Filed 1/6/23 P. v. Bernal CA4/1

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or 

ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANKO BERNAL,

Defendant and Appellant.

 D078324

 (Super. Ct. No. SCE266559)

APPEAL from an order of the Superior Court of San Diego County, 

John M. Thompson, Judge. Reversed and remanded with instructions.

Appellate Defenders, Inc. and Arthur Martin, under appointment by 

the Court of Appeal, for Defendant and Appellant. 

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

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

General, Arlene A. Sevidal, Lynne G. McGinnis and Randall D. Einhorn, 

Deputy Attorneys General for Plaintiff and Respondent. 
2

INTRODUCTION

Franko Bernal appeals from the summary denial of his petition to 

vacate one of two first degree murder convictions under Penal Code section 

1172.6.1 The trial court found he was not entitled to relief, as a matter of 

law, because the jury returned a true finding on a robbery-murder special 

circumstance with the murder conviction. The jury’s finding on the special 

circumstance was made prior to the California Supreme Court’s decisions in 

People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 

Cal.4th 522 (Clark), which clarified the meaning of the terms “major

participant” and “reckless indifference to human life” necessary to support 

such felony-murder special circumstance findings. (Banks, at pp. 797–798, 

803; Clark, at pp. 608–624.) 

In our initial opinion, we concluded the jury’s findings did not 

categorically bar relief, and that we were unable to independently determine 

whether the special circumstance finding satisfied the standards set forth in 

Banks and Clark on the limited record of conviction before us. We therefore 

reversed the order and remanded the matter for further proceedings. The 

Supreme Court of California granted the People’s petition for review and held 

the case for its decision in People v. Strong (2022) 13 Cal.5th 698 (Strong).

The Court in Strong held that a jury’s true finding on felony-murder special 

circumstance allegation made before its decisions in Banks, supra, 61 Cal.4th 

788 and Clark, supra, 63 Cal.4th 522, which for the first time provided 

substantial guidance on the meanings of the phrases “major participant” and 

1 All further statutory references are to the Penal Code. Section 1170.95 

was recently renumbered to section 1172.6. (See Stats. 2022, ch. 58, § 10.) 

We cite the current version of the statute (§ 1172.6) in this opinion even 

though Bernal filed his petition under the former version (§ 1170.95). 
3

“with reckless indifference to human life” under section 190.2, subdivision (d),

does not preclude a defendant from stating a prima facie case for relief under 

section 1172.6. (Strong, at p. 721.) 

The Supreme Court has now transferred Bernal’s appeal back to us, 

with directions to vacate our prior opinion and to reconsider the matter in 

light of Strong. In compliance with those directions, we hereby vacate our 

prior opinion and based on Strong, supra, 13 Cal.5th 698, we reverse the 

order denying Bernal’s resentencing petition and remand the matter for 

further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The following short summary of the facts is taken from this court’s 

unpublished opinion affirming the judgment in People v. Bernal (Dec. 20, 

2011, D055043, D059644). 

Bernal and McCauley were “inseparable friends.” McCauley was 

homeless and did not drive. Bernal drove a car with a paper license tag, a 

large dent in the driver’s side door, and a sticker in the rear window that 

read, “ ‘I do fat bitches.’ ” Bernal owned a .22-caliber sawed-off rifle

nicknamed the “ ‘Jack Sparrow,’ ” which he often carried in his car or the 

waistband of his pants. 

On November 23, 2006, McCauley shot and killed a young man walking 

home from a Thanksgiving dinner in Murrieta with a .22-caliber gun. Bernal 

knew of the murder. The night of November 24, Bernal and McCauley went 

to a party where McCauley loudly bragged to guests, “ ‘I killed someone in 

Murrieta last night.’ ” Bernal laughed and said, “ ‘Clack, clack, clack,’ ” 

signifying the sound of a gun. Bernal also boasted, “ ‘Oh, yeah, we blasted 

this one guy’ ” and lifted his shirt to expose a gun in the front waistband of 

his pants.
4

Just over 24 hours later, in the early morning hours of November 25, 

2006, McCauley robbed a 7-Eleven store with the same .22-caliber gun. He 

shot a customer in the face and then shot the store clerk three times in the 

chest, killing the clerk. He stole change from the register, some scratch-off 

lottery tickets, and some beer. Bernal drove the getaway car, which had been 

seen driving back and forth outside the 7-Eleven with its headlights off 

during the two minutes McCauley was inside.

The customer survived and later reported that he saw a car traveling 

slowly in front of him while on his way to the 7-Eleven earlier that morning. 

A man tumbled out of the passenger door and the car stopped. The passenger 

and the driver argued, and the passenger got back into the car. The car had 

a paper tag rather than a license plate and a sticker in the back window that 

read, as he recalled, “ ‘I do fat chicks.’ ” The customer said that he fled the 

convenience store after being shot and saw a similar car parked nearby, with 

a man standing near the open driver’s door. 

A witness, who knew both McCauley and Bernal through a mutual 

friend, heard McCauley on Thanksgiving weekend brag that he “ ‘robbed a 7-

Eleven and that he shot somebody,’ and the day before in Murrieta he ‘robbed 

a kid for an iPod’ and shot him.” McCauley said he used the “ ‘Jack 

Sparrow’ ” and Bernal was present at both shootings. McCauley later told his 

aunt it was Bernal that wanted to rob the store, but he got annoyed when 

Bernal kept driving back and forth in front of the store, so he decided to 

“ ‘take over.’ ” McCauley admitted that he killed the clerk and stole money 

and beer. 

Bernal testified in his own defense and admitted he was present at the 

scenes of the crimes. He testified he drove McCauley the night of November 

23 to buy drugs in Murrieta and, although he heard two gunshots while both 
5

were outside the car, he thought it was McCauley shooting in the air. On 

November 25, he drove McCauley to the 7-Eleven to get some beer but did not 

know McCauley planned to rob the store or that he shot anyone.

In one trial, separate juries convicted McCauley, as the perpetrator, 

and Bernal, as the aider and abettor, of two counts of first degree murder 

(§§ 187, subd. (a), 189; counts 1 and 2), premeditated attempted murder 

(§§ 187, subd. (a), 189, 664; count 3), and robbery (§ 211; count 4). Bernal’s 

jury also convicted him of attempted robbery (§§ 211, 664; count 5). Bernal’s 

jury further found true that he vicariously used a firearm (§ 12022, subd. 

(a)(1)), the special circumstance of multiple murder (§ 190.2, subd. (a)(3)),

and, as to the 7-Eleven murder in count 2, the special circumstances of

murder during the commission of robbery and burglary (§ 190.2, subd. 

(a)(17)(A) & (G)). 

Bernal was sentenced to a total of two terms of life without the 

possibility of parole plus one year for the murders (counts 1 & 2), plus one 

term of life with the possibility of parole plus one year on the attempted 

murder (count 3), with all terms running concurrently.

This court affirmed the judgment on direct appeal in 2011. In doing so, 

we rejected Bernal’s claim that the trial court erred in denying his motion for 

judgment of acquittal pursuant to section 1118.1 on counts 1, 2, 3 and 5, on 

the basis there was insufficient evidence of aiding and abetting.

In January 2019, Bernal filed a petition for a writ of habeas corpus 

seeking resentencing under section 1172.6. The trial court deemed the filing 

as a petition for resentencing under section 1172.6 and appointed counsel for 

Bernal. For reasons that are not entirely clear, Bernal filed another petition 

for resentencing in June 2019. The People asserted, among other arguments, 

that Bernal was not entitled to relief with respect to the 7-Eleven murder 
6

because the jury’s true findings on the special circumstances of murder 

during the commission of robbery and burglary necessarily evidenced the 

malice required under the newly amended section 189. Bernal responded

that the special circumstance findings did not bar relief because the jury’s 

findings were made well before Banks and Clark. 

In October 2020, the trial court found Bernal was ineligible for relief, as 

a matter of law, with respect to the 7-Eleven murder in count 2. Relying on

this court’s previous opinion in People v. Gomez (June 29, 2020) D076101,

opinion ordered nonpublished September 28, 2022, S264033, the trial court 

concluded that in finding the robbery-murder special circumstance true, the 

jury necessarily found Bernal participated in the robbery with the intent to 

kill or that he was a major participant in the robbery who acted with reckless 

indifference to human life.2 The court recognized that there is a split in 

authority among the Courts of Appeal on the issue and elected to follow its 

own appellate district in Gomez. Although not at issue here, the court also 

found Bernal’s arguments with respect to the Murrieta murder in count 1 

unavailing and, thus, denied the petition in its entirety. 

Bernal timely appealed, and this court issued an opinion in which we 

reversed the order denying his petition for resentencing and remanded the 

matter to the trial court for further proceedings. (People v. Bernal (Dec. 30, 

2021, D078324) [nonpub. opn.], review granted Mar. 9, 2022, S272998.) The 

Supreme Court of California granted review and held Bernal’s case for its 

2 As noted, the jury also found true a special circumstance that the 

murder was committed during the commission of a burglary within the 

meaning of section 190.2, subdivision (a)(17)(G). The trial court relied solely 

on the robbery-murder special circumstance in denying Bernal’s section 

1172.6 petition but, regardless, our decision would be the same had the court 

relied on the second special circumstance as well. 
7

decision in Strong, supra, 13 Cal.5th 698. After issuing its decision in Strong, 

the Court transferred Bernal’s appeal back to us with directions to vacate our 

initial opinion and reconsider the matter in light of Strong. (Supreme Ct. 

order filed Nov. 30, 2022, S272998.)

DISCUSSION

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘to 

amend the felony murder rule and the natural and probable consequences

doctrine, as it relates to murder, to ensure that murder liability is not

imposed on a person who is not the actual killer, did not act with the intent to

kill, or was not a major participant in the underlying felony who acted with

reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).) In 

addition to substantively amending sections 188 and 189 of the Penal Code,

Senate Bill 1437 added section [1172.6], which provides a procedure for

convicted murderers who could not be convicted under the law as amended to 

retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 959 

(Lewis).) 

“Pursuant to section [1172.6], an offender must file a petition in the 

sentencing court averring that: ‘(1) A complaint, information, or indictment 

was filed against the petitioner that allowed the 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[;] [¶] [and] (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.’ ” (Lewis, supra, 11 Cal.5th at pp. 959–960; see 

also § 1172.6, subds. (a), (b)(1).) 
8

If the petition meets these basic requirements, the trial court “proceeds 

to subdivision (c) to assess whether the petitioner has made ‘a prima facie 

showing’ for relief. (§ [1172.6], subd. (c).)” (Lewis, supra, 11 Cal.5th at 

p. 960.) “If the trial court determines that a prima facie showing for relief 

has been made, the trial court issues an order to show cause, and then 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 . . . previously been sentenced,

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

sentence.’ (§ [1172.6], subd. (d)(1).)” (Ibid.) At the hearing on the order to 

show cause, “ ‘[t]he prosecutor and the petitioner may rely on the record of 

conviction or offer new or additional evidence to meet their respective 

burdens.’ (§ [1172.6], subd. (d)(3).)” (Ibid.)

The trial court determined Bernal was not eligible for relief under 

section 1172.6 at the prima facie stage and, with respect to count 2, based its 

decision solely on the jury’s robbery-murder special circumstance finding. 

Bernal asserts the trial court erred because the special circumstance finding

does not categorically bar him from relief under section 1172.6.3 The People 

3 Bernal did not contest the trial court’s decision with respect to count 1 

in his initial briefing on appeal and, thus, our initial decision related only to 

the 7-Eleven murder charged in count 2. But, as we noted in our original 

decision, the Legislature subsequently passed Senate Bill No. 775 (2021–2022 

Reg. Sess.), which amended section 1172.6 to permit petitions for 

resentencing on attempted murder charges, effective January 1, 2022. (Sen. 

Bill. No. 775 (2021–2022 Reg. Sess.) approved by Governor, Oct. 5, 2021, § 2.) 

Bernal filed the petition for resentencing at issue in the present appeal prior 

to that amendment and did not address count 3, the attempted murder 

charge. Accordingly, we do not address count 3 and nothing in this opinion is 

intended to preclude Bernal from seeking resentencing on count 3 pursuant 

to section 1172.6, as amended, either on remand or in a separate petition. 
9

initially disagreed with Bernal and urged us to affirm the trial court’s order. 

But after the Supreme Court decided Strong, supra, 13 Cal.5th 698, they 

agree “the order denying appellant’s petition at the prima facie stage should 

be reversed, and this matter remanded for further proceedings consistent 

with the dictates of Strong.” We agree with the parties.

There is no dispute here that Bernal was not the actual shooter and 

was not in the store when McCauley shot the victims. The jury made felonymurder special circumstance findings pursuant to section 190.2, subdivision 

(a)(17), and those findings required the jury to conclude Bernal either had the 

intent to kill or was a major participant that acted with reckless indifference 

to human life. However, the jury made those findings in 2009, well before the

California Supreme Court decided Banks and Clark and clarified the 

meaning of the terms “major participant” and “reckless indifference to human 

life” necessary to support such felony-murder special circumstance findings. 

(Banks, supra, 61 Cal.4th at pp. 797–798, 803; Clark, supra, 63 Cal.4th at 

pp. 608–624.) 

In Strong, our high court recently decided that where, as here, a 

defendant’s case “was tried before both Banks and Clark, the special 

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

case for resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at

p. 721.) The Supreme Court reasoned that section 1172.6 requires the 

petitioner to make a prima facie showing that he could not be convicted of 

murder under the amended versions of sections 188 and 189, and “[a] preBanks and Clark special circumstance finding does not negate that showing 

because the finding alone does not establish that the petitioner is in a class of 

defendants who would still be viewed as liable for murder under the current 

understanding of the major participant and reckless indifference 
10

requirements.” (Strong, at pp. 717−718.) “This is true even if the trial 

evidence would have been sufficient to support the findings under Banks and

Clark.” (Strong, at p. 710; see People v. Montes (2021) 71 Cal.App.5th 1001, 

1008 [trial court may not deny section 1172.6 petition at prima facie stage 

based on its own determination defendant was major participant in felony 

and acted with reckless disregard for human life].) Thus, “[n]either the jury’s 

pre-Banks and Clark findings nor a court’s later sufficiency of the evidence 

review amounts to the determination section 1172.6 requires, and neither set 

of findings supplies a basis to reject an otherwise adequate prima facie 

showing and deny issuance of an order to show cause.” (Strong, at p. 720.)

Here, the jury’s felony-murder special circumstance findings were made 

well before the decisions in Banks and Clark. Under Strong, those findings

do not preclude Bernal from stating a prima facie case for relief. (Strong,

supra, 13 Cal.5th at p. 721.) We therefore conclude, in accordance with 

Strong, the trial court erred by relying solely on the robbery-murder special 

circumstance finding to deny Bernal’s section 1172.6 petition with respect to 

count 2. 

The People previously asserted any error was harmless because the 

record of conviction establishes the jury’s robbery-murder special 

circumstance finding was valid as a matter of law even if we consider the 

additional guidance provided in Banks and Clark. They now concede that 

remand is appropriate, and we agree. Because Bernal’s petition alleged the 

facts necessary for relief under section 1172.6 and nothing in the record 

shows he is ineligible for relief as a matter of law, the trial court erred by 

summarily denying his petition. We therefore must remand the matter to the 

trial court to issue an order to show cause and, to the extent necessary, hold

an evidentiary hearing. (§ 1172.6, subds. (c), (d); Strong, supra, 13 Cal.5th at 
11

pp. 708−709; People v. Duchine (2021) 60 Cal.App.5th 798, 816.) We express 

no opinion on how the court should ultimately rule on the petition.

DISPOSITION

The opinion filed on December 30, 2021, is vacated. The order denying 

the petition for resentencing under section 1172.6 is reversed. The matter is 

remanded to the trial court with directions to issue an order to show cause 

and, to the extent necessary, hold an evidentiary hearing.

DO, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.