Filed 10/21/21 P. v. Jackson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

ALONZO JACKSON, JR.,

Defendant and Appellant.

F081570

(Super. Ct. No. CF92472108)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. David 

Andrew Gottlieb, Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, 

Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and

Respondent.

-ooOoo-

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

INTRODUCTION

In 1995, a jury convicted petitioner Alonzo Jackson, Jr., of two counts of first 

degree murder (Pen. Code,1 § 187), with a robbery-murder special circumstance (§ 190.2, 

subd. (a)(17)), and a multiple-murder special circumstance (§ 190.2, subd. (a)(3)).

2

 For 

these offenses, he was sentenced to two consecutive terms of life without the possibility 

of parole. 

In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. 

The court summarily denied the petition on the ground that petitioner was a major 

participant in the underlying felony who acted with reckless indifference to human life, a 

disqualifying factor pursuant to section 1170.95, subdivision (a)(3). 

On appeal, petitioner asserts he established a prima facie claim for resentencing 

relief, and the court therefore erred in denying the petition without issuing an order to 

show cause. We conclude the court did not err in denying the petition without issuing an 

order to show cause because the record establishes petitioner is ineligible for resentencing 

as a matter of law. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In this court’s opinion on petitioner’s direct appeal, we described the facts leading 

to his convictions as follows:

“In May 1992, Wayne Carr made his living as a drug dealer. During 

this time he lived with Sheldon Logan and his girlfriend, Heidi, in their 

apartment in Fresno. In the early morning hours of May 14, 1992, Officer 

Albert Hernandez, of the Fresno Police Department was responding to a 

call near Logan’s apartment when he saw a young woman run, screaming, 

out of an apartment building, get in a car, and drive off. When Hernandez 

approached the apartment from which he had seen the young woman run, 

he saw the door was open. Upon looking inside, he observed a body. 

Hernandez and another officer then entered the apartment and found the 

body of a man on his knees, with his head pushed against the couch and a 

1 Undesignated statutory references are to the Penal Code.

2 Petitioner also was convicted of other offenses, as described below.
3.

cushion over it. Hernandez also observed a young woman lying on the 

floor in a corner. 

“Hernandez called for assistance and while he was waiting for other 

officers to arrive, the young woman who had run out of the apartment 

returned. She was Veronica Winrow, a friend of Carr’s who had been 

dating him. Winrow had gone to the apartment where Carr was staying 

after talking to him on the telephone earlier that evening. When Winrow 

arrived at the apartment, she found the front door open and went inside. 

Winrow saw Carr kneeling on the floor with a pillow over his head and 

then saw another young woman lying on the floor. Winrow became 

frightened, ran back to the car she had arrived in and told the driver to 

leave. However, after they had driven a short distance Winrow decided to 

return. 

“The man’s body found in Logan’s apartment was Carr’s. He had 

been shot once in the head behind the left ear. The woman’s body was that 

of Mytra Falls, a college student. She had also been shot, the bullet 

entering her left shoulder, exiting the right side of her neck and lodging in 

her right shoulder. Analysis of the bullets recovered from Falls’ body and 

from the couch on which Carr was lying revealed they could have been 

fired from the same gun. 

“Falls had purchased cocaine from Carr on the afternoon of May 13, 

1992, and made arrangements to purchase more from him later that 

evening. Falls was last seen alive at approximately midnight on May 13th 

by a friend with whom she was staying and studying for final examinations. 

In the early morning hours of May 14th, Falls made a withdrawal of $60 

from her bank account using her ATM card. 

“On the evening of May 13th, Carr had been out to dinner with 

Athena Mack, who accompanied him back to Logan’s apartment where 

they watched a movie. Mack left Carr at the apartment at approximately 

12:00 or 12:30 a.m. At various times during the day and evening of May 

13th, Carr was seen with a large roll of money, and a small brown purse in 

which he often carried drugs, money, and jewelry. 

“On May 19, 1992, Detective Christian Curtice of the Fresno County 

Sheriff’s Department received information concerning an anonymous call 

which identified four people as being involved in the murders of Carr and 

Falls: George Mason, Vance Bradshaw, and defendants Jackson and Fane. 

Based on this tip all four men were arrested and interviewed. 
4.

“During the first interview of Jackson, he admitted knowing Carr, 

and previously purchasing cocaine from him. However, he claimed he did 

not see Carr on May 13th or 14th, and did not go to Carr’s apartment on 

those days. Jackson claimed to have been with his girlfriend all day. In a 

subsequent interview, Jackson admitted going to see Carr on the evening of 

May 13th with Fane, Mason, and Bradshaw to buy cocaine. Jackson stated 

he and Fane went into the apartment at about the same time a young woman 

arrived. Jackson claimed to have completed his purchase of cocaine from 

Carr and had returned to the car when he heard gunshots from inside the 

apartment. Jackson stated Fane then returned to the car. 

“When Fane was first interviewed, he denied going to Carr’s 

apartment the night the murders were committed and denied playing any 

part in them. Fane subsequently admitted going to Carr’s apartment but 

continued to deny he killed anyone. Fane stated he walked up to the 

apartment with Jackson, but did not go inside. He claimed that while he 

was standing outside, a young woman entered the apartment. Shortly 

thereafter, Fane stated he heard shots being fired. 

“Moore, who was Fane’s cousin, was called as a witness by the 

People and testified that during the late afternoon of May 13th, he was 

present while Bradshaw worked on Fane’s automobile. While Bradshaw 

was working on the engine, Fane had the trunk of his car open and was 

working on some stereo speakers. Moore stated he saw a handgun while 

the trunk was open. When he was with Bradshaw and Fane, Moore 

commented that he needed money and asked how he could ‘come up’ with 

some money. No one had any ideas, so Moore attempted to contact 

Jackson. Fane, Bradshaw, and Moore drove to Jackson’s apartment, picked 

him up and then returned to their neighborhood where they drank beer and 

tried to think of a ‘come up.’ Moore stated they needed a gun for selfprotection when they did the ‘come up,’ and Fane said he had one. 

“Moore testified that Jackson suggested they rob a drug dealer he 

knew, who he described as ‘a punk’ and who would be easy to rob. 

Jackson said they could just rough this person up, take what they wanted 

and leave. Moore stated all four men got into Fane’s car and Jackson gave 

Fane directions to Carr’s apartment. When they arrived, Moore saw 

Jackson and Fane get out of the car and walk toward an apartment building. 

Moore and Bradshaw remained in the car. After Jackson and Fane had 

been gone awhile, Moore heard what sounded like two gunshots. Jackson 

and Fane then returned, and they drove back to their neighborhood. 

“Moore testified that after they returned from Carr’s apartment, 

Jackson had a small ‘attache looking thing’ from which he took money, 
5.

cocaine and some rings. Moore testified Jackson divided up the contents of 

this purse with Fane and him, giving Moore some cocaine, money, and a 

ring. Moore subsequently sold the ring to a third person. The police 

recovered the ring and it was identified as one owned by Carr. After 

Jackson divided up the items in the purse, Moore asked him and Fane what 

happened. Fane did not say anything. However, Jackson said that while 

they were inside the apartment he told Fane to ‘take two’ and Fane shot 

both Carr and the young woman. Moore testified Jackson told him Carr 

seemed to be surprised that he was being robbed, and was bound, gagged, 

and on his knees when he was shot. 

“Bradshaw was called as a witness by the People and asserted his 

Fifth Amendment right to remain silent. A transcript of his testimony at the 

preliminary hearing was then read to the jury. During that testimony, 

Bradshaw stated he saw a handgun in the trunk of Fane’s car on May 13th. 

He also said Moore discussed a ‘come up’ with Fane, and that the three of 

them ultimately picked up Jackson. Jackson gave directions to Fane to 

drive to a location in an alley near some apartments. When they arrived, 

Jackson and Fane got out and went toward an apartment building while 

Bradshaw remained in the car with Moore. A short time later, Jackson and 

Fane returned to the car and they drove back to their neighborhood. When 

they arrived, Bradshaw saw a gun on the floorboard of the front seat. 

Bradshaw claimed he believed Fane was trying to ‘open’ the gun as they 

were driving away from Carr’s apartment. Bradshaw stated Moore and he 

went with Jackson to his apartment later that evening and he heard Jackson 

say that when he and Fane went in the apartment, that a girl was there and 

he told Fane to ‘take two.’ Bradshaw claimed Fane said, ‘that was a trip,’ 

and left to go to a motel to meet his girlfriend. Before he left, Fane gave a 

gun to Bradshaw who, in turn, gave it to a third person. 

“Bradshaw subsequently testified at trial, and reiterated much of 

what was in the transcript of his prior statement to the police. He also 

testified that when Jackson and Fane returned to the car from Carr’s 

apartment, they were breathing hard. Bradshaw stated he subsequently 

observed Jackson, Fane and Moore dividing up some money and cocaine as 

well as a ring which came from a small pouch. In addition, he testified that 

after they returned from Carr’s apartment, Jackson stated ‘all we got is an 

ounce of cocaine and some money.’ 

“Jackson testified in his own behalf and stated he was a good friend 

of Carr’s and had purchased cocaine from him on numerous occasions. He 

claimed he was using crack cocaine in the apartment of some friends on the 

evening of May 13th when Moore came to the door. Jackson testified 
6.

Moore wanted some cocaine and when Jackson said he did not have any, 

Moore suggested getting it from Carr. After obtaining money to buy some 

cocaine, Jackson drove with Moore, Fane and Bradshaw to a pay telephone 

and called Carr. Jackson claimed he did not hear any discussion about a 

‘come up,’ or a robbery. He also testified there was no discussion about 

needing a gun and he never saw anyone with a gun. Jackson then gave 

Fane directions to Carr’s apartment. Jackson testified that when they 

arrived in the alley outside Carr’s apartment, he learned for the first time 

that Fane would be going in with him to purchase cocaine. As they 

approached Carr’s apartment, Jackson stated a young woman was also 

walking up to the door, and she also entered Carr’s apartment. 

“When they entered, Carr was seated on the couch. Jackson sat on 

one side of Carr, the girl sat on the other, and Fane stood in front of him. 

Jackson testified Carr gave him a bag of cocaine, and Jackson paid him for 

it. Carr then produced another bag of cocaine which Jackson handed to 

Fane. Jackson stated at that point he got up and started walking toward the 

door when he heard a gunshot. He turned around and saw Fane standing 

over Carr and the girl starting to run. Jackson testified he immediately 

turned and started out the door when he heard another gunshot.

“Jackson said after the shots were fired he went back to the car, and 

when Fane arrived they drove to their neighborhood. Jackson claimed there 

was never any subsequent discussion about the robbery, he did not take any 

money or rings, and he did not see Fane with any money, rings or a pouch. 

Jackson testified that after leaving Carr’s apartment, they went to Fane’s 

house where they used cocaine. He stated the only time he said ‘take two’ 

was during a conversation with Bradshaw and Moore a day or two after the 

murders when he was discussing how much cocaine he was going to give 

Bradshaw to sell. It was during this conversation that he said ‘take two,’ 

meaning Bradshaw should take two rocks of crack cocaine to sell. Jackson 

stated he saw Moore sell a ring a day after the murders, but he did not know 

where Moore got the ring or that it was Carr’s. 

“Fane testified that on May 13th Bradshaw was working on Fane’s 

car when Moore came by. Fane stated he dealt drugs, had run out earlier 

that day, and was looking for some more. Moore told Fane he could get 

some cocaine, and the three of them drove to Jackson’s apartment to pick 

him up. Fane stated he had never met Jackson before. After they picked 

him up, Jackson told Fane to drive to Carr’s apartment. When they arrived, 

Fane got out of the car with Jackson and walked toward an apartment 

building. When they got to the door, Jackson told Fane he would have to 

wait outside. Fane testified he gave Jackson some money with which to 
7.

purchase cocaine for him and Jackson entered an apartment. While Fane 

was waiting outside, a young woman walked up to the same apartment that 

Jackson had entered and went inside. Shortly after the woman arrived, 

Fane heard what sounded like two gunshots from inside the apartment. 

Fane claimed Jackson then came out of the apartment and said he got the 

‘stuff.’ Both men returned to the car and drove back to their neighborhood. 

“Fane stated that when they arrived, Jackson said he could not get 

any cocaine and gave Fane his money back. Fane testified he then left the 

other three men and went to a motel where he met his girlfriend. Fane 

denied ever having a gun in his car or ever hearing any discussion about a 

‘come up.’ He also denied seeing anyone else with a gun during the 

evening of May 13th or the early morning hours of May 14th.” (People v. 

Jackson (Aug. 17, 1998, F024945) [nonpub. opn.].) 

On June 16, 1995, a jury convicted petitioner of two counts of first degree murder 

(§ 187; counts one-two), and one count of first degree robbery (§§ 211, 212.5; count 

three). The jury additionally found true two special circumstances: that the murder of 

Carr was committed during the commission of a robbery (§ 190.2, subd. (a)(17)), and that 

multiple murders were committed (§ 190.2, subd. (a)(3)). As to counts one and two, the 

jury also found true that petitioner personally used a firearm (§ 12022.5, subd. (a)). 

On October 6, 1995, the court sentenced petitioner on counts one and two to 

consecutive terms of life without the possibility of parole. As to count one, the court 

reduced the firearm enhancement (§ 12022, subd. (a)(1)), and imposed an additional oneyear term. Sentence on count three, and on the reduced firearm enhancement to count 

two (§ 12022, subd. (a)(1)), was imposed and stayed. (§ 654.) 

On appeal, this court affirmed. (People v. Jackson, supra, F024945.)

On January 28, 2019, petitioner, in propria persona, filed a petition for 

resentencing pursuant to section 1170.95. In the form petition, petitioner stated that 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 was convicted of first or second degree murder at trial; and he 

could not now be convicted of first or second degree murder because of changes made to 
8.

sections 188 and 189, effective January 1, 2019. He further averred that he was not the 

actual killer, did not act with an intent to kill, and was not a major participant in the 

underlying felony or did not act with reckless indifference to human life in the course of 

the crime. 

On March 29, 2019, the People filed a motion to dismiss the petition, arguing 

section 1170.95 is unconstitutional.

3

 The People simultaneously filed an opposition on 

the merits to petitioner’s petition. On April 3, 2019, the People filed an amended 

opposition on the merits, arguing the jury’s finding on the robbery-murder and multiplemurder special circumstances precluded petitioner from making a prima facie showing 

that his conviction falls within the provisions of section 1170.95. 

On June 4, 2019, the court appointed counsel to represent petitioner. 

On February 24, 2020, petitioner filed a reply to the People’s opposition on the 

merits. On May 22, 2020, petitioner filed a supplemental reply brief. On July 1, 2020, 

the People filed a supplemental opposition, arguing the facts underlying the offenses 

supported a finding that petitioner was a major participant in the underlying felony who 

acted with reckless indifference to human life. 

On July 17, 2020, the court held a hearing and denied the petition. The court 

considered the facts underlying the offenses and determined that petitioner did not make 

out a prima facie case for resentencing relief because he was a major participant in the 

underlying felony who acted with reckless indifference to human life. 

This timely appeal followed. 

DISCUSSION

I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95 

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 

Reg. Sess.) “to amend the felony murder rule and the natural and probable consequences 

3 The motion was fully briefed and eventually denied by the court. 
9.

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).) 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 felony-murder 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 

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.”4 (§ 189, subd. (e); accord, Gentile, at p. 842.)

Finally, the bill “added section 1170.95 to provide a procedure for those convicted of 

felony murder or murder under the natural and probable consequences doctrine to seek 

relief under the two ameliorative provisions above.”

5

 (Gentile, at p. 843.)

“Section 1170.95 lays out a process for a person convicted of felony murder or 

murder under a natural and probable consequences theory to seek vacatur of his or her 

4 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, review granted Feb. 24, 2021, S266336.)

5 The Legislature recently passed, and the Governor signed, a bill amending section 

1170.95. (Sen. Bill No. 775 (2021-2022 Reg. Sess.).) The amendments are not yet 

effective (Cal. Const., art. IV, § 8, subd. (c)(1)) and, in any event, would not alter our 

analysis. We quote from the version of section 1170.95 presently in effect.
10.

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 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.’ (§ 1170.95, subd[]. (a)(1)-(3); see also § 1170.95,

subd. (b)(1)(A).) Additionally, the petition shall state ‘[w]hether the petitioner requests 

the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply 

with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of 

another petition.’ (§ 1170.95, subd. (b)(2).)” (People v. Lewis (2021) 11 Cal.5th 952, 

959-960 (Lewis).)

Where the petition complies with the requirements of section 1170.95, subdivision 

(b)(1), counsel must be appointed, if requested. The prosecutor must file a response and 

the petitioner may file a reply. The trial court must then review the petition to determine 

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

(§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this 

determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.) 

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.’ ” (Lewis, at pp. 971-972.) 

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 conviction and to resentence the petitioner on any remaining counts.

(§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a 
11.

reasonable doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95, 

subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of conviction or 

offer new or additional evidence to meet their respective burdens.’ (Ibid.)” (Gentile,

supra, 10 Cal.5th at p. 853.)

To demonstrate prejudice from the denial of a section 1170.95 petition before the 

issuance of an order to show cause, the petitioner must show it is reasonably probable 

that, absent error, his or her petition would not have been summarily denied without an 

evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson

(1956) 46 Cal.2d 818, 836.)

II. The Petition was Properly Denied 

Petitioner contends he set forth a prima facie claim for relief and the trial court 

erred in denying his petition without issuing an order to show cause. We conclude the 

petition was properly denied at the prima facie stage because the jury’s special

circumstance findings establish petitioner is ineligible for resentencing as a matter of law. 

A. Multiple-Murder Special Circumstance 

To be eligible for relief pursuant to section 1170.95, petitioner must not have been 

the actual killer, must not have acted with the intent to kill, and must not have been a 

major participant in the underlying felony who acted with reckless indifference to human 

life. (§§ 189, subd. (e), 1170.95, subd. (a)(3); see Gentile, supra, 10 Cal.5th at p. 842.) 

Here, the jury found true a multiple-murder special circumstance pursuant to section 

190.2, subdivision (a)(3), which imposes a sentence of death or life without the 

possibility of parole when the defendant is convicted of more than one offense of murder 

in the first or second degree. To make such a finding, the jury was required to find that 

petitioner intended to kill the victims. (§ 190.2, subds. (a)(3), (c).) The jury therefore 

found facts sufficient to sustain the murder conviction under section 189, as amended by 

Senate Bill No. 1437 (2017-2018 Reg. Sess.). Petitioner is ineligible for resentencing as 
12.

a matter of law, and the court was not required to issue an order to show cause. The 

petition was properly denied.6 (Lewis, supra, 11 Cal.5th at pp. 970-971.) 

B. Robbery-Murder Special Circumstance

Moreover, the robbery-murder special circumstance provides an additional basis 

for affirming the denial of the petition. To find this special circumstance true, the jury 

was required to find that petitioner acted “with reckless indifference to human life and as 

a major participant” in aiding or abetting the commission of the underlying felony. 

(§ 190.2, subd. (d); People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419.) In 

other words, “[t]he language of the special circumstance tracks the language of Senate 

Bill [No.] 1437 and the new felony-murder statutes.” (Gutierrez-Salazar, at p. 419.) By 

finding this special circumstance true, the jury made the requisite findings necessary to 

sustain a felony-murder conviction under the amended law. Like the multiple-murder 

special circumstance, the jury’s findings on the robbery-murder special circumstance 

establishes that petitioner is ineligible for resentencing as a matter of law.

Nonetheless, petitioner argues the special-circumstance finding, standing alone, is 

insufficient to render him ineligible for resentencing as a matter of law. In support, he 

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

Cal.4th 522 (Clark), both decided after his conviction was final.

First, Banks and Clark have no bearing on the multiple-murder special 

circumstance, which requires intent to kill, rather than reckless indifference to human life 

by a major participant. Thus, the multiple-murder special circumstance provides an 

independent basis for affirming the denial of the petition, irrespective of any changes in 

the law rendered by Banks and Clark.

6 Although this rationale was not relied on by the trial court, we may uphold the 

court’s ruling if it is supported by any legally correct theory. (People v. Brooks (2017) 3 

Cal.5th 1, 39.) 
13.

Second, “Banks and Clark ‘clarified “what it means for an aiding and abetting 

defendant to be a ‘major participant’ in a crime who acted with a ‘reckless indifference to 

human life.’ ” ’ [Citation.] Banks identified certain factors to consider in determining 

whether a defendant was a major participant; Clark identified factors to guide the 

determination of whether the defendant acted with reckless indifference to human life.”

(People v. Gomez (2020) 52 Cal.App.5th 1, 13, fn. 5, review granted Oct. 14, 2020, 

S264033 (Gomez).) Courts of Appeal are split on the question of whether a special

circumstance finding entered prior to Banks and Clark renders a petitioner ineligible for 

section 1170.95 resentencing relief as a matter of law (see People v. Jones (2020) 56 

Cal.App.5th 474, 478-479 [collecting cases], review granted Jan. 27, 2021, S265854 

(Jones)), and our Supreme Court has granted review to decide the issue (People v. Strong 

(Dec. 18, 2020, C091162) [nonpub. opn.], review granted Mar. 10, 2021, S266606). 

Courts which have held that a pre-Banks and Clark felony-murder specialcircumstance finding bars section 1170.95 resentencing relief have reasoned that Banks 

and Clark merely clarified the law as it always was. (Jones, supra, 56 Cal.App.5th at 

pp. 482, 484, review granted; accord, People v. Nunez (2020) 57 Cal.App.5th 78, 92, 

review granted Jan. 13, 2021, S265918; People v. Allison (2020) 55 Cal.App.5th 449,

458.) These courts further note that our Supreme Court does not require juries to be 

instructed on the Banks and Clark clarifications. “Rather, while CALCRIM No. 703 now 

includes optional language drawn from Banks and Clark regarding the factors a jury may 

consider, ‘[t]he bench notes to the instruction state that Banks “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.” ’ ” (Nunez, at pp. 92-93;

accord, Jones, at p. 484; Allison, at pp. 458-459.) Thus, these courts found “no basis to 

conclude as a general matter that a pre-Banks and Clark jury was instructed differently 

than a post-Banks and Clark jury, or resolved different factual issues, answered different 

questions, or applied different standards.” (Nunez, at p. 94.) 
14.

These courts have also held that an attack on a special circumstance finding in a 

section 1170.95 proceeding effectively constitutes a collateral attack on the judgment. 

(People v. Galvan (2020) 52 Cal.App.5th 1134, 1142, review granted Oct. 14, 2020, 

S264284; Gomez, supra, 52 Cal.App.5th at p. 16, review granted.) According to these 

courts, a petitioner who wishes to argue the special circumstance finding is invalid under 

current law must first seek to invalidate that finding through a petition for writ of habeas 

corpus before seeking resentencing pursuant to section 1170.95. (Galvan, at p. 1142; 

Gomez, at p. 17; Jones, supra, 56 Cal.App.5th at p. 485, review granted.) These courts 

reason that a contrary interpretation “would read into section 1170.95 a new procedure 

allowing petitioners to ignore a special circumstance finding—no matter how well 

supported in the record—as well as the recognized method of challenging it. Such 

petitioners would be allowed to relitigate a prior jury finding at an evidentiary hearing 

where the prosecution bears the burden of proving the truth of the finding, beyond a 

reasonable doubt, a second time.” (Jones, at p. 485.)

On the other hand, courts that have found a special circumstance finding 

insufficient to render a petitioner ineligible for relief have reasoned that Banks and Clark

“construed section 190.2, subdivision (d) in a significantly different, and narrower 

manner than courts had previously construed the statute.” (People v. Torres (2020) 46 

Cal.App.5th 1168, 1179, review granted June 24, 2020, S262011, abrogated on another 

ground by Lewis, supra, 11 Cal.5th at pp. 962-963; accord, People v. Harris (2021) 60 

Cal.App.5th 939, 958, review granted Apr. 28, 2021, S267802.) Thus, these courts 

surmised that a petitioner with a pre-Banks and Clark special circumstance finding may 

have been convicted based on “conduct that is not prohibited by section 190.2 as 

currently understood.” (Torres, at p. 1180; accord, Harris, at p. 958; People v. York

(2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954; People v. 

Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835.) To the 

extent the jury’s finding on a felony-murder special circumstance is legally insufficient 
15.

under Banks and Clark, it cannot refute a prima facie showing of entitlement to 

resentencing relief. (People v. Secrease (2021) 63 Cal.App.5th 231, 256.) Accordingly, 

in considering whether a petitioner is entitled to relief pursuant to section 1170.95, the 

trial court must first determine whether “the evidence presented at trial was sufficient to 

support the felony-murder special-circumstance finding under Banks and Clark.” 

(Secrease, at p. 264.) 

A panel of this court has recently resolved to follow the line of authority holding 

that a special circumstance finding precludes relief as a matter of law. (People v. 

Simmons (2021) 65 Cal.App.5th 739, 748-749, review granted Sept. 1, 2021, S270048.) 

We agree. Banks and Clark did not state a new rule of law. Rather, they relied on the 

United States Supreme Court’s decisions in Enmund v. Florida (1982) 458 U.S. 782 and 

Tison v. Arizona (1987) 481 U.S. 137 to clarify principles that had long been in existence 

at the time petitioner was convicted. (See In re Miller (2017) 14 Cal.App.5th 960, 978; 

accord, People v. Allison, supra, 55 Cal.App.5th at p. 458; Gomez, supra, 52 Cal.App.5th 

at p. 13, fn. 5, review granted.) Enmund prohibited felony-murder liability for a 

defendant that “did not commit the homicide, was not present when the killing took 

place, and did not participate in a plot or scheme to murder,” and explained that, to be 

liable for felony murder, the aider and abettor must himself “kill, attempt to kill, or intend 

that a killing take place or that lethal force will be employed.” (Enmund, at pp. 795, 

797.) Tison held that, “major participation in the felony committed, combined with 

reckless indifference to human life, is sufficient to satisfy the Enmund culpability 

requirement.” (Tison, at pp. 151, 158.) As Banks noted, this language from Tison was 

later codified by the California electorate in section 190.2, subdivision (d). (Banks,

supra, 61 Cal.4th at p. 800.) To the extent Banks and Clark illuminated factors a fact 

finder might consider in determining whether a defendant was a major contributor who 

acted with reckless indifference to human life, they drew those factors from Edmund and 

Tison. (See Banks, at pp. 801, 803; see also Clark, supra, 63 Cal.4th at pp. 615, 618-
16.

623.) These principles existed when petitioner was convicted and, absent a determination 

on direct appeal or in habeas that the evidence was insufficient to support the jury’s 

finding, there is no basis to conclude petitioner’s jury applied different standards than 

those described in Banks and Clark.

C. Due Process

Finally, we reject petitioner’s assertion that the denial of his petition without 

issuance of an order to show cause violated his constitutional rights to due process. Due 

process is implicated when the state attempts to deprive a defendant of some liberty 

interest. (Hewitt v. Helms (1983) 459 U.S. 460, 466, abrogated on another point by 

Sandin v. Conner (1995) 515 U.S. 472, 483, fn. 5.) But petitioner is “categorically 

ineligible for relief under section 1170.95.” (People v. Tarkington (2020) 49 Cal.App.5th 

892, 908, review granted Aug. 12, 2020, S263219, abrogated on another ground by 

Lewis, supra, 11 Cal.5th at pp. 962-963.) He thus had no liberty interest in any of the 

procedures afforded by section 1170.95, subdivision (c). (See Tarkington, at p. 908.) 

DISPOSITION

The order is affirmed.