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Filed 10 / 21 / 22 P. v. Owen s CA4/2 Opinion following transfer fro m 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DAMIEN OWENS, Defendant and Appellant. E072711 (Super.Ct.No. INF039223)
OPINION ON TRANSFER

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Reversed and remanded with directions. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta , Attorney s General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Ch arles C. Ragland , Assistant Attorney General, A. Natasha Cortina, Meredith S. White , Lynne G. McGinnis and Alan L.
Amann , Deputy Attorneys General, for Plaintiff and Respondent.2

Defendant and appellant , Damien Ow ens , filed a petition for resentencing purs uant

to former Penal Code section 1170.95, 1 which the court denied. On appeal, defendant contend ed the court committed structural error in denying his petition without allowing him the opportunity to file a reply brief. By opinion filed November 2, 2020, w e affirm ed

. 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 30, 2022, we ordered our decision vacated and set a briefing
sched ule. Defendant argues that (1) the court prejudicially erred by summarily denying his petition without affording him an opportunity to file a reply to the People’s response; and (2) that under Strong , the jury’s true finding on the felony

- murder special ci rcumstance allegation s 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 ) do not preclude him from making a prima facie case for relief

.

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.3

The People concede that due to the de cision in Strong , the court’s error in denying defendant the opportunity to file a reply brief can no longer be deemed harmless. Thus, the People agree the matter must be remanded for further proceedings. We reverse and
remand the matter for reconsiderat ion.

I. PROCEDURAL BACKGROUND 2 On September 11, 2002, “a jury convicted [defendant] of (1) first degree murder with robbery and burglary felony

- murder special circumstance [s] , (2) first degree robbery and (3) first degree burglary. The jury found a principal was armed in the commission of the offenses. ” ( Owens , supra , E033148 , fn. omitted .)
The court sentenced defendant to one year plus life without the possibility of parole. ( Owens , supra , E033148.) Defendant appealed; this court affirmed

. ( Ibi d .)
On February 19, 2019, defendant filed a petition for resentencing pursuant to former section 1170.95. The court appointed counsel to represent defendant.
O n April 17, 2019, the People filed a response to defendant’s petition in which they argu ed that former section 1170.95 was unconstitutional ; they additionally argued defendant was ineligible for relief under former section 1170.95 because t he jury ’s finding on the felony

- murder special circumstance s necessarily reflected its finding that

2 On our own motion, w e take judicial notice of the nonpublished opinion in People v. Owens et al. (Apr. 12, 2005, E033148) [nonpub. opn.] ( Owens ), from defendant’s appeal from the judgment. ( Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).) We exclude a recitation of the facts here as irrelevant to the issues raised on app eal.4

defendant was a major participant in the murder , who a cted with reckless indifference to human life. On April 26, 2019, the court held a hearing on the petition. Defense co unsel declared a conflict. Counsel for the “Conflict Defense Lawyers” indicated he was prepared to accept appointment and requested the matter be stayed until August 16. When asked for comment, the People indicated “there was a robbery/murder special
cir cumstance. CALCRIM s 702 and 703 [ sic ] were given. The jury had to find major participant and reckless indifference.” The court indicated, “Well, there were two specials, but all right. These look like
CALJIC s .” The court confirmed, “I t was [CALJIC] 8.80.1 [that] was given. And it required

— and it says: If you find the defendant was not the actual killer of the human being, or if you’re unable to decide, you must be satisfied beyond a reasonable doubt that
the defendant with the [specific] intent to kill aided, abetted, counseled, commanded, induced, solicited, requested or assisted any act, or in the commission of murder in t he
fir s t degree or reckless indifference to human life, and as a major participant, aided, abetted and so on and so forth. This matter is summarily denied.” Defense counsel objected for the record.5 II. DISCUSSION Defendant argues that (1) the court prejudicially erred by summarily denying his petition without affording him an opportunity to file a reply to the response; 3 and (2) that under Strong , the jury’s true finding on the felony

- murder special

- circumstance allegatio n s rendered prior to the decisions in Banks and Clark do not preclude him from making a prima facie case for relief

. We agree. “Senate Bill 1437 [(2017

- 2018 Reg. Sess.)] significantly limited the scope of the felony

- murder rule to effectuate the Legislatu re’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

3 To the extent the People suggested defendant forfeited the issue since his “claim of prejudice is speculative, because counsel did not raise this issue at the hearing nor did he indicate he needed to brief it,” we disagree. Counsel requested the court continue the matter. The court thereafter ruled on the petition without providing defense counsel further opportunity to respond or request the opportunity to brief issues. ( People v. Sperling (2017) 12 Cal.App.5th 1094, 1101 [parties not required to raise issue below if the court failed to give them any meaningful opportunity to object].) Instead, the court itself introduced an objection for the record on behalf of defense counsel.6

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.) “When the trial court receives a petition containing the necessary declaration and other required information, t he 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 ca use’ 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 pr ima 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 the7

weighing of evidence or the e xercise of discretion.’” ( Id . at p. 972.) “[T]he ‘prima facie bar was intentionally and correctly set very low.’” ( Ibid .) Where a defendant’s “case was tried before both Banks and Clark , . . . special circumstance findings do not preclude him from makin g 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, ‘b eyond 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

mans laughter 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 t o 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.)8

Here, the jury rendered the special murder circumstance findings long before both Banks and Clark were decided. Thus, 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.) Contrary to our initial determination, the special murder circumstance findings rendered by the jury a gainst defendant do not, alone, render him per se ineligible for relief. Therefore, the court below erred in denying defendant’s petition on that basis. Thus, the matter must be remanded for a new prima facie hearing prior to which defendant should be gi ven the opportunity, if he so elects, to file a reply to any response filed by the People.
III. DISPOSITION The order dismissing defendant’s petition is reversed. The matter is remanded with directions to hold a new prima facie hearing. We express no op inion on whether defendant is entitled to relief following the hearing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

FIELDS J.

MENETREZ J.