Filed 8/23/21

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

VIRGIL JEROD WILKINS,

Defendant and Appellant.

 D078004

 (Super. Ct. No. FVI800686-1)

APPEAL from an order of the Superior Court of San Bernardino 

County, J. David Mazurek, Judge. Reversed and remanded.

Dawn S. Mortazavi, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha 

Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and 

Respondent.

Jason Anderson, District Attorney, and Cary Epstein, Deputy District 

Attorney, as Amicus Curiae on behalf of Plaintiff and Respondent.
2

I

INTRODUCTION

“The Eighth Amendment to the United States Constitution, which 

prohibits the infliction of ‘cruel and unusual punishments,’ imposes various 

restrictions on the use of the death penalty as a punishment for crime. One 

such restriction is that any legislative scheme defining criminal conduct for 

which death is the prescribed penalty must include some narrowing principle 

that channels jury discretion and provides a principled way to distinguish 

those cases in which the death penalty is imposed from the many cases in 

which it is not. A death-eligibility criterion that fails to meet this standard is 

deemed impermissibly vague under the Eighth Amendment.” (People v. 

Bacigalupo (1993) 6 Cal.4th 457, 462 (Bacigalupo).) In California, special 

circumstance criteria codified in Penal Code section 190.2, including the 

felony-murder special circumstance set forth in subdivision (a)(17), perform 

the narrowing function demanded by the Eighth Amendment.1

In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. 

Sess.), which amended the mens rea requirements for the crime of murder 

and restricted the circumstances under which a person can be liable for 

murder under the felony-murder rule. This appeal requires us to decide 

whether Senate Bill No. 1437 eradicated the narrowing function traditionally 

performed by the felony-murder special circumstance statute. 

The trial court found it did, thus rendering the felony-murder special 

circumstance statute inoperable in practice. Based on this finding, the court

found Senate Bill No. 1437 unconstitutionally amended a voter-approved 

initiative pertaining to special circumstances. After finding Senate Bill 

No. 1437 unconstitutional, the court struck a petition filed by defendant 

1 Further undesignated statutory references are to the Penal Code.
3

Virgil Jerod Wilkins to have his first degree murder conviction vacated under 

section 1170.95, the resentencing provision of Senate Bill No. 1437. 

We conclude the felony-murder special circumstance statute continues 

to narrow the class of death-eligible murderers notwithstanding the 

enactment of Senate Bill No. 1437. It circumscribes the overall class of 

murderers by rendering a mere subclass of murderers—namely, those 

convicted of first degree felony murder—eligible for the death penalty. Thus, 

we conclude Senate Bill No. 1437 neither repealed the felony-murder special 

circumstance statute in practice nor amended any voter-approved initiative.

Given our conclusions, we reverse the trial court order striking the 

defendant’s resentencing petition and remand the matter for further 

proceedings pursuant to section 1170.95, subdivision (c).

II

BACKGROUND

A

Defendant’s Murder Conviction

In 2008, a jury convicted the defendant of arson (§ 451, subd. (d)) and 

the first degree murder of Alberto Cervantes (§ 187, subd. (a)). The trial 

court sentenced the defendant to prison for a term of 25 years to life for the 

murder conviction, plus a consecutive term of eight months for the arson 

conviction. On direct appeal, we affirmed the judgment and the Supreme 

Court denied review. (People v. Meeks (Sept. 7, 2010, D057193) [nonpub. 

opn.] review den. Dec. 15, 2012, S187238.)

B

Senate Bill No. 1437

In 2018, the Legislature enacted Senate Bill No. 1437, effective 

January 1, 2019. (Stats. 2018, ch. 1015.) The law’s stated purpose was “to 
4

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.” (Id., § 1, subd. (f).)

Senate Bill No. 1437 effectuated this goal by amending section 188, 

which defines malice, and section 189, which defines the degrees of murder. 

(Stats. 2018, ch. 1015, § 3.) Amended section 188 states: “Except as stated in 

subdivision (e) of Section 189, in order to be convicted of murder, a principal 

in a crime shall act with malice aforethought. Malice shall not be imputed to 

a person based solely on his or her participation in a crime.” (§ 188, 

subd. (a)(3).) Amended section 189 states: “A participant in the perpetration 

or attempted perpetration of a felony listed in subdivision (a) in which a 

death occurs is liable for murder only if one of the following is proven: [¶] 

(1) The person was the actual killer. [¶] (2) The person was not the actual 

killer, but, with the intent to kill, aided, abetted, counseled, commanded, 

induced, solicited, requested, or assisted the actual killer in the commission 

of murder in the first degree. [¶] [or] (3) The person was a major participant 

in the underlying felony and acted with reckless indifference to human life, 

as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e).)

Senate Bill No. 1437 also enacted section 1170.95, which provides 

resentencing relief to eligible defendants. Under subdivision (a), “[a] person 

convicted of felony murder or murder under a natural and probable 

consequences theory may file a petition” with the sentencing court to have his 

or her murder 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 
5

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

natural and probable consequences doctrine. [¶] (2) The petitioner was 

convicted of first degree or second degree murder following a trial or accepted 

a plea offer in lieu of a trial at which the petitioner could be convicted for first 

degree or second degree murder. [¶] (3) The petitioner could not be convicted 

of first or second degree murder because of changes to Section 188 or 189 

made effective January 1, 2019” pursuant to Senate Bill No. 1437.

Subdivision (c) discusses the trial court’s prima facie review of a 

resentencing petition. It states as follows: “The court shall review the 

petition and determine if the petitioner has made a prima facie showing that 

the petitioner falls within the provisions of [section 1170.95]. If the petitioner 

has requested counsel, the court shall appoint counsel to represent the 

petitioner. The prosecutor shall file and serve a response within 60 days of 

service of the petition and the petitioner may file and serve a reply within 30 

days after the prosecutor response is served. These deadlines shall be 

extended for good cause. If the petitioner makes a prima facie showing that 

he or she is entitled to relief, the court shall issue an order to show cause.” 

(§ 1170.95, subd. (c).)

If an order to show cause issues, the court generally must “hold a 

hearing to determine whether to vacate the murder conviction and to recall 

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

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

that the new sentence, if any, is not greater than the initial sentence.” 

(§ 1170.95, subd. (d)(1)–(2).) At the hearing, the prosecution bears the 

burden of proving the petitioner is ineligible for resentencing beyond a 

reasonable doubt. (Id., subd. (d)(3).) “The prosecutor and the petitioner may 
6

rely on the record of conviction or offer new or additional evidence to meet 

their respective burdens.” (Ibid.)

C

Defendant’s Resentencing Petition

After Senate Bill No. 1437 went into effect, the defendant filed a 

petition to have his murder conviction vacated and to be resentenced under 

section 1170.95. 

The district attorney moved to strike the defendant’s resentencing 

petition. He argued the petition should be stricken because Senate Bill 

No. 1437 amended two voter-approved initiatives, Proposition 7 (Prop. 7, as 

approved by voters, Gen. Elec. (Nov. 7, 1978)),2 and Proposition 115 (Prop. 

115, as approved by voters, Primary Elec. (June 5, 1990)),3 in violation of 

2 Proposition 7 increased the punishment for first degree murder from 

life imprisonment with parole eligibility after seven years to a term of 25 

years to life, and increased the punishment for second degree murder from a 

term of five, six, or seven years to a term of 15 years to life. (Prop. 7, §§ 1–2.)

3 Proposition 115 augmented the list of predicate felonies on which a first 

degree felony murder charge may be based. (Prop. 115, § 9.) It also amended 

the special circumstance statute to require a sentence of death or life without 

the possibility of parole in two situations where the offender is not the actual 

killer—(1) when he or she aids or supports a killer and acts with the intent to 

kill; and (2) when he or she is a major participant in a specified felony during 

which a death occurs, and acts with reckless indifference to human life. 

(Prop. 115, § 10.) Prior to the passage of Proposition 115, “state law made 

only those felony-murder aiders and abettors who intended to kill eligible for 

a death sentence.” (People v. Banks (2015) 61 Cal.4th 788, 798.)
7

Article II, section 10 of the California Constitution.4 According to the district 

attorney, Senate Bill No. 1437 amended the initiatives by undoing the 

penalties for conduct that amounted to murder at the time the electorate

passed the initiatives. The district attorney also argued the petition should 

be stricken because section 1170.95 violated the separation of powers 

doctrine and Marsy’s Law, and “an independent review of the evidence” 

purportedly showed the defendant was ineligible for relief. 

The trial court appointed the public defender’s office to represent the 

defendant in the resentencing proceeding. Shortly after the appointment, a 

conflict was declared and conflict counsel was appointed for the defendant. 

The defendant filed a pro per opposition to the motion to strike. The 

opposition brief summarized Senate Bill No. 1437, without addressing the 

law’s constitutionality or the defendant’s eligibility for relief. The record does 

not disclose why the defendant filed his opposition brief pro se, apparently 

without the assistance of his appointed counsel.

Before the court ruled on the motion to strike, the district attorney filed 

a second motion to strike. He acknowledged this court’s intervening decisions 

in People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux) and Gooden, 

supra, 42 Cal.App.5th 270 rejected the constitutional claims he made in the 

first motion to strike. Nonetheless, he argued the petition should be stricken

for an additional reason not previously raised in the first motion to strike. 

As the district attorney explained, Senate Bill No. 1437 amended the 

state’s murder statute so that a defendant may now be convicted of first 

4 “Under article II, section 10 of the California Constitution, a statute 

enacted by voter initiative may be amended or repealed by the Legislature 

only with the approval of the electorate, unless the initiative statute provides 

otherwise.” (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 

279 (Gooden).)
8

degree felony murder as an aider and abettor only if he or she aids and abets 

a murder with the intent to kill, or acts with reckless indifference as a major 

participant of a felony in which a death occurs—elements that are identical to 

those dictating whether a murderer is eligible for the death penalty under the 

felony-murder special circumstance statute. According to the district 

attorney, this overlap means the felony-murder special circumstance statute

no longer narrows the class of death-eligible murderers—a deficiency that 

effectively “eliminat[es] the People’s ability to seek death against accomplices 

to felony murder.” The district attorney claimed Senate Bill No. 1437 thus 

repealed the felony-murder special circumstance statute in practice. He 

asserted this repeal, in turn, amended Proposition 7 and Proposition 115

because the voters who approved those initiatives intended some felony 

murder aiders and abettors to be eligible for the death penalty. 

At the hearing on the defendant’s petition, the court found Senate Bill 

No. 1437 was unconstitutional for the reasons stated in the district attorney’s 

second motion to strike. The court opined that “any aider and abettor liable 

for first degree ... felony murder under [Senate Bill No. 1437] is 

automatically eligible to also receive the death penalty since the definition 

and elements for felony murder under [Senate Bill No. 1437] and the special 

circumstance are now not just similar but they are identical.” The court

further opined that “the effect of [Senate Bill No. 1437] is that the felony 

murder special circumstance under [section] 190.2(a)(17) and also [section] 

190.2(c) and (d) no longer narrows the class of first degree felony [murderers] 

eligible for the death penalty as constitutionally required. [¶] This, in turn, 

invalidates and thereby effectively repeals the felony murder special 

circumstance [statute]. This, of course, the legislature cannot do since [that]

provision[] [was] enacted in Proposition 115.” On these grounds, the court 
9

struck the defendant’s resentencing petition without addressing whether he 

made a prima facie showing of entitlement to relief. 

III

DISCUSSION

A

Standard of Review

This appeal requires us to assess the constitutionality of Senate Bill 

No. 1437. The defendant and the Attorney General contend Senate Bill 

No. 1437 is constitutional because the felony-murder special circumstance 

statute still performs its Eighth Amendment narrowing function. 

With our permission, the district attorney filed an amicus curiae brief 

arguing Senate Bill No. 1437 is unconstitutional. He claims Senate Bill 

No. 1437 is unconstitutional because it purportedly destroyed the narrowing 

function of the felony-murder special circumstance statute. 

The constitutionality of Senate Bill No. 1437 presents a legal issue to 

which we apply a de novo standard of review. (People v. Bucio (2020) 48 

Cal.App.5th 300, 307.) We will presume Senate Bill No. 1437 is valid and we 

will invalidate the law only if a constitutional infirmity is clearly and 

unmistakably established. (See Ivory Education Institute v. Department of 

Fish & Wildlife (2018) 28 Cal.App.5th 975, 981.)

B

The District Attorney Does Not Have Standing to 

Vicariously Assert the Defendant’s Eighth Amendment Rights

At the outset, we note there appears to be some confusion among the 

parties as to whether the district attorney believes Senate Bill No. 1437 is 

unconstitutional, as applied in this case, because it violates the defendant’s

Eighth Amendment rights. To the extent the district attorney challenges 

Senate Bill No. 1437 on this basis, we conclude he lacks standing to do so.
10

The rights enumerated in the Eighth Amendment are personal to the 

defendant. (See Miller v. Alabama (2012) 567 U.S. 460, 469 [“The Eighth 

Amendment’s prohibition of cruel and unusual punishment ‘guarantees 

individuals the right not to be subjected to excessive sanctions.’ ”], italics 

added; accord Los Angeles Police Dept. v. United Reporting Pub. Corp. (1999)

528 U.S. 32, 39 [“the personal nature of constitutional rights” is a “ ‘cardinal 

principle’ of our constitutional order”].) Therefore, as a general rule, no party 

other than the defendant himself or herself may challenge a statute on 

grounds that it impinges upon his or her Eighth Amendment rights. (See In 

re Cregler (1961) 56 Cal.2d 308, 313 [“one will not be heard to attack a 

statute on grounds that are not shown to be applicable to himself”].) 

This case does not present an exception to that general rule. The 

district attorney does “not represent the particularized interests of persons 

who have been accused of criminal offenses or petitioners seeking relief from 

convictions,” such as the defendant. (Lamoureux, supra, 42 Cal.App.5th at 

p. 267.) Thus, the district attorney does not have standing to challenge

Senate Bill No. 1437 based on the law’s potential infringement on the 

defendant’s Eighth Amendment rights. (Ibid. [district attorney did not have

standing to challenge section 1170.95 based on the law’s alleged infringement 

on petitioners’ constitutional rights]; accord Whitmore v. Arkansas (1990) 495 

U.S. 149, 156–161 [third party lacked standing to assert Eighth Amendment 

violations on behalf of capital defendant].)

C

Senate Bill No. 1437 Does Not Create a Narrowing Problem

We now turn to what we discern to be the district attorney’s main 

argument on appeal. He claims Senate Bill No. 1437 amended Proposition 7 

and Proposition 115 by repealing the felony-murder special circumstance 
11

statute. According to the district attorney, Senate Bill No. 1437 repealed the 

felony-murder special circumstance statute because it eradicated the 

constitutionally-required narrowing function previously performed by the 

felony-murder special circumstance statute. As we will explain, we disagree.

“The United States Supreme Court’s capital punishment jurisprudence 

rests on the principle that ‘ “ ‘the infliction of a sentence of death under legal 

systems that permit this unique penalty to be ... wantonly and ... freakishly 

imposed’ ” ’ violates the Eighth and Fourteenth Amendments to the federal 

Constitution.” (Bacigalupo, supra, 6 Cal.4th at p. 465, quoting Lewis v. 

Jeffers (1990) 497 U.S. 764, 774.) To satisfy the Eighth Amendment, a state’s 

capital punishment scheme must narrow, or “circumscribe[,] the class of 

persons eligible for the death penalty.” (Zant v. Stephens (1983) 462 U.S. 

862, 879.) “Additionally, it must afford some objective basis for 

distinguishing a case in which the death penalty has been imposed from the 

many cases in which it has not. [Citation.] A legislative definition lacking 

‘some narrowing principle’ to limit the class of persons eligible for the death 

penalty and having no objective basis for appellate review is deemed to be 

impermissibly vague under the Eighth Amendment.” (Bacigalupo, at p. 465.)

In California, capital cases proceed in “separate phases.” (Bacigalupo, 

supra, 6 Cal.4th at p. 467, citing § 190.1.) “At the initial phase of the trial, 

the trier of fact decides the issue of defendant’s guilt or innocence of first 

degree murder. If the defendant is found guilty, a determination must be 

made as to the existence of any ‘special circumstances.’ ” (Ibid., citing 

§§ 190.1, 190.2.) “If the trier of fact finds at least one alleged special 

circumstance to be true, the case proceeds to the ‘penalty’ phase of the trial” 

during which the trier of fact “select[s] the punishment for [the] defendant 
12

who has been found to be within the narrowed class of murderers for whom 

death would be an appropriate penalty.” (Id. at pp. 467, 468.)

The special circumstance of relevance here is the felony-murder special 

circumstance, which applies when a murder is committed “while the 

defendant was engaged in, or was an accomplice in, the commission of, [or] 

attempted commission of,” an enumerated felony. (§ 190.2, subd. (a)(17).) 

The felony-murder special circumstance statute applies to a nonkiller if he or 

she aided and abetted in the commission of murder with the intent to kill (id., 

subd. (c)), or aided and abetted in the commission of the underlying felony 

with reckless indifference to human life as a major participant (id., subd. (d)).

Under California’s capital sentencing scheme, the special 

circumstances perform the narrowing function required by the Eighth 

Amendment. (Bacigalupo, supra, 6 Cal.4th at p. 467.) On numerous 

occasions, our Supreme Court has rejected arguments that the state’s death 

penalty scheme, and the felony-murder special circumstance statute in 

particular, fail to narrow the class of death-eligible defendants in violation of 

the Eighth Amendment. (See, e.g., People v. Schultz (2020) 10 Cal.5th 623, 

682; People v. Johnson (2016) 62 Cal.4th 600, 654–655; People v. Covarrubias 

(2016) 1 Cal.5th 838, 934; People v. Merriman (2014) 60 Cal.4th 1, 105; People 

v. Scott (2011) 52 Cal.4th 452, 496; People v. Pollock (2004) 32 Cal.4th 1153, 

1195–1196.) These Supreme Court decisions are binding on this court. (See 

Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

The district attorney acknowledges these precedents, but contends they

are not controlling because they did not decide whether the felony-murder 

special circumstance statute still performs its narrowing function after the 

enactment of Senate Bill No. 1437. According to the district attorney, the 

felony-murder special circumstance statute no longer winnows the class of 
13

death eligible murderers because the elements of first degree felony murder

(§ 189, subd. (e)) are now identical to the elements of the felony-murder 

special circumstance statute (§ 190.2, subds. (a)(17), (c), (d)). In other words, 

the district attorney claims the felony-murder special circumstance statute 

no longer performs a narrowing function because every person who is 

convicted of first degree felony murder is now eligible for the death penalty 

under the felony-murder special circumstance statute. 

We are not persuaded by the district attorney’s argument. As the 

Attorney General correctly notes, our role is not to ask whether a given 

special circumstance narrows an already-narrowed subset of murderers (first 

degree murderers) who have been found guilty of murder under one

particular theory of liability (felony murder). Rather, our task is to 

determine whether the state’s capital punishment law genuinely narrows the 

entire class of murderers to a subclass of death-eligible murderers. (See 

People v. Beames (2007) 40 Cal.4th 907, 934 (Beames) [“Because the special 

circumstances listed in section 190.2 apply only to a subclass of murderers, 

not to all murderers [citation], there is no merit to defendant’s contention ... 

that our death penalty law is impermissibly broad.”]; Tuilaepa v. California 

(1994) 512 U.S. 967, 972 [to satisfy the Eighth Amendment, an aggravated 

circumstance “may not apply to every defendant convicted of a murder; it 

must apply only to a subclass of defendants convicted of murder”]; accord 

People v. Landry (2016) 2 Cal.5th 52, 108 [“There is no requirement at the 

eligibility stage that a narrowly circumscribed class of defendants for whom 

the death penalty is reasonably justified be further distinguished according to 

the particular circumstances that led to their eligibility.”].)

The felony-murder special circumstance statute still performs this 

narrowing function, even after the enactment of Senate Bill No. 1437. It 
14

makes a subclass of murderers—first degree felony murderers—death 

eligible. It does not apply to other murderers such as second degree 

murderers or simple murderers. Because the statute renders a mere subset 

of murderers eligible for the death penalty, it sufficiently narrows the overall 

class of murderers as required by the Eighth Amendment. (See People v. 

Bonillas (1989) 48 Cal.3d 757, 780 [“the statutory scheme making felony 

murder but not simple murder death eligible does not violate the federal 

Constitution”]; People v. Anderson (1987) 43 Cal.3d 1104, 1147–1148, 

superseded by statute on other grounds as stated in People v. Mil (2012) 53 

Cal.4th 400, 408–409 [“[B]y making the felony murderer but not the simple 

murderer death-eligible, a death penalty law furnishes the ‘meaningful basis 

[required by the Eighth Amendment] for distinguishing the few cases in 

which [the death penalty] is imposed from the many cases in which it is 

not.’ ”].)

Our conclusion is not altered by the fact the elements of first degree 

felony murder are identical to the elements dictating death eligibility under 

the felony-murder special circumstance statute. As our Supreme Court has 

made clear, overlapping culpability and special circumstance elements—even 

identical ones—do not offend the Eighth Amendment. (People v. Johnson 

(2016) 62 Cal.4th 600, 636 [“the amended lying-in-wait special circumstance 

would satisfy federal constitutional requirements for death eligibility even 

were the amendment to have made the special circumstance identical to 

lying-in-wait first degree murder”]; People v. Catlin (2001) 26 Cal.4th 81, 158

[“first degree murder liability and special circumstance findings may be 

based upon common elements without offending the Eighth Amendment”]; 

see Lowenfield v. Phelps (1988) 484 U.S. 231, 246 [“the fact that the 
15

aggravating circumstance duplicate[s] one of the elements of the crime does 

not make [the] sentence constitutionally infirm”].)

Nor is our conclusion altered by the district attorney’s claim that the 

felony-murder special circumstance statute fails to perform a narrowing 

function because felony murder “occurs at much greater frequency [than] 

other murders,” such that a disproportionately high percentage of convicted 

murderers are now death eligible under the felony-murder special 

circumstance statute. “[A]lthough at one time the United States Supreme 

Court suggested that a constitutionally valid death penalty law must exclude 

most murders from eligibility for the death penalty, that is no longer the 

case.” (Beames, supra, 40 Cal.4th at p. 934.) Given this clarification, our

Supreme Court has repeatedly rejected statistics-based overbreadth 

challenges like the one the district attorney presents here. (People v. Miles 

(2020) 9 Cal.5th 513, 605; Beames, at pp. 933–934; People v. Vieira (2005) 35 

Cal.4th 264, 303–304; People v. Jones (2003) 30 Cal.4th 1084, 1127–1128.) 

These precedents compel us to reject the district attorney’s argument.5

In sum, the felony-murder special circumstance statute circumscribes 

the total class of murderers in our state to a subset of death-eligible 

murderers—specifically, to individuals convicted of first degree felony 

murder. Senate Bill No. 1437 did nothing to change this fact. Therefore, the 

felony-murder special circumstance statute continues to perform a narrowing 

function notwithstanding the enactment of Senate Bill No. 1437. It follows 

that Senate Bill No. 1437 did not repeal the felony-murder special 

circumstance statute or amend the voter-approved initiatives at issue.

5 The district attorney’s overbreadth argument is unpersuasive for 

another reason. The district attorney does not cite any evidence from the 

appellate record or legal authority to support his claims regarding the 

purported prevalence of felony murder relative to other types of murder.
16

D

Application to Defendant’s Case

The trial court struck the defendant’s resentencing petition based 

solely on its finding that Senate Bill No. 1437 was unconstitutional. It did 

not assess whether the defendant made a prima facie showing of entitlement 

to relief. Further, the parties and the district attorney present no arguments 

on appeal concerning the sufficiency of the defendant’s prima facie showing. 

Therefore, we reverse the order striking the defendant’s petition and remand 

the matter for further proceeding pursuant to section 1170.95, subdivision (c).

IV

DISPOSITION

The order is reversed and the matter is remanded for the trial court to

conduct a prima facie review of the defendant’s resentencing petition under 

Penal Code section 1170.95, subdivision (c).

McCONNELL, P. J.

WE CONCUR:

DATO, J.

GUERRERO, J.