Filed 10/2/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTWAN ALLISON,

Defendant and Appellant.

 B300575

 (Los Angeles County

 Super. Ct. No. PA022581)

APPEAL from an order of the Superior Court of 

Los Angeles County, Eric P. Harmon, Judge. Affirmed.

____________________________

Richard D. Miggins, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Charles S. Lee and William H. Shin, Deputy 

Attorneys General, for Plaintiff and Respondent.

____________________________
2

This case presents the same question we addressed

recently in People v. Galvan (2020) 52 Cal.App.5th 1134 (Galvan): 

whether a defendant convicted of murder with a felony-murder 

special circumstance (Pen. Code,1 § 190.2, subd. (a)(17)) is eligible 

for resentencing under section 1170.95. Just as in Galvan, 

we answer that question in the negative, and accordingly, we 

affirm the trial court’s denial of the defendant’s petition for 

resentencing. We publish this opinion in order to respond to 

our colleagues in Division 5 of this court, who in People v. York

(2020) 54 Cal.App.5th 250 (York) disagreed with our analysis in 

Galvan.

2

In 1997, a jury convicted defendant and appellant Antwan

Allison of murder on the basis of his participation in a home 

invasion robbery in which either Allison or a cohort shot and 

killed two victims. The jury, however, was deadlocked on the

prosecution’s allegation of felony-murder special circumstances

(§ 190.2, subd. (a)(17)), which required the jury to find either 

that Allison was the actual killer, that he acted with the intent 

to kill, or that he was a major participant in the robbery who 

acted with reckless indifference to human life. To avoid a retrial 

of that issue and a possible sentence of life in prison without the 

possibility of parole, as part of a plea bargain, Allison admitted 

1 Subsequent statutory references are to the Penal Code.

2 The opinion in York followed two other opinions by 

Division 5 applying similar reasoning on the same issue: 

People v. Torres (2020) 46 Cal.App.5th 1168, review granted 

June 24, 2020, S262011 (Torres), and People v. Smith (2020) 49 

Cal.App.5th 85, review granted July 22, 2020, S262835 (Smith). 

Although we respond to York in this opinion, we disagree with 

the reasoning in Torres and Smith as well.
3

the truth of the felony-murder special circumstances, and the 

court found there was a factual basis for the admission and 

accepted the plea.

In 2019, relying on recently enacted section 1170.95, 

Allison petitioned the trial court to vacate his murder conviction 

and resentence him. The court denied the petition because,

based on the special circumstance finding, Allison could still be 

convicted of murder and therefore was ineligible for resentencing 

under section 1170.95.

Allison, however, contends that his 1997 special 

circumstance admission can no longer support a felony-murder

conviction in light of our 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 “major participant” and “reckless indifference to human 

life.” We disagree and affirm the trial court’s order because

section 1170.95 is not a vehicle for such a challenge. 

(See Galvan, supra, 52 Cal.App.5th at pp. 1141-1142.)

FACTS AND PROCEEDINGS BELOW

The following account of the facts underlying Allison’s 

conviction is taken from our opinion in his original appeal. 

(People v. Allison (Jan. 31, 2000, B121801) [nonpub. opn.].)

Allison’s codefendant, Ricky Smith, was an acquaintance 

of 15-year-old Jonathan Landau (Jonathan)3 and had visited 

the Landau residence several times. Smith and Allison agreed 

to a plan by which Smith would meet with Jonathan at the 

Landau home. After Jonathan’s parents went to bed, Smith 

3 For clarity, we use the first names for the Landau family 

members, intending no disrespect.
4

would leave the front door unlocked, and Allison would enter and

rob the residents. Smith would pretend to be a victim. Allison 

told police that the plan was Smith’s idea, and that Smith 

provided Allison with a ski mask, gloves, and a gun.

The two defendants put their plan into action on the 

evening of January 2, 1996. Allison entered the house through 

the unlocked front door, gathered Jonathan and Jonathan’s 

parents (Richard and Donna Landau) together in the hallway, 

struck Richard on the forehead with his gun, and ordered 

the Landaus to lie down on the floor. Allison ordered Smith 

to restrain the Landaus with tape. Smith placed tape over all 

three Landaus’ eyes, and bound their hands.

The defendants also placed plastic bags over the Landaus’ 

heads. Richard and Donna complained that it was difficult 

to breathe, at which point one of the defendants fired several 

gunshots, killing Richard and Donna and wounding Jonathan 

in the leg. Jonathan, whose eyes were covered by tape, could not 

see who fired the shots. Jonathan pretended to be dead and 

remained still until he was sure the defendants had left, at which 

point he called the police. The defendants stole jewelry, credit 

cards, checks, and Donna’s checkbook.

Allison’s first trial resulted in a hung jury. At the 

second trial, the jury convicted him of two counts of first degree 

murder (§§ 187, subd. (a), 189), one count of assault with a

firearm (§ 245, subd. (a)(2)), one count of burglary (§ 459), and 

one count of robbery (§ 211). The jury could not reach a verdict 

as to whether felony-murder special circumstances applied to 

the murder counts. (See § 190.2, subd. (a)(17).) Rather than 

proceed to a third trial on the special circumstances, Allison 

agreed to a plea bargain, according to which he admitted the 
5

special circumstances.4 In exchange, the prosecution agreed 

to request that the trial court exercise its discretion not to 

impose a sentence of life without parole. The court imposed 

two consecutive terms of 25 years to life for the murders, plus 

an additional four-year consecutive sentence for assault with 

a firearm. The court stayed its sentence on the robbery and 

burglary counts pursuant to section 654. 

In 2018, the Legislature enacted Senate Bill No. 1437 

(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which, 

among other changes, amended section 188 to eliminate 

felony-murder liability in cases in which the defendant 

was not a major participant in the underlying felony or did 

not act with reckless indifference to human life. (People v. 

Lamoureux (2019) 42 Cal.App.5th 241, 247–248.) The 

Legislature also enacted section 1170.95, which establishes a 

procedure for vacating murder convictions for defendants who 

could no longer be convicted of murder under the new law and 

resentencing such defendants. (Stats. 2018, ch. 1015, § 4, 

pp. 6675–6677.)

On January 21, 2019, Allison filed a petition for 

resentencing under section 1170.95 in which he declared that 

he had been convicted of murder under the felony-murder rule 

or the natural and probable consequences doctrine and that he 

could not now be convicted of murder because of the changes 

4 Allison admitted four felony-murder special 

circumstances: one for robbery and one for burglary of each of 

the two murder victims. (See § 190.2, subd. (a)(17)(A) & (G).) 

Because all the special circumstances were based on the same 

conduct, they all required that Allison was a major participant 

in the home invasion and that he acted with reckless indifference 

to human life.
6

made to sections 188 and 189. Upon receipt of the petition, 

the trial court appointed counsel to represent Allison.

The district attorney filed an opposition challenging 

the constitutionality of Senate Bill No. 1437, and a separate 

opposition arguing that Allison was ineligible for resentencing 

because he was a major participant in the underlying crimes and 

acted with reckless indifference to human life and therefore met 

the new criteria for felony murder. Allison’s counsel filed a reply 

brief arguing that Senate Bill No. 1437 was constitutional and 

that Allison had established a prima facie case for relief.

The trial court held a hearing, then issued a written order 

denying the petition on the ground that Allison had failed to 

make a prima facie case. The court reasoned that, by admitting 

the special circumstances, Allison had admitted that at minimum 

he was a major participant in the underlying felony and acted

with reckless indifference to human life. The court concluded 

that the enactment of Senate Bill No. 1437 therefore did not

allow Allison’s conviction to be vacated.

Allison appealed, and we appointed counsel to represent 

him. Counsel filed a brief pursuant to People v. Wende (1979) 

25 Cal.3d 436 (Wende), raising no issues and asking this court to 

review the record independently.5 In cases like this one, where 

the defendant has no constitutional right to representation by 

counsel, we are not obligated to follow the procedures set out 

by Wende to review the record independently and determine 

whether any arguable issues exist. (People v. Cole (2020) 

5 After counsel filed the Wende brief, we received a letter 

from Allison in which he stated that he realized that the change 

in the law did not apply to him, and requested that we dismiss 

the appeal. That request is denied.
7

52 Cal.App.5th 1023, 1034.) Nevertheless, we have the discretion 

to review the record in the interests of justice. (See People v. 

Flores (2020) 54 Cal.App.5th 266, 273–274.) In this case, we 

exercised that discretion and requested that the parties brief 

the following issue: Whether the trial court properly relied 

on Allison’s admission of felony-murder special circumstances 

(§ 190.2, subd. (a)(17)) as the sole basis for finding that he had 

not made a prima facie showing that he was entitled to relief.

DISCUSSION

A. Background on Section 1170.95

Section 1170.95 allows a defendant serving a sentence for 

felony murder who could not be convicted of murder because of 

the amendments to sections 188 and 189 contained in Senate 

Bill No. 1437 to petition for resentencing. The statute requires 

a defendant to submit a petition affirming that he or she: 

(1) was charged with murder in a manner “that allowed the 

prosecution to proceed under a theory of felony murder or 

murder under the natural and probable consequences doctrine” 

(§ 1170.95, subd. (a)(1)); (2) was “convicted of” or pleaded guilty 

to “first degree or second degree murder” (§ 1170.95, subd. (a)(2)); 

and (3) “could not be convicted of first or second degree murder 

because of changes to Section 188 or 189 made” in Senate Bill

No. 1437 (§ 1170.95, subd. (a)(3)). As described above, those

changes eliminated the natural and probable consequences 

doctrine as a basis for murder liability, and added a requirement 

for felony murder that a defendant must have been at least a

major participant in the underlying felony who acted with 

reckless indifference to human life.
8

Upon receipt of a facially sufficient petition, the trial 

court reviews the matter to determine whether the petitioner 

has made a prima facie showing that he or she “falls within the 

provisions” of the statute. (§ 1170.95, subd. (c).) If the petitioner 

meets this requirement, the court shall appoint counsel for the 

defendant upon request and allow for briefing. (Ibid.) “If the 

petitioner makes a prima facie showing that he or she is entitled 

to relief,” the court issues an order to show cause and holds a 

hearing to determine whether to vacate the murder conviction. 

(§ 1170.95, subds. (c) & (d)(1).) In this case, the trial court 

denied the petition at the second stage of prima facie review 

under section 1170.95, subdivision (c), after appointing counsel 

to represent Allison. 

B. A Defendant with a Felony-murder Special 

Circumstance Finding Is Ineligible for 

Resentencing Under Section 1170.95

To be eligible for resentencing under section 1170.95, 

Allison must make a prima facie showing that he “could not

be convicted of first or second degree murder because of changes 

to Section 188 or 189 made” in Senate Bill No. 1437. (§ 1170.95, 

subd. (a)(3), italics added.) Under the newly amended version 

of section 189, a defendant can be convicted of felony murder 

only if he: was the actual killer; acted with the intent to kill 

in aiding, abetting, counseling, commanding, inducing, soliciting, 

requesting, or assisting in first degree murder; or “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)(3).) These are identical to 

the requirements of a felony-murder special circumstance now

and in 1997 when Allison made his admission. (See § 190.2, 
9

subds. (b)–(d); Prop. 196, as approved by voters, Gen. Elec. 

(Mar. 26, 1996) [amending § 190.2].) Thus, the specialcircumstance admission shows as a matter of law that Allison

could still be convicted of felony murder even under the newly 

amended version of section 189, and prevents Allison from 

making a prima facie case that he is eligible for resentencing.

Allison attempts to avoid this conclusion by attacking 

the validity of the felony-murder special circumstances. He 

notes that after his conviction of felony murder, the Supreme 

Court decided Banks and Clark, clarifying the interpretation 

of the concepts of major participation and reckless indifference 

to human life. In Banks, the Court evaluated existing 

United States Supreme Court jurisprudence on the issue and 

set out a series of considerations relevant to determining whether 

a particular defendant was a major participant in the underlying 

felony. (See Banks, supra, 61 Cal.4th at p. 803.) The Court did 

the same in Clark with respect to whether the defendant acted 

with reckless indifference to human life. (See Clark, supra, 

63 Cal.4th at pp. 618–623.) Because no court has examined 

whether there was a factual basis to conclude that Allison

was a major participant who acted with reckless indifference 

to human life according to the standards enunciated in Banks

and Clark, Allison argues that the special circumstance 

admission does not show as a matter of law that he is ineligible 

for resentencing under section 1170.95. The court in York

agreed with this argument and held that a defendant with a

felony-murder special circumstance could be eligible for 

relief under section 1170.95. (York, supra, 54 Cal.App.5th at 

pp. 257–258.)
10

We disagree, just as we did in Galvan.

6 Allison’s argument 

exaggerates the effect of Banks and Clark. Those opinions did 

not change the law, but “merely clarified the ‘major participant’ 

and ‘reckless indifference to human life’ principles that existed 

when defendant’s conviction became final.” (In re Miller (2017) 

14 Cal.App.5th 960, 978.) The phrases “major participant” 

and “reckless indifference to human life” do not have specialized 

definitions, but are interpreted as they are used in common 

parlance. (See Banks, supra, 61 Cal.4th at pp. 800–801; People v.

Price (2017) 8 Cal.App.5th 409, 450–451.) Jury instructions 

regarding the mental state required for a felony-murder 

special circumstance are not defective if they do not include the

Banks and Clark factors. (Id. at p. 451.) Indeed, the pattern 

jury instruction regarding major participation and reckless 

indifference remains the same as it was before Banks and Clark. 

6 In Galvan and other cases involving section 1170.95 

challenges, the special circumstance findings were made by 

juries. In this case, however, Allison admitted the truth of the

special circumstances in a plea bargain. Nevertheless, our 

reasoning in Galvan applies equally to this case. In general, 

“ ‘ “[a] guilty plea amounts to an admission of every element 

of the crime and is the equivalent of a conviction.” ’ ” (People v. 

Mazumder (2019) 34 Cal.App.5th 732, 741.) By the same logic, 

the admission of an enhancement is equivalent to and has the 

same effect as a jury finding on the enhancement. (See People v. 

Shirley (1993) 18 Cal.App.4th 40, 46–47.) Section 1170.95 

applies equally to defendants who were “convicted of first degree 

or second degree murder following a trial or accepted a plea offer 

in lieu of a trial.” (§ 1170.95, subd. (a)(2).) Thus, our analysis in 

Galvan regarding the availability of relief under section 1170.95 

applies equally to Allison as to a defendant where the jury made 

the special circumstance finding.
11

(See CALCRIM No. 703; People v. Gomez (2020) 52 Cal.App.5th 

1, 14, fn. 6 [setting forth CALCRIM No. 703 prior to Banks and 

Clark].) The instruction currently includes optional language 

suggested by the Banks and Clark decisions, but even so, the 

inclusion of the optional language does not materially change the 

instruction.7 The bench notes to the instruction state that Banks

7 The optional language in CALCRIM No. 703 is as follows:

“[When you decide whether the defendant acted with reckless 

indifference to human life, consider all the evidence. No one 

of the following factors is necessary, nor is any one of them 

necessarily enough, to determine whether the defendant acted 

with reckless indifference to human life. Among the factors you 

may consider are:

[• Did the [defendant know that [a] lethal weapon[s] 

would be]* present during the <insert underlying felony>?]

[• Did the defendant know that [a] lethal weapon[s] 

would be present during the <insert underlying felony>?]

[• Did the defendant know that [a] lethal weapon[s] 

(was/were) likely to be used?]

[• Did the defendant know that [a] lethal weapon[s] 

(was/were) used?]

[• Did the defendant know the number of weapons 

involved?]

[• Was the defendant near the person(s) killed when 

the killing occurred?]

[• Did the defendant have an opportunity to stop the 

killing or to help the victim(s)?]

[• How long did the crime last?]

[• Was the defendant aware of anything that would 

make a coparticipant likely to kill?]

[• Did the defendant try to minimize the possibility of 

violence?]
12

“stopped short of holding that the court has a sua sponte duty to 

instruct on those factors,” and Clark “did not hold that the court 

has a sua sponte duty to instruct on those factors.” (Bench Notes 

to CALCRIM No. 703 (2020 ed.) p. 452; see People v. Gomez

(2020) 52 Cal.App.5th 1, 14, fn. 6.)

Moreover, Allison had the same incentive at his original 

trial to attempt to minimize his involvement in the robbery 

[• <insert any other relevant factors>]]

[When you decide whether the defendant was a major 

participant, consider all the evidence. No one of these following 

factors is necessary, nor is any one of them necessarily enough, 

to determine whether the defendant was a major participant.

Among the factors you may consider are:

[• What was the defendant’s role in planning the crime 

that led to the death[s]?]

[• What was the defendant’s role in supplying or using 

lethal weapons?]

[• What did the defendant know about dangers posed by 

the crime, any weapons used, or past experience or conduct of 

the other participant[s]?]

[• Was the defendant in a position to facilitate or to 

prevent the death?]

[• Did the defendant’s action or inaction play a role in 

the death?]

[• What did the defendant do after lethal force was used?]

[• <insert any other relevant factors.>]]”

_____________________

* We note that the language within the internal brackets 

in the first factor—“defendant know that [a] lethal weapon[s] 

would be”—is not included in the 2020 edition of CALCRIM 

and the omission appears to be a clerical error. The language 

included here appears in Westlaw’s online version of the 

instruction.
13

and his culpability for the killings as he would have had if his 

trial had taken place after Banks and Clark. In short, there 

is no reason to believe that Allison’s admission of the special 

circumstance after his original trial was any different in 

meaning or effect than it would have been if he had made it 

today. If defendants like Allison were able to petition for relief 

under section 1170.95, it would create a disparity by giving 

defendants with pre-Banks and Clark special-circumstance 

findings an opportunity to retry their cases, even as more 

recently convicted defendants are denied this opportunity.8 

(See Galvan, supra, 52 Cal.App.5th at pp. 1142-1143.)

The York court also stated that our opinion in Galvan

was flawed for ignoring section 1170.95, subdivision (d)(2), 

which requires the trial court to grant relief “[i]f there was a 

prior finding by a court or jury that the petitioner did not act 

with reckless indifference to human life or was not a major 

participant in the felony.” (§ 1170.95, subd. (d)(2).) Because 

there is no equivalent subdivision requiring the denial of relief 

where a court or jury previously found that the petitioner did

act with reckless indifference to human life and was a major

participant in the underlying felony, the court in York

reasoned that we should infer that the Legislature meant to 

allow a defendant in that situation to pursue relief under 

section 1170.95. (York, supra, 54 Cal.App.5th at p. 260.)

8 Although our holding in this case, like Galvan, is not 

contingent on the availability of habeas corpus relief, we note 

that a defendant whose special circumstance determination 

predated Banks and Clark may challenge the sufficiency of the 

evidence of the finding by means of a habeas corpus petition. 

(See In re Scoggins (2020) 9 Cal.5th 667, 673–674.)
14

We disagree. The Legislature could not and did not need 

to spell out every ground for denying a petition. For example, 

the Legislature did not specify that a defendant “who was found 

to have personally and intentionally discharged a firearm causing 

great bodily injury or death in a single victim homicide within 

the meaning of section 12022.53, subdivision (d)” is ineligible for 

relief, but a court would be correct to summarily deny a petition 

in such a case because the defendant could not make a prima 

facie claim that he was entitled to relief. (People v. Verdugo

(2020) 44 Cal.App.5th 320, 330 (Verdugo), review granted

Mar. 18, 2020, S260493.) The same is true with numerous other 

prior findings, such as “administration of poison” or “street gang”

special circumstances, which require that the defendant killed 

the victim. (See § 190.2, subd. (a)(19) & (22).) If these kinds of 

findings did not bar defendants from relief under section 1170.95, 

it would be unclear how any prior factual findings could preclude 

relief under section 1170.95. For these reasons we conclude that 

the Legislature’s silence regarding defendants with pre-Banks

and Clark special circumstances does not imply that such 

defendants are eligible for resentencing under section 1170.95.

Allison’s argument fails for another reason. To be eligible

for resentencing under section 1170.95, a defendant must show 

that he “could not be convicted of first or second degree murder 

because of changes to Section 188 or 189 made” in Senate Bill 

No. 1437. (§ 1170.95, subd. (a)(3), italics added.) But Senate 

Bill No. 1437 alone does nothing to help defendants like Allison. 

Under the new law, to convict a defendant of felony murder, 

the prosecution must prove that the defendant at a minimum 

was a major participant in a felony and acted with reckless 

indifference to human life. But that is precisely what Allison
15

admitted as part of his plea bargain. He now claims that his 

special circumstance is no longer valid because of Banks and 

Clark, not “because of” anything in Senate Bill No. 1437. 

(§ 1170.95, subd. (a)(3); see Galvan, supra, 52 Cal.App.5th at 

p. 1142.)

The court in York disagreed with our analysis, explaining

that “[w]hat permits a defendant convicted of felony-murder to

challenge his or her murder conviction based on the contention 

that he or she was not a major participant in the underlying 

felony who acted with reckless indifference to human life, 

are the changes Senate Bill [No.] 1437 made to sections 188 

and 189, and in particular the addition of section 189, 

subdivision (e)(3), not the rulings in Banks and Clark.” (York, 

supra, 54 Cal.App.5th at p. 261.) At the same time, however, 

the York opinion included a footnote declining to express an 

opinion as to whether a prior finding that was not affected by 

an intervening change in the law (such as Banks and Clark) 

should be treated as preclusive in evaluating a section 1170.95 

petition. (York, supra, at p. 258, fn. 5.)

We are not persuaded by York because, notwithstanding 

York’s cautious footnote, the consequence of York’s analysis 

is that no prior jury findings would ever preclude relief under 

section 1170.95. No matter how conclusively the prior findings 

establish the defendant’s liability for murder under amended 

sections 188 and 189, the defendant would always be able to 

make the same argument endorsed in York: What permits 

the defendant to challenge his murder conviction based on 

the contention that the prior findings were wrong are the 

changes made to sections 188 and 189, and that is all that 

subdivision (a)(3) of section 1170.95 requires. Thus, even if 
16

the jury found that the defendant was the actual killer or acted 

with intent to kill or otherwise acted with malice, relief under 

section 1170.95 might still be available—none of those findings 

was required for murder liability before Senate Bill No. 1437 

(because a defendant who lacked malice and was not the actual 

killer could still have been convicted on a felony murder or 

natural and probable consequences theory). As a result, the 

petitioner could contend, under York, that he or she was not the 

actual killer or did not act with malice and therefore could not be 

convicted of murder because of the changes Senate Bill No. 1437 

made to sections 188 and 189. Thus, every convicted murderer 

who could make a prima facie showing (whatever that might be) 

that the prior findings were factually incorrect would be entitled 

to a bench trial de novo on those findings.

We do not believe it is reasonable to interpret 

section 1170.95 as allowing for such challenges, namely, 

challenges based on attacks on prior factual findings. Nothing 

in the language of section 1170.95 suggests it was intended 

to provide redress for allegedly erroneous prior fact-finding. 

In particular, subdivision (a)(3) of section 1170.95 says nothing 

about erroneous prior findings or the possibility of proving 

contrary facts if given a second chance. Rather, it requires 

that the petitioner could not be convicted of murder because 

of the changes to sections 188 and 189, not because a prior 

fact finder got the facts wrong. The purpose of section 1170.95 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.

For these reasons, we disagree with York and believe that

Verdugo, supra, 44 Cal.App.5th 320, review granted March 18, 
17

2020, S260493, correctly describes the role of prior factual 

findings in the analysis of a petition under section 1170.95. 

According to Verdugo, relief under section 1170.95 is barred if 

a prior finding shows the petitioner “was convicted on a ground 

that remains valid notwithstanding Senate Bill No. 1437’s 

amendments to sections 188 and 189.” (Verdugo, supra, 44 

Cal.App.5th at p. 330.) Verdugo’s interpretation is faithful to 

the language of subdivision (a)(3) of section 1170.95: If the prior 

finding shows the petitioner meets the requirements for murder 

liability under amended sections 188 and 189, then it is not true 

that the petitioner could not be convicted of murder because of the 

changes to sections 188 and 189, and the petition must be denied.

DISPOSITION

The trial court’s order is affirmed.

CERTIFIED FOR PUBLICATION.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

SINANIAN, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.