions is not established if the commission or 

attempted commission of burglary or arson were merely incident to the commission of 

first degree murder,” and burglary and arson were defined in separate instructions.
8.

To find the multiple murder special circumstance true, the jury had to find that the 

defendant “has in this case committed one crime of murder of the first degree and the 

other death is the crime of murder of the first or second degree.”

The jury was separately instructed with the definitions of count 3, burglary 

(CALJIC Nos. 14.50, 14.51, 14.52); count 4, arson (CALJIC Nos. 14.80, 14.84, 14.89, 

14.91); and count 5, unlawful taking of a child (CALJIC No. 9.70.5).

The jury also received defense instructions. CALJIC No. 3.32 stated evidence had 

been received “regarding a mental disease, mental defect or mental disorder of the 

defendant at the time of the commission of the crimes charged,” and such evidence was 

solely to determine whether or not “the defendant actually formed the required specific 

intent, premeditated, deliberated or harbored malice aforethought which are elements of 

the crimes charged.” (Italics added.) CALJIC No. 4.40 stated that a person was not 

guilty of a crime “when he engages in conduct, otherwise criminal, when acting under 

threats and menaces” (italics added), where the threats are menaces are such they would 

cause a reasonable person to fear his life would be in immediate danger if he did not 

engage in the conduct charged, and such person “believed his life was so endangered.” If 

there was evidence of provocation that induced an unlawful killing, but was not sufficient 

to reduce the homicide to manslaughter, the jury could consider the provocation to 

determine if the defendant acted with premeditation and deliberation.

The jury was not instructed on the difference between principals, accomplices, and 

accessories. The jury was not instructed on aiding and abetting, conspiracy, the natural 

and probable consequences doctrine, or that a coparticipant committed the underlying 

felony offenses of arson and/or burglary.

Closing Arguments

In closing argument, the prosecutor argued the evidence showed appellant decided 

to kill Leonard and Hartery, “[h]e devised a plan and carried it out, murdering [them] in a 
9.

most brutal manner,” the People proved beyond a reasonable doubt that appellant “in fact 

did commit those murders,” and he was guilty of two counts of first degree murder.

In defense counsel’s closing argument, he conceded that “[w]hat [appellant] did 

was absolutely wrong,” the homicides were not justifiable, and appellant “doesn’t come 

in here claiming to be innocent. Mr. Fegan is guilty. Mr. Fegan admits his guilt to you.” 

Counsel argued appellant suffered from a mental disease, the issue was his intent, and he 

did not intend to kill Leonard and Hartery.

Counsel further argued the People failed to meet the burden of proving 

premeditation and the special circumstances, and appellant, in his own mind, may have 

believed he had “just cause” to take his child. He did not intend to burn down the house, 

and instead intended to divert Hartery from killing him as he took his child. Defense 

counsel argued the homicides constituted manslaughter and not murder.

Convictions and Sentence

On December 13, 1995, the jury convicted appellant of counts 1 and 2, the first 

degree murders of Leonard and Hartery (§ 187). The jury found true the three special 

circumstances that the murders were committed in the commission, attempted 

commission, or immediate flight after the commission of a burglary (§ 190.2, 

subd. (a)(17)(vii)); an arson (id., subd. (a)(17)(viii)); and multiple murders were 

committed (id., subd. (a)(3)). As to count 1, the jury found true that appellant personally 

used a deadly or dangerous weapon, a knife, in the murder of Leonard; and as to count 2, 

he used both a knife and an axe in the murder of Hartery (§ 12022, subd. (b)).

Appellant was also convicted of count 3, burglary (§ 459), count 4, arson of an 

inhabited structure (§ 451, subd. (b)), and count 5, unlawfully taking a child without a 

legal right (§ 277).

On January 16, 1996, Judge Cornell, who presided over the jury trial, conducted 

the sentencing hearing. The court imposed an aggregate determinate term of nine years 

four months for counts 3, 4, and 5, to be served first. As to each of counts 1 and 2, the 
10.

court imposed two consecutive, indeterminate LWOP terms, plus one year for the 

personal use enhancements.

Direct Appeal

In his direct appeal, appellant argued there were alleged evidentiary errors and his 

convictions were not supported by substantial evidence. On December 31, 1997, this 

court filed the nonpublished opinion that affirmed the judgment. (Fegan I, supra, 

F025279.)

We held there was overwhelming evidence to support the jury’s findings of 

premeditation and deliberation for his two convictions of first degree murder. “Although 

[appellant] argues that a sudden burst of violence on his part and nothing more 

precipitated the killing of Leonard and Hartery, the record refutes this assertion.” 

(Fegan I, supra, at p. *4, italics added.) There was “ample evidence” that appellant 

planned to kill Hartery. “By approximately midnight on the day of the murders, 

[appellant] decided ‘to do this commando rescue’ ‘to get [his child] out of there and get 

[his] wife.’ Sometime before 4:30 on the morning of the murders, [appellant] took his 

father’s car without permission. To avoid waking his father, [appellant] manually opened 

the garage door and pushed the vehicle out of the garage without turning on the car’s 

ignition.3 Before leaving his father’s house, [appellant] also took with him an axe, a 

knife, two glass jars, and a gasoline can. He then drove to Hartery’s house in Merced, 

where he expected to find his estranged wife, his [child], and Hartery. He had decided by

this time to confront Hartery, whom [appellant] considered ‘a mortal enemy’ (emphasis 

added).” (Ibid.)

3 “Much of the planning evidence came from [appellant’s] own words in response 

to questions posed by a defense investigator. The trial court admitted a transcript of the 

taped interview conducted in April 1994 into evidence and without limitation.” (Fegan I, 

supra, F025279, p. *4, fn. 5.)
11.

“Once he arrived at Hartery’s home, [appellant] first used the axe to break and 

knock out the front window. He then ignited at least one of the glass jars, which he had 

fashioned into an incendiary device, and threw it into the house through the broken 

window. [Appellant] then entered the house through the same window. When Hartery 

entered the front room in an apparent effort to put out the fire, [appellant] approached 

Hartery from behind and used the axe to hit Hartery in the head. The blow probably 

knocked Hartery to the ground and perhaps rendered him unconscious. [Appellant] then 

used the knife to repeatedly stab Hartery.” (Fegan I, supra, F025279, at p. *5.) 

“[Appellant], by his own admission, used the Molotov cocktails to start the fire in order 

to create a diversion. Indeed, it was when Hartery entered the front room in an apparent 

effort to put out the fire that [appellant] began his assault by ambush against Hartery.” 

(Id. at p. *9.)

This court found “persuasive evidence that [appellant] planned to kill Leonard. In 

addition to the steps [appellant] took before he arrived at the Hartery home, [appellant] 

turned his attention toward his estranged wife after attacking Hartery. He chased her 

from the living room into the dining room, where he stabbed her in the back. 

[Appellant’s] act of chasing Leonard while armed alone warrants a conclusion that he had 

a plan, however briefly contrived, to attack and kill her. [Citation.]” (Fegan I, supra, 

F025279, at p. *5, fn. omitted.)

The record was also “replete with evidence about [appellant’s] prior relationship 

with Leonard and Hartery from which the jury could legitimately and reasonably have 

inferred that [appellant] was motivated by hatred and jealousy to kill both his victims. 

[Citation.] [Appellant] blamed Leonard for everything that was wrong in their 

relationship. In [appellant’s] mind, his wife had leaned on him for support. Then, she 

found a good job at a time when he could not find work. Following their separation, 

Leonard moved with the couple’s son to Merced, where she met and became involved 

with Hartery. [Appellant] grew increasingly agitated and angry about Leonard’s 
12.

relationship with Hartery. [Appellant] was distraught that his wife and [child] had moved 

in with Hartery. [Appellant] told Leonard they were still married and she could not live 

with Hartery.” (Fegan I, supra, F025279 at pp. *5–*6.) “Shortly before he went on his 

deadly rampage, [appellant] expressed his contempt for Leonard and Hartery .... 

[Appellant] suspected Hartery wanted, and was trying, to be the [child’s] father. 

[Appellant] admitted he went so far as to call and threaten Hartery ‘ “to stay the f[**]k 

away from my family or I would knock his block off.” ’ ” (Id. at p. *6.)

“The multiple stab wounds and the brutality of [appellant’s] attack on both victims 

support a finding of premeditated murder in each instance. [Citation.]” (Fegan I, supra, 

F025279 at p. *6.) “[Appellant] used the items he took from his father’s home to 

facilitate his attacks on both of his victims. After using the axe to render Hartery 

helpless, [appellant] repeatedly stabbed him in the back, puncturing Hartery’s liver. He 

also slit Hartery’s throat, severing his carotid artery and jugular vein. Later, after killing 

his wife, [appellant] again attacked Hartery by stabbing him in the chest so as to puncture 

the lung and sever the heart vessels. [Appellant] left the knife in Hartery’s chest. [¶] 

After his initial attack on Hartery, [appellant] chased his estranged wife from the living 

room to the dining room. When he caught up with her, he stabbed her in the back, 

cutting two ribs and puncturing the lung and aorta. She suffered a total of three stab 

wounds.” (Id. at pp. *6–*7.) “[T]here was more than enough evidence to justify a 

conclusion that [appellant] killed his victims willfully as well as with premeditation and 

deliberation so as to warrant the jury’s return of both first degree murder verdicts.” (Id. 

at p. *7.)

The California Supreme Court denied appellant’s petition for review.

SENATE BILL NO. 1437

As will be fully discussed below, Senate Bill No. 1437 (2017–2018 Reg. Sess.) 

(Senate Bill 1437) went into effect on January 1, 2019, and amended section 189, 

subdivision (e) to state that “a participant in the qualifying felony is liable for felony 
13.

murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with 

the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the 

underlying felony and acted with reckless indifference to human life.” (People v Harden

(2022) 81 Cal.App.5th 45, 50–51; People v. Strong (2022) 13 Cal.5th 698, 707–708 

(Strong).) “The Legislature also amended the natural and probable consequences 

doctrine by adding subdivision (a)(3) to section 188, which states that ‘[m]alice shall not 

be imputed to a person based solely on his or her participation in a crime.’ ” (People v 

Harden, supra, 81 Cal.App.5th 45, 50–51; Strong, supra, 13 Cal.5th at pp. 707–708.)

Senate Bill 1437 also created a petitioning process codified in former 

section 1170.95, that permitted a defendant “with an existing conviction for felony 

murder or murder under the natural and probable consequences doctrine to petition the 

sentencing court to have the murder conviction vacated and to be resentenced on any 

remaining counts if he or she could not have been convicted of murder as a result of the 

other legislative changes implemented by Senate Bill ... 1437.” (People v. Flores (2020) 

44 Cal.App.5th 985, 992.)

APPELLANT’S FIRST PETITION FOR RESENTENCING

“On January 9 and 31, 2019, [appellant] filed petitions for writ of habeas corpus. 

In part, [appellant] asked the court to recall his sentence pursuant to [former] 

section 1170.95,” and raised claims of alleged trial errors. (People v. Fegan, Aug. 3, 

2021, F081054 [nonpub. opn.] p. *3, italics added (Fegan II).)

“The People responded the court should summarily deny [appellant’s] request for 

resentencing based on the passage of Senate Bill ... 1437 ... because he did not qualify 

for relief under [former] section 1170.95. They attached and referred to our appellate 

opinion from [appellant’s] direct appeal, which included a statement of facts that was 

‘essentially undisputed’ .... The People explained the record thus established defendant 

was the actual killer and, therefore, was not entitled to relief.” (Fegan II, supra, 

F081054, at p. *3.)
14.

The Court’s Denial of Appellant’s First Petition

“The [trial] court denied the petitions for writs of habeas corpus on February 28, 

2019, finding [appellant] had not set forth the requisite facts for the granting of the 

petition. With regard to [appellant’s] claim for relief under [former] section 1170.95, the 

court reasoned that [appellant] was not convicted under a felony-murder theory. Rather, 

‘[h]e was convicted of two premeditated and deliberate murders, with multiple special 

circumstances under section 190.2(d). He was the actual killer.’ ” (Fegan II, supra, 

F081054, at p. *4, italics added)

APPELLANT’S SECOND, THIRD, AND FOURTH 

PETITIONS FOR RESENTENCING

“Approximately a year later, [on] February 26, 2020, [appellant] filed a [second] 

petition for resentencing pursuant to [former] section 1170.95 using a preprinted form. 

He checked boxes stating that a charging document had been filed against him allowing 

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

consequences doctrine; at trial, he was convicted of first or second degree murder under a 

felony-murder theory or the natural and probable consequences doctrine; and he could 

not now be convicted of murder in light of changes made to sections 188 and 189, 

effective January 1, 2019 (pursuant to Senate Bill 1437),” and requested appointment of 

counsel. (Fegan II, supra, F081054, at p. *4.)

On March 2, 2020, prior to receiving a ruling on his second petition, “appellant 

filed [a third] petition for resentencing pursuant to [former] section 1170.95 using a 

preprinted form. He again checked boxes stating a charging document had been filed 

against him allowing the prosecution to proceed under a felony-murder theory or the 

natural and probable consequences doctrine; at trial, he was convicted of first or second 

degree murder under a felony-murder theory or the natural and probable consequences 

doctrine; and he could not now be convicted of murder in light of changes made to 
15.

sections 188 and 189, effective January 1, 2019 (pursuant to Senate Bill 1437),” and 

requested appointment of counsel. (Fegan II, supra, F081054, at p. *4.)

On or about March 5, 2020, appellant “again filed another petition for 

resentencing pursuant to [former] section 1170.95 using a preprinted form and checking 

the same boxes,” that constituted his fourth petition. (Fegan II, supra, F081054, at 

pp. *4–*5.)

The Trial Court’s Denial of Appellant’s Second, Third and Fourth Petitions

The trial court denied appellant’s second, third, and fourth petitions for 

resentencing in light of the denial of his first petition, because they were “successive 

petitions on the same issue.”

This Court Affirms the Denials of Appellant’s Petitions

On August 3, 2021, this court filed the nonpublished opinion in Fegan II, supra, 

F081054, that affirmed the trial court’s order that denied appellant’s second, third, and 

fourth petitions for resentencing. We held the trial court’s failure to appoint counsel was 

not prejudicial because “the record established [appellant] was the actual killer, and the 

jury’s true findings on the felony-murder special-circumstance enhancements rendered 

[appellant] ineligible for relief as a matter of law. Thus, the court did not err in denying 

[appellant’s] petitions, and any alleged procedural errors were harmless.” (Fegan II, 

supra, F081054, at p. *8.)

As a separate matter, this court stated that “the record reflects, and [appellant] 

does not contest, that he was the actual killer. Thus, he was also ineligible for relief as a 

matter of law under [former] section 1170.95 on that basis. Accordingly, the court did 

not error in denying his petition, and any alleged procedural error in failing to appoint ... 

counsel during the petition process was harmless....” (Fegan II, supra, F081054, at 

p. *11, italics added)
16.

APPELLANT’S FIFTH PETITION FOR RESENTENCING

(Pending Appeal in Case No. F083507)

On November 12, 2021, appellant, again acting in pro. per., filed a fifth petition 

for resentencing of his murder convictions under former section 1170.95, and requested 

appointment of counsel.

Appellant’s supporting declaration consisted of a preprinted form where he 

checked boxes that stated (1) he was eligible for resentencing because a complaint, 

information, or indictment was filed that allowed the prosecution to proceed under a 

theory of felony murder or murder under the natural and probable consequences doctrine; 

(2) at trial, he was convicted of first or second degree murder pursuant to the felony 

murder rule or the natural and probable consequences doctrine; (3) he could not be 

convicted now of first or second degree murder because of changes made to sections 188 

and 189, effective January 1, 2019; and (4) he could not be convicted of first degree 

murder because of the changes made to section 189 because he did not, with the intent to 

kill, act, abet, counsel, command, induce, solicit, request, or assist the actual killer in the 

commission of first degree murder; and the victim was not a peace officer.

Appellant did not check the box on the preprinted form that stated he was not the 

actual killer.

The Trial Court’s Order

On November 29, 2021, the trial court filed an order that summarily denied 

appellant’s fifth petition because it was “a successive petition. This court previously 

denied this petition, and [appellant] appealed to the Fifth Appellate District. On October 

14, 2021, the appellate court issued a remittitur. The appellate court found that 

[appellant] is categorically ineligible for relief under ... section 1170.95. The appellate 

court upheld this court’s ruling. As such, this petition is denied.”
17.

On December 22, 2021, appellant filed a notice of appeal from the trial court’s 

order of November 24, 2021 (F083705), which is the subject of part of the instant 

consolidated appeal.

APPELLANT’S SIXTH PETITION FOR RESENTNCING

(Pending Appeal in Case No. F085192)

On August 17, 2022, appellant, again acting in pro. per., filed his sixth petition for 

resentencing in the trial court pursuant to section 1172.6, while his appeal from the denial 

of his fifth petition was pending before this court in case No. F083507. He requested 

appointment of counsel.

Appellant filed a supporting declaration that consisted of a preprinted form where 

he checked boxes that (1) he was eligible for resentencing because a complaint, 

information, or indictment was filed against him that allowed the prosecution to proceed 

under a theory of felony murder, murder under the natural and probable consequences 

doctrine or other theory under which malice is imputed to a person based solely on that 

person’s participation in a crime, or attempted murder under the natural and probable 

consequences doctrine; (2) he was convicted of murder, attempted murder, or 

manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could 

have been convicted of murder or manslaughter; and (3)he could not presently be 

convicted of murder or attempted murder because of changes made to sections 188 and 

189, effective January 1, 2019. (F085192, CT 76-77)

The Trial Court’s Denial of the Petition

On or about October 5, 2022, the trial court filed an order that summarily denied 

appellant’s sixth petition “with prejudice” because appellant could not “re-litigate what 

has already been reviewed on appeal. The Fifth District Court of Appeal held that ‘the 

record conclusively establishes [appellant] was ineligible for relief under [former] 

section 1170.95 as a matter of law as he was convicted under still-valid theories of 

murder.’ ”
18.

On October 26, 2022, appellant filed a notice of appeal from the trial court’s order 

of October 5, 2022 (case No. F085192), which is the other part of the instant consolidated 

appeal.

APPELLATE ISSUES

Appellant has two appeals pending before this court that have been consolidated, 

and the parties have filed separate briefs in the two cases.

In case No. F083507, the appeal from the trial court’s denial of appellant’s fifth 

petition for resentencing, appellate counsel filed a brief with this court pursuant to Wende

and Delgadillo. The brief also included counsel’s declaration that appellant was advised 

he could file his own brief with this court. This court sent appellant an order that he 

could file a supplemental letter or brief raising any arguable issues. Appellant filed a 

lengthy supplemental brief, raising claims of error arising from both his jury trial and the 

denial of his fifth petition.

In case No. F085192, the appeal from the trial court’s denial of appellant’s sixth 

petition, appellate counsel filed a brief that raised one issue – that the trial court lacked 

jurisdiction and its order was “null and void” because appellant’s appeal from the denial 

of his fifth petition was still pending before the appellate court at the time of the trial 

court’s ruling.

DISCUSSION

I. Senate Bill Nos. 1437 and 775, and Section 1172.6

We begin with Senate Bill 1437’s (2017–2018 Reg. Sess.) amendments of sections 

188 and 189, the enactment of former section 1170.95, and subsequent statutory 

amendments.

As discussed above, Senate Bill 1437 went into effect on January 1, 2019, and 

“amended the felony-murder rule by adding section 189, subdivision (e). [Citation.] It 

provides that a participant in the qualifying felony is liable for felony murder only if the 

person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, 
19.

acted as a direct aider and abettor; or (3) was a major participant in the underlying felony 

and acted with reckless indifference to human life. [Citation.] The Legislature also 

amended the natural and probable consequences doctrine by adding subdivision (a)(3) 

to section 188, which states that ‘[m]alice shall not be imputed to a person based solely 

on his or her participation in a crime.’ ” (People v Harden, supra, 81 Cal.App.5th at 

pp. 50–51; 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,” initially 

codified in former section 1170.95. (Strong, supra, 13 Cal.5th at p. 708; People v. Lewis

(2021) 11 Cal.5th 952, 959.) The initial version of former section 1170.95 permitted “a 

person with an existing conviction for felony murder or murder under the natural and 

probable consequences doctrine to petition the sentencing court to have the murder 

conviction vacated and to be resentenced on any remaining counts if he or she could not 

have been convicted of murder as a result of the other legislative changes implemented 

by Senate Bill ... 1437.” (People v. Flores, supra, 44 Cal.App.5th at p. 992.)

Effective January 1, 2022, Senate Bill No. 775 (Reg. Sess. 2020–2021) (Senate 

Bill 775) made substantive amendments to former section 1170.95 that were consistent 

with People v. Lewis, supra, 11 Cal.5th 952, and also “ ‘clarified that persons who were 

convicted of attempted murder or manslaughter under a theory of felony murder and the 

natural and probable consequences doctrine are permitted the same relief as those persons 

convicted of murder under the same theories.’ ” (People v. Birdsall (2022) 77 

Cal.App.5th 859, 865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.)

On June 30, 2022, the statute was renumbered as section 1172.6 without further 

substantive changes. (People v. Saibu, supra, 81 Cal.App.5th at p. 714.)

Section 1172.6, subdivision (a) thus states:

“(a) A person convicted of felony murder or murder under the 

natural and probable consequences doctrine or other theory under which 
20.

malice is imputed to a person based solely on that person’s participation in 

a crime, attempted murder under the natural and probable consequences 

doctrine, or manslaughter may file a petition with the court that sentenced 

the petitioner to have the petitioner’s murder, attempted murder, or 

manslaughter conviction vacated and to be resentenced on any remaining 

counts when all of the following conditions apply:

“(1) A complaint, information, or indictment was filed against the 

petitioner that allowed the prosecution to proceed under a theory of felony 

murder, murder under the natural and probable consequences doctrine or 

other theory under which malice is imputed to a person based solely on that 

person’s participation in a crime, or attempted murder under the natural and 

probable consequences doctrine.

“(2) The petitioner was convicted of murder, attempted murder, or 

manslaughter following a trial or accepted a plea offer in lieu of a trial at 

which the petitioner could have been convicted of murder or attempted 

murder.

“(3) The petitioner could not presently be convicted of murder or 

attempted murder because of changes to Section 188 or 189 made effective 

January 1, 2019.” (§ 1172.6, subd. (a).)4

The court shall appoint counsel if requested by petitioner. (§ 1172.6, subd. (b)(3).) 

After service of the petition, the prosecutor shall file and serve a response. The petitioner 

may file and serve a reply after the response is served. (Id., subd. (c).)

“After the parties have had an opportunity to submit briefings, the court shall hold 

a hearing to determine whether the petitioner has made a prima facie case for relief. If 

the petitioner makes a prima facie showing that the petitioner is entitled to relief, the 

court shall issue an order to show cause. If the court declines to make an order to show 

cause, it shall provide a statement fully setting forth its reasons for doing so.” (§ 1172.6, 

subd. (c).)

To demonstrate prejudice from the denial of a section 1172.6 petition before the 

issuance of an OSC, the petitioner must show it is reasonably probable that, absent the 

4 While not applicable herein, section 189 was amended to allow for felonymurder liability where the victim is a peace officer. (§ 189, subd. (f).)
21.

error, his petition would not have been summarily denied without an evidentiary hearing. 

(Lewis, supra, 11 Cal.5th at pp. 972–974; People v. Watson (1956) 46 Cal.2d 818, 836.)

If an order to show cause (OSC) is issued, “the court shall hold a hearing to 

determine whether to vacate the murder, attempted murder, or manslaughter conviction 

and to recall the sentence and resentence the petitioner on any remaining counts in the 

same manner as if the petitioner had not previously been sentenced, provided that the 

new sentence, if any, is not greater than the initial sentence....” (§ 1172.6, subd. (d)(1).)

“At the hearing to determine whether the petitioner is entitled to relief, the burden 

of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the 

petitioner is guilty of murder or attempted murder under California law as amended by 

the changes to Section 188 or 189 made effective January 1, 2019. The admission of 

evidence in the hearing shall be governed by the Evidence Code, except that the court 

may consider evidence previously admitted at any prior hearing or trial that is admissible 

under current law, including witness testimony, stipulated evidence, and matters 

judicially noticed. The court may also consider the procedural history of the case recited 

in any prior appellate opinion. However, hearsay evidence that was admitted in a 

preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the 

hearing as hearsay, unless the evidence is admissible pursuant to another exception to the 

hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence 

to meet their respective burdens....” (§ 1172.6, subd. (d)(3).)5

5 “If such evidence may not be considered at an evidentiary hearing to determine a 

petitioner’s ultimate eligibility for resentencing, we fail to see how such evidence could 

establish, as a matter of law, a petitioner’s ineligibility for resentencing” in determining 

whether he made a prima facie case for relief. (People v. Flores (2022) 76 Cal.App.5th 

974, 988.)
22.

II. Appellant was Ineligible for Resentencing as a Matter of Law

Before we address appellant’s specific contentions in this consolidated appeal, we 

review the record of conviction to determine whether the trial court correctly denied 

appellant’s numerous petitions without issuing an OSC.

The prima facie inquiry under section 1172.6, subdivision (c) is “limited.” (Lewis,

supra, 11 Cal.5th at p. 971.) 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.” ’ [Citations.] ‘[A] court should not reject the petitioner’s factual 

allegations on credibility grounds without first conducting an evidentiary hearing.’ 

[Citations.] ‘However, if 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.” ’ ” (Ibid.)

In determining whether a petitioner made a prima facie case, the court may review 

the record of conviction “to distinguish petitions with potential merit from those that are 

clearly meritless.” (Lewis, supra, 11 Cal.5th at pp. 971–972 & fn. 6.) As explained 

above, the record and opinion from a petitioner’s direct appeal are part of the record of 

conviction. (Id. at p. 972.) The role of the appellate opinion is limited, however, and the 

court may not rely on factual summaries contained in prior appellate decisions or engage 

in fact finding at the prima facie stage. (People v. Clements, 75 Cal.App.5th at 

p. 292; Lewis, at p. 972.)

A petitioner convicted of murder is ineligible for resentencing, and the petition 

may be denied without issuing an OSC, if the record of conviction conclusively 

establishes, with no factfinding, weighing of evidence, or credibility determinations, that 

the petitioner was the actual killer. (§§ 188, subd. (a)(3), 189, subd. (e); Lewis, supra, 

11 Cal.5th at p. 971; People v. Gentile (2020) 10 Cal.5th at 830, 842–843; People v.

Lopez (2022) 78 Cal.App.5th 1, 14–15.) Even if convicted under the felony-murder rule, 
23.

the petitioner is ineligible for resentencing if he was the actual killer. (§§ 188, subd. (a); 

189, subd. (e)(1); 1172.6, subd. (a)(3).)

“The record of conviction will necessarily inform the trial court’s prima facie 

inquiry under section [1172.6], allowing the court to distinguish petitions with potential 

merit from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.) The 

record of conviction includes the charging documents, the jury instructions (People v.

Williams (2022) 86 Cal.App.5th 1244, 1251–1252; People v. Offley (2020)

48 Cal.App.5th 588, 599; People v. Harden, supra, 81 Cal.App.5th at pp. 50, 54–55), the 

closing arguments, and the verdict. (People v. Lopez, supra, 78 Cal.App.5th at p. 13; 

People v. Ervin (2021) 72 Cal.App.5th 90, 106; People v. Jenkins (2021) 70 Cal.App.5th 

924, 935.)

Analysis

In this case, the information, the jury instructions, closing arguments, and verdict 

establish appellant was prosecuted solely under the theory that he was the actual killer 

and the only person who committed the two murders, the burglary, the arson, and other 

charged offenses. Appellant was the only person charged in the information. The jury 

was not instructed on the liability of accomplices, accessories, conspiracy, or aiders and 

abettors, or not to speculate about any uncharged parties.

While the court instructed the jury with CALJIC No. 8.21 on the felony-murder 

rule, the prosecution’s theory was that appellant was the only person who committed the 

two murders, the burglary, and the arson. The jury was instructed: “Felony murder is the 

unlawful killing of a human being, whether intentional, unintentional or accidental, which 

occurs during the commission or attempted commission of the crime of burglary or arson 

when the defendant had the specific intent to commit the crime of burglary or arson....” 

(Italics added.) The instructions on the special circumstances stated that if the jury found 

defendant guilty of first degree murder, it had to determine if “the first degree murder 

was committed by the defendant while the defendant was engaged in the commission of 
24.

burglary, that the first degree murder was committed by the defendant while the 

defendant was engaged in the commission of arson and that said murders were multiple 

murders.” (Italics added.) CALJIC No. 8.81.17 further defined both the burglary and 

arson special circumstances – that “first degree murder was committed while the 

defendant was engaged in ... the commission or attempted commission of a burglary or 

an arson; or [¶] [t]hat first degree murder was committed during the immediate flight 

after the commission or attempted commission of a burglary or an arson....” (Italics 

added.)

A defendant may be convicted of felony murder under section 189, subdivision (e) 

and still be ineligible for relief under section 1172.6 if the record of conviction 

establishes he was the actual killer. (People v. Lopez, supra, 78 Cal.App.5th at pp. 15–

16.) The felony-murder instructions expressly stated the jury had to find appellant 

committed the murders while he was committing burglary and/or arson. In addition, the 

court gave the defense instructions requested by appellant, that evidence had been 

received “regarding a mental disease, mental defect or mental disorder of the defendant at 

the time of the commission of the crimes charged,” and such evidence was solely to 

determine whether or not “the defendant actually formed the required specific intent, 

premeditated, deliberated or harbored malice aforethought which are elements of the 

crimes charged.” (Italics added.) CALJIC No. 4.40 stated a person was not guilty of a 

crime “when he engages in conduct, otherwise criminal, when acting under threats and 

menaces,” where the threats are menaces are such that they would cause a reasonable 

person to fear his life would be in immediate danger if he did not engage in the conduct 

charged, and such person “believed his life was so endangered.” (Italics added.)

The parties’ closing arguments were based upon the jury instructions, that 

appellant was the actual killer. The prosecutor argued the evidence showed appellant 

decided to kill Leonard and Herty, and “[h]e devised a plan and carried it out, murdering 

[them] in a most brutal manner.” Defense counsel conceded in closing argument that 
25.

“[w]hat [appellant] did was absolutely wrong,” and appellant “doesn’t come in here 

claiming to be innocent. Mr. Fegan is guilty. Mr. Fegan admits his guilt to you.” 

Counsel argued appellant suffered from a mental disease, he did not intend to kill 

Leonard and Hartery, and he was guilty of manslaughter and not murder.

The record of conviction thus establishes that appellant was charged, tried, and 

convicted as the actual killer, his petitions failed to state a prima facie case, and he was 

ineligible for resentencing under section 1172.6 as a matter of law.

III. Appellant’s Arguments About His Jury Trial and Sentencing Issues

We turn to appellant’s appeal from the trial court’s denial of his fifth petition (case 

No. F083507). As explained above, appellant’s attorney filed a brief pursuant to Wende

and Delgadillo; thereafter, appellant filed a supplemental brief in response to this court’s 

briefing order.

In his supplemental brief, appellant raises several arguments about alleged errors 

that purportedly occurred at his jury trial and sentencing hearing. He also asserts his 

convictions and the special circumstance findings are not supported by substantial 

evidence. Appellant further contends he was not the actual killer, the deaths were 

“accidents,” he was engaged in “mutual combat,” he used “self-defense” on one of the 

victims, and he “fought for his life” over the knife.

These contentions are not cognizable in this appeal. Former section 1170.95 and 

current section 1172.6 do not permit a petitioner to establish eligibility for resentencing 

based on alleged errors leading to his conviction. (People v. DeHuff (2021) 63 

Cal.App.5th 428, 438.) “ ‘The purpose of [section 1172.6] is to give defendants the 

benefit of amended sections 188 and 189 with respect to issues not previously 

determined, not to provide a do-over on factual disputes that have already been 

resolved.’ ” (People v. Farfan (2021) 71 Cal.App.5th 942, 947 (Farfan).)
26.

IV. Appellant’s Arguments About the Trial Court’s Denial of His Fifth Petition

Appellant raises additional issues in his supplemental brief filed in the appeal from 

the denial of his fifth petition (case No. F083705). He asserts he was entitled to file his 

fifth successive petition, despite the denial of his prior petitions, because of changes in 

the law enacted by Senate Bill 775 (2020–2021 Reg. Sess.). He also argues his fifth 

petition should have been granted because the prosecutor relied on the felony-murder 

rule, the natural and probable consequences doctrine, and imputed malice to convict him 

of murder.

Successive Petitions

In Farfan, supra, 71 Cal.App.5th 942, the court addressed when successive 

petitions for resentencing are cognizable. In 2019, the defendant filed a petition for 

resentencing of his murder conviction, shortly after former section 1170.95 was enacted. 

The superior court denied the petition and the defendant did not file an appeal. In 2020, 

the defendant filed a second petition raising the same issues, along with a motion for 

reconsideration, based upon new legal authority that undermined the basis for the 

superior court’s denial of his first petition. The superior court denied both motions. 

(Farfan, at p. 946.)

Farfan held a petitioner may file successive petitions for resentencing under 

former section 1170.95 if the subsequent petitions are based on new legal authority. 

(Farfan, supra, 71 Cal.App.5th at pp. 946–947, 950–951.) Farfan rejected the People’s 

argument that collateral estoppel barred defendant’s second petition, because even the 

People conceded former section 1170.95 contained no express bar to successive petitions 

“where, as here, the subsequent petition rested on new legal authority which challenged 

the basis for the superior court's summary denial of the previous petition.” (Farfan, at 

pp. 946–947, 950, italics added.)

Farfan held the California Supreme Court’s ruling in Lewis, and other cases 

published after appellant’s first petition was denied, demonstrated the “still-evolving state 
27.

of [former] section 1170.95 jurisprudence” and appellant’s second petition was not barred 

by collateral estoppel. (Farfan, supra, 71 Cal.App.5th at p. 950.) “In our view, 

application of collateral estoppel to bar consideration of appellant’s 2020 petition would 

thwart Senate Bill ... 1437’s overall purpose of ensuring that ‘a person’s sentence is 

commensurate with his or her individual criminal culpability’ [citations], and that ‘all 

those entitled to resentencing are able to obtain relief’ [citation]. This is especially true in 

this case, where the superior court never appointed counsel even though appellant filed 

two facially sufficient petitions.” (Ibid.)

Farfan also rejected the People’s claim that a petition filed under former 

section 1170.95 was similar to a petition for writ of habeas corpus. (Farfan, supra, 

71 Cal.App.5th at pp. 950–951.) While successive habeas petitions cannot not be filed on 

the same factual and legal grounds, “the general rule does not apply in habeas 

proceedings when there has been a retroactive change in the law affecting the petitioner. 

[Citation.] As our Supreme Court explains, a change is retroactive when it ‘is substantive 

rather than procedural (i.e., it alters the range of conduct or the class of persons that the 

law punishes, or it modifies the elements of the offense) or when a judicial decision 

undertakes to vindicate the original meaning of the statute.’ ” (Id. at p. 951, italics 

added.) “Under this standard, not only are the changes to the law effected by Senate Bill 

... 1437 themselves retroactive, but judicial interpretations of [former] section 1170.95 

may afford a petitioner grounds for claiming eligibility for relief under the statute that 

were not previously available under other judicial interpretations. Here, because 

appellant’s 2020 petition was based on new authority which challenged the primary 

ground for the superior court’s summary denial of his 2019 petition, the 2020 petition 

was not procedurally barred as a successive petition.” (Ibid.)

While Farfan held the defendant in that case could file a successive petition, it 

also held the defendant was still ineligible for relief as a matter of law. (Farfan, supra, 

71 Cal.App.5th at p. 947.)
28.

Analysis

Appellant asserts he was entitled to file his fifth petition for resentencing because 

of changes in the law enacted by Lewis and Senate Bill 775 (2020–2021 Reg. Sess.).

Appellant’s fifth successive petition was cognizable because of the Supreme 

Court’s decision in Lewis and Senate Bill 775’s procedural amendments to 

section 1172.6, clarifying that in making the prima facie determination, the trial court 

must appoint counsel if requested by defendant, provide for briefing by the parties, 

conduct a hearing on the petition, and give reasons if the court denies the petition without 

issuing an order to show cause. (§ 1172.6, subds. (b), (c).)

When the trial court denied appellant’s fifth successive petition, it gave reasons for 

doing so, but issued a summary denial without granting his request for appointment of 

counsel, allowing for briefing, or conducting a hearing, in violation of Lewis and the 

amendments enacted by Senate Bill 775. Thus, his fifth petition was cognizable based on 

changes in statutory and case authority.

While Senate Bill 775 enacted these procedural requirements, the amendments did 

not change the California Supreme Court’s further holding in Lewis – that to demonstrate 

prejudice from the denial of a section 1172.6 petition before the issuance of an OSC, the 

petitioner must show it is reasonably probable that, absent the error, his petition would 

not have been summarily denied without an evidentiary hearing. (Lewis, supra, 

11 Cal.5th at pp. 972–974; People v. Watson, supra, 46 Cal.2d at p. 836.)

The trial court’s summary denial of appellant’s fifth petition, without appointing 

counsel or conducting a hearing, was not prejudicial because the record of conviction 

established that he was convicted of two counts of first degree murder as the actual killer. 

His fifth petition failed to raise any new case or statutory authority to establish a prima 

facie case that he was eligible for resentencing. His petition was not affected by the 

substantive amendments enacted by Senate Bill 775 because he was not convicted of 

attempted murder or manslaughter based on imputed malice. Appellant was ineligible for 
29.

resentencing as a matter of law, and the trial court’s failure to appoint counsel and 

conduct a hearing was not prejudicial.

We thus affirm the trial court’s denial of his fifth petition in case No. F083705.

V. The Trial Court’s Denial of Appellant’s Sixth Petition

We now turn to appellant’s appeal from the trial court’s order that denied his sixth 

successive petition (case No. F085192). Appellate counsel has filed a brief that raises 

one issue – that the trial court’s order denying the sixth petition “is void for lack of 

subject matter jurisdiction, because the ... court’s order denying the [fifth] petition was 

and is still pending on appeal.”

The Trial Court’s Jurisdiction

Appellant’s argument requires review of two cases: People v. Burhop (2021) 

65 Cal.App.5th 808 (Burhop), and People v. Cress (2023) 87 Cal.App.5th 421 (Cress).

In Burhop, the trial court denied the petitioner’s section 1172.6 petition and he 

filed an appeal. The petitioner filed another section 1172.6 petition before the appellate 

court issued remittitur in that appeal, and the trial court granted relief. (Burhop, supra, 

65 Cal.App.5th at pp. 811–813.) In a People’s appeal, Burhop reversed the trial court’s 

order that granted relief in the successive petition and held that order was “null and void 

for lack of subject matter jurisdiction” because the appeal from the prior petition was 

pending before the appellate court. Burhap remanded the matter for further proceedings. 

(Id. at pp. 813–816.)

In Cress, the trial court denied the petitioner’s first section 1172.6 petition and he 

filed an appeal. While his appeal was pending, the petitioner filed a second 

section 1172.6 petition in the trial court. The trial court dismissed the second petition 

because the appeal from his first petition was still pending. (Cress, supra, 

87 Cal.App.5th at pp. 423–424.) On appeal, petitioner relied on Burhop and argued the 

trial court lacked jurisdiction to dismiss his second petition. Cress rejected the

petitioner’s reliance on Burhop and held the trial court’s dismissal of the second petition, 
30.

“if error at all, was not jurisdictional error. Accordingly, the error was invited. 

[Citation.] [¶] For another thing, petitioner has not shown that he was prejudiced. As 

long as the effect of the dismissal was indistinguishable from the effect of a denial or a 

stay, any error was harmless. The dismissal was plainly without prejudice, as the trial 

court did not intend it to bar further proceedings on the first petition. Accordingly, if, 

after the first appeal is decided, petitioner still wants to proceed on his second petition, all 

he has to do is refile it.” (Cress, supra, 87 Cal.App.5th at p. 425.)

Analysis

Appellant argues that Cress was wrongly decided, and the trial court’s order 

denying his sixth petition was void for lack of subject matter jurisdiction. Appellant 

asserts the court’s order must be reversed and the matter remanded for reconsideration.

As in Cress, however, any error resulting from the trial court’s order denying 

appellant’s sixth successive petition, while his appeal was pending from the denial of his 

fifth petition, was not prejudicial. The alleged error was necessarily invited based upon 

appellant’s repeated conduct of filing successive petitions for resentencing immediately 

after the denial of his previous petitions.

We further note that an issue is arguable on appeal if it has a reasonable potential 

for success and, if resolved favorably for the appellant, the result will either be a reversal 

or a modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.) 

Appellant filed his sixth petition by checking boxes on a preprinted form, claiming he 

stated a prima facie case for resentencing under section 1172.6 because he was 

purportedly convicted of two counts of first degree murder with special circumstances 

based on imputed malice. In this appeal, appellant has not suggested why his sixth 

petition was meritorious, and only requests remand because the judgment was “void.”

The trial court summarily denied appellant’s sixth petition without appointing 

counsel or conducting a hearing. As with his fifth petition, however, the court’s error 

was not prejudicial because appellant’s sixth petition was not based on any changes in 
31.

statutory or case law interpreting section 1172.6. Indeed, the trial court could have 

denied appellant’s sixth petition as an improper successive petition since the record of 

conviction establishes that he was convicted as the actual killer and is ineligible for 

resentencing as a matter of law. (Farfan, supra, 71 Cal.App.5th at pp. 946–947, 950–

951.)

Finally, we note that in contrast to Cress, the trial court denied appellant’s sixth 

petition “with prejudice.” As explained in Farfan, the California Supreme Court’s ruling 

in Lewis and the enactment of Senate Bill 775 demonstrated the “still-evolving state of 

[section 1172.6] jurisprudence,” and new statutory enactments and judicial interpretations 

of the statute “may afford a petitioner grounds for claiming eligibility for relief under the 

statute that were not previously available under other judicial interpretations,” so that a 

new successive petition would not be procedurally barred under those circumstances. 

(Farfan, supra, 71 Cal.App.5th at pp. 950–951.)

We are thus compelled to find the court’s order should be modified to strike the 

phrase that it denied appellant’s sixth petition “with prejudice.” Instead, appellant’s sixth 

petition should have been denied “without prejudice,” but subject to the limiting 

circumstances to filing a new petition only if it is based on new statutory or case authority 

relevant to his two convictions for first degree murder with special circumstances.

DISPOSITION

The trial court’s order of November 29, 2021, denying appellant’s fifth petition for 

resentencing, is affirmed.

The trial court’s order of October 5, 2022, denying appellant’s sixth petition for 

resentencing “with prejudice,” is modified to strike the phrase “with prejudice,” and to 

instead state the petition was denied “without prejudice.” As modified, the court’s order 

is affirmed.