Filed 11/3/22 P. v. Garza 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

EFRAIN GARZA, JR.,

Defendant and Appellant.

F081250

(Super. Ct. No. SC076259B)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. 

Twisselman II, Judge.

Mary K. McComb, State Public Defender, under appointment by the Court of 

Appeal, Craig Buckser and Jessie Hawk, Deputy State Public Defenders, for Defendant 

and Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and 

Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P. J., Detjen, J. and Snauffer, J.
2.

INTRODUCTION

In 2000, petitioner Efrain Garza, Jr., pled nolo contendere to the first degree 

murder of Chad Yarbrough (Pen. Code,1 § 187, subd. (a); count 1).2 Petitioner admitted 

the special circumstance that he committed the murder while engaged in the commission 

or attempted commission of carjacking (§ 190.2, subd. (a)(17)(L)).3 The trial court 

sentenced petitioner to a term of life without the possibility of parole. 

In 2019, petitioner filed a petition for resentencing pursuant to former section 

1170.95 (now § 1172.6).4 The trial court denied the petition because petitioner admitted 

the carjacking special circumstance, which required him to admit he was a major 

participant acting with reckless disregard for human life, a disqualifying factor pursuant 

to Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437). 

On appeal, petitioner contends he has established a prima facie case for 

entitlement of relief because the special circumstance admission cannot establish his 

ineligibility for resentencing as a matter of law because his conviction predates our 

Supreme Court’s decisions in Banks/Clark,

5 which clarified the meaning of “major 

1 All further statutory references are to the Penal Code unless otherwise specified. 

2 Multiple counts and allegations were dismissed as a part of the plea. These are 

discussed in further detail below. 

3 At the time petitioner entered his plea, the carjacking special circumstance was 

alleged in the original information in error pursuant to section 190.2, subdivision 

(a)(17)(xii). However, the minutes of the plea reflect that petitioner admitted a 

carjacking special circumstance pursuant to section 190.2, subdivision (a)(17)(L). At a 

subsequent proceeding, the district attorney amended the information by interlineation to 

allege the carjacking special circumstance pursuant to section 190.2, subdivision 

(a)(17)(L). Petitioner stipulated to the amendment. 

4 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with 

no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the current section 1172.6 

in this opinion. 

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

Cal.4th 522 (Clark).
3.

participant” and “reckless indifference to human life.” Therefore, he argues he has 

established a prima facie case for relief under section 1172.6 entitling him to an 

evidentiary hearing. 

While petitioner’s appeal was pending, our Supreme Court held a pre-Banks/Clark

special circumstance finding and/or admission does not render a section 1172.6 petitioner 

ineligible for relief as a matter of law. (People v. Strong (2022) 13 Cal.5th 698 (Strong).) 

Therefore, based on Strong, we must vacate the trial court’s order and remand the matter 

for further proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND

We include a brief summary of the facts of this case taken from the preliminary 

hearing transcript dated January 26 to 27, 1999.6

On the night of October 14, 1997, petitioner and Juan Ramirez approached 

Yarbrough and Brent Y.7 who were sitting inside a truck. Petitioner pointed a gun at 

Yarbrough’s chest and ordered both Yarbrough and Brent out of the truck. Petitioner 

entered through the passenger’s side door and Ramirez entered through the driver’s side 

door. Brent got out, but Yarbrough remained inside the truck. The truck was then driven 

away. Later on, Yarbrough was found dead with three gunshot wounds to the head. 

Yarbrough’s hands were also tightly bound with shoelaces and tape was placed over his 

eyes. 

6 We provide these facts from the preliminary hearing transcript for background 

purposes only because they were cited by petitioner in his opening brief. However, we 

do not rely on these facts in resolving the issues presented in this appeal and take no 

position on whether this evidence is admissible to determine petitioner’s eligibility for 

resentencing. (See § 1172.6, subd. (d)(3) [“[H]earsay 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.”]; see also People v. Flores (2022) 76 Cal.App.5th 974, 978, fn. 2.)

7 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by 

their first names. No disrespect is intended.
4.

On February 5, 1999, the Kern County District Attorney filed an information 

charging petitioner with the first degree murder of Yarbrough (§ 187, subd. (a); count 1),

with the special circumstances that the murder was committed during the commission or 

attempted commission of kidnapping (§ 190.2, former subd. (a)(17)(ii) and carjacking 

(§ 190.2, former subd. (a)(17)(xii)), and a firearm enhancement (§ 12022.5, subd. (d)); 

kidnapping with the intent to commit robbery (§ 209, subd. (b)(1); count 2), with a 

firearm enhancement (§ 12022.5, subd. (a)); and carjacking (§ 215, subd. (a); count 3), 

with a firearm enhancement (§ 12022.5, subd. (a)). 

On July 6, 2000, petitioner pled nolo contendere to first degree murder (§ 187, 

subd. (a); count 1) and admitted the carjacking special circumstance (§ 190.2, subd. 

(a)(17)(L)). The trial court dismissed remaining counts and allegations on the People’s 

motion. The People’s motion was conditioned on petitioner serving a term of life without 

the possibility of parole. Accordingly, on August 3, 2000, the trial court sentenced 

petitioner on count 1 to a term of life without the possibility of parole. 

On July 22, 2019, petitioner, in propria persona, filed a petition for resentencing 

pursuant to section 1172.6. In the form petition, petitioner stated a complaint, 

information, or indictment was filed against him that allowed him to be prosecuted under 

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

doctrine; he pled guilty or no contest to first or second degree murder in lieu of going to 

trial because he believed he could have been convicted of first or second degree murder 

at trial pursuant to the felony-murder rule or the natural and probable consequences 

doctrine; and he could not now be convicted of first or second degree murder because of 

changes to sections 188 and 189, effective January 1, 2019. Petitioner also requested the 

court appoint counsel during the resentencing process.8 

8

It appears petitioner initially checked boxes stating that he was convicted of first 

degree felony murder and could not now be so convicted because he was not the actual 

killer, did not aid and abet the murder with intent to kill, and was not a major participant 
5.

On February 15, 2019, the trial court appointed counsel for petitioner. The People 

filed a motion to dismiss the petition, arguing that Senate Bill No. 1437 was

unconstitutional, and petitioner, through appointed counsel, filed a response arguing the 

constitutionality of Senate Bill No. 1437. The People filed an amended motion to dismiss 

arguing Senate Bill No. 1437 was unconstitutional on additional grounds. Petitioner filed 

a response. The trial court denied the People’s motion to dismiss. 

The People then filed a response to the petition on the merits, arguing petitioner 

was ineligible for resentencing because he admitted the special circumstance allegation 

and thereby admitted he was a major participant in the felony and acted with reckless 

indifference to human life. The People also argued the facts adduced at petitioner’s 

preliminary hearing established he was a major participant in the felony and acted with 

reckless indifference to human life. Petitioner filed a reply arguing he made a prima facie 

showing of entitlement to relief. 

On May 29, 2020, the trial court denied petitioner’s petition finding: 

“[W]hen the [petitioner] entered a guilty plea, including the admission to 

the special circumstance, that the legal effect of that admission is that for all 

purposes the legal and factual issues relative to the special circumstance are 

conclusively resolved. And so when the petitioner admitted the special 

circumstance he admitted he was a major participant, acting with reckless 

disregard for human life. And as a matter of law I find that means that he 

has failed — that the petitioner has failed to meet his burden to establish a 

prima facie case, and the petition is denied.” 

A timely appeal followed. 

During the pendency of this appeal, petitioner submitted a request on June 8, 2022,

asking this court to continue oral argument “to some date” after our Supreme Court filed 

its decision in Strong. On June 22, 2022, we granted petitioner’s request and ordered that 

in the felony or did not act with reckless indifference to human life, and the victim was 

not a peace officer in the performance of his or her duties. However, it appears 

petitioner’s check marks next to these boxes were subsequently covered up or whited out. 
6.

oral argument be placed on calendar when remittitur issued in Strong and allowed for 

either party to file supplemental briefing no later than 15 days from the date remittitur 

issued in that case. On September 15, 2022, petitioner filed a letter brief and stated, “In 

light of the Strong decision, the Attorney General—counsel for the respondent—has 

authorized me to represent to the Court respondent’s agreement that the case should not 

be rescheduled for oral argument; instead, it should be remanded forthwith.” Based on 

Strong, we issued an order that it was “the intention of the court to reverse and remand 

this matter with directions [to the trial court] to issue an order to show cause,” but 

provided either party 15 days to serve and file an objection. Since that order was filed, 

no objections were received. Accordingly, in light of Strong, the trial court’s order 

denying the section 1172.6 petition is reversed and the matter remanded for further 

proceedings.

DISCUSSION

I. Applicable Law

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “to amend 

the felony murder rule and the natural and probable consequences doctrine . . . 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).) The bill 

accomplished this task by adding three separate provisions to the Penal Code. (People v. 

Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable 

consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a 

principal to act with malice aforethought before he or she may be convicted of murder. 

(§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to amend the felonymurder rule, the bill added section 189, subdivision (e):

“A participant in the perpetration or attempted perpetration of [qualifying 

felonies] in which a death occurs is liable for murder only if one of the 
7.

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. [¶] (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.”9 (§ 189, subd. (e); accord, Gentile, at p. 842.)

Finally, the bill added section 1172.6 (former § 1170.95) to provide a procedure for those 

convicted of a qualifying offense “to seek relief under the two ameliorative provisions 

above.” (Gentile, at p. 843.) This procedure is available to persons convicted of “felony 

murder or 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, attempted murder under the natural and probable consequences doctrine, or 

manslaughter.” (§ 1172.6, subd. (a).)

“Section [1172.6] lays out a process” for a person convicted of one of the 

aforementioned offenses “to seek vacatur of his or her conviction and resentencing.” 

(Gentile, supra, 10 Cal.5th at p. 853.) First, 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, 

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[; and]

9 Additionally, section 189 was amended to allow for felony-murder liability 

where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57 

Cal.App.5th 666, 672.)
8.

“(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)(1)-(3); see § 1172.6, subd. (b)(1)(A); accord, 

People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).) 

Additionally, the petition shall state “[w]hether the petitioner requests the appointment of 

counsel.” (§ 1172.6, subd. (b)(1)(C).) 

If a petition fails to contain the required information and the information cannot be 

“readily ascertained” by the court, the petition may be denied without prejudice to the 

filing of another petition. (§ 1172.6, subd. (b)(2).) Otherwise, counsel must be 

appointed, if requested. (§ 1172.6, subd. (b)(3).) The prosecutor must file a response and 

the petitioner may file a reply. The trial court must then hold a hearing to determine if 

the petitioner has made a prima facie showing that he or she is entitled to relief. 

(§ 1172.6, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making 

this determination, the court may rely on the record of conviction, which includes, but is 

not limited to, jury instructions and verdict forms. (Lewis, at pp. 970-971, 972.) 

However, the prima facie inquiry is limited and, at this stage of the proceedings, the court 

“should not engage in ‘factfinding involving the weighing of evidence or the exercise of 

discretion.’ ” (Id. at pp. 971-972.) “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).)

On the other hand, if the court determines the petitioner has met his or her prima 

facie burden, “the trial court must issue an order to show cause and hold a hearing to 

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

and to resentence the petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at 

p. 853; accord, § 1172.6, subds. (c), (d)(1).) At the hearing, the prosecution must “prove, 

beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1172.6, 

subd. (d)(3).) The prosecutor and the petitioner may offer new or additional evidence to 

meet their respective burdens. The admission of evidence at the hearing is governed by 
9.

the Evidence Code. However, the court also “may consider evidence previously admitted 

at any prior hearing or trial that is admissible under current law, including witness 

testimony, stipulated evidence, and the matters judicially noticed,” as well as the 

“procedural history of the case recited in any prior appellate opinion.” (§ 1172.6, subd. 

(d)(3).) Hearsay evidence that was admitted in a preliminary hearing pursuant to 

subdivision (b) of section 872 is inadmissible at the evidentiary hearing, unless made 

admissible by another exception to the hearsay rule. (§ 1172.6, subd. (d)(3).) 

II. Analysis

Petitioner contends the special circumstance admission cannot establish his 

ineligibility for resentencing because Banks/Clark substantively changed the legal 

meaning of both “major participant” and “reckless indifference to human life.” Based on 

our Supreme Court’s holding in Strong, we agree.10

Prior to Strong, the Courts of Appeal were split on the question of whether a 

special circumstance finding entered prior to Banks and Clark renders a petitioner 

ineligible for section 1172.6 resentencing relief as a matter of law. Our Supreme Court 

recently resolved this split and made clear that when, as here, a petitioner’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.) “This is true even if the trial evidence would have been 

sufficient to support the findings under Banks and Clark.” (Id. at p. 710.) The Strong

court noted the Banks and Clark cases “both substantially clarified the law governing 

findings under . . . section 190.2, subdivision (d).” (Id. at p. 706.) Further, the court 

10 Petitioner further contends the Legislature implicitly prohibited a section 190.2, 

subdivision (a)(17) special circumstance admission from excluding an individual from 

section 1172.6 resentencing relief as a matter of law and that none of the traditional 

preclusion doctrines apply to permit use of the special circumstance admission as a bar to 

resentencing. Because we conclude petitioner established a prima case for relief under 

section 1172.6, we do not address his remaining arguments in this opinion. 
10.

articulated a pre-Banks and Clark special circumstance finding does not negate the 

showing a petitioner could not presently be convicted of murder or attempted murder 

because of changes to section 188 or 189 “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 

requirements.” (Strong, at p. 718.) 

Because of the differences between the pre-and post-Banks and Clark special 

circumstance requirements, the Supreme Court stated the changes may “have altered 

what evidence defense counsel would have sought to introduce[,] . . . might have 

fundamentally altered trial strategies” (Strong, supra, 13 Cal.5th at p. 719), and may have 

affected what jury instructions were requested or given (id. at p. 720). “An after-the-fact 

court review of a pre-Banks and Clark record does not account for all these 

differences. . . . And as the Legislature has made explicit in a recent amendment to the 

predecessor to section 1172.6, a court determination that substantial evidence supports a 

homicide conviction is not a basis for denying resentencing after an evidentiary hearing. 

[Citation.] Nor, then, is it a basis for denying a petitioner the opportunity to have an 

evidentiary hearing in the first place.” (Ibid.) “For petitioners with pre-Banks/Clark

findings, no judge or jury has ever found the currently required degree of culpability for a 

first time. Allowing reexamination of the issue under these circumstances does not 

permit ‘a second bite of the apple’ because the changes in the law mean there is now ‘a 

different apple.’ ” (Id. at p. 718.) Thus, neither “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.” (Id. at 

p. 720.)

Here, petitioner admitted the section 190.2, subdivision (a)(17) special 

circumstance approximately 15 years before Banks and Clark were decided. Pursuant to 
11.

Strong, this admission does not preclude petitioner from stating a prima facie case for 

relief. (Strong, supra, 13 Cal.5th at p. 721.) Moreover, a petitioner’s prima facie case is 

not barred even if the evidence is sufficient to support the special circumstances postBanks and Clark. (Id. at p. 710; see Lewis, supra, 11 Cal.5th at p. 972 [In reviewing the 

record at the prima facie stage, “a trial court should not engage in ‘factfinding involving 

the weighing of evidence or the exercise of discretion.’ ”].)

Petitioner’s section 1172.6 petition was facially sufficient and alleged the essential 

facts necessary for relief under section 1172.6. Nothing in the record indicates petitioner 

is ineligible for relief as a matter of law, and thus, we must remand the matter for the trial 

court to issue an order to show cause and, to the extent necessary, conduct an evidentiary 

hearing. (§ 1172.6, subds. (c), (d)(1) & (3).) We express no opinion on the ultimate 

resolution of the petition.

DISPOSITION

The trial court’s order denying petitioner’s section 1172.6 petition is reversed. On 

remand, the trial court is directed to issue an order to show cause and, to the extent 

necessary, hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).