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Filed 1/13/23 P. v. Reed CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

BERNARD KRUNGGERUND REED,

Defendant and Appellant.

C093055

(Super. Ct. No. 10F05764)

OPINION ON TRANSFER

A jury found petitioner Bernard Krunggerund Reed guilty of first degree murder 

occurring during a robbery in 2010. The jury also found true robbery-murder special 

circumstances for the murder. Petitioner petitioned the trial court for resentencing under 

Penal Code1section 1172.62 based on changes made to the felony-murder rule by Senate 

1 Undesignated statutory references are to the Penal Code.

2 Effective June 30, 2022, the Legislature renumbered former section 1170.95 as 

section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the 
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Bill No. 1437 (2017-2018 Reg. Sess.). The trial court denied the petition, finding 

evidence from petitioner’s trial established petitioner was ineligible for resentencing. On 

appeal, petitioner argued the trial court erred in conducting a factual analysis of the 

special-circumstance finding to disqualify him for relief. We disagreed and affirmed the

trial court’s order. (People v. Reed (Dec. 15, 2021, C093055) [nonpub. opn.].)

Our Supreme Court granted review but deferred further action pending the 

disposition in People v. Strong (2022) 13 Cal.5th 698 (Strong). Following its decision, 

our Supreme Court transferred this matter back to us with directions to vacate our 

decision and reconsider in light of Strong. 

We now conclude the trial court’s denial of the petition is inconsistent with section 

1172.6 and Strong. Accordingly, we reverse and remand for further proceedings. 

FACTUAL AND PROCEDURALBACKGROUND

We take the basic facts of petitioner’s case from our opinion in his original appeal. 

(People v. Reed (Mar. 18, 2015, C071276) [nonpub. opn.] (Reed).)

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 On September 2, 

2010, petitioner and Kelvin Arnell Peterson robbed a pharmacy that Peterson had robbed 

by himself three weeks prior. Peterson handed a note to a pharmacy technician reading,

“We want all 800 Oxycontin. We will kill you.” As the technician went to the back, the 

owner of the store activated the silent alarm while petitioner took cash from one of the 

registers. When the owner handed Peterson the store’s supply of Oxycontin, Peterson 

pointed a gun at the owner’s head and said, “I want more.” The owner’s son, who also 

worked at the pharmacy, feared for his father’s life and pulled out a gun but it failed to 

statute. Although petitioner filed his petition under former section 1170.95, we cite to 

section 1172.6 throughout this opinion. 

3 On our own motion, we take judicial notice of this prior decision. (Evid. Code, 

§ 452, subd. (d).) We provide this summary of facts from the prior opinion in 

defendant’s direct appeal solely for context and do not rely on these facts for our analysis 

or disposition here. (See § 1172.6, subd. (d)(3).) 
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fire. After retreating to the back of the store, the son was able to fire at Peterson and a 

gunfight ensued. Tania Gurskiy, a pharmacy clerk, was shot in the head and died as a 

result, and another employee was shot in the foot. Petitioner was arrested a week later at 

a Reno motel. (Ibid.)

The jury found petitioner guilty of first degree murder and robbery, found true the 

special circumstance Gurskiy’s murder occurred during the commission of a robbery, and 

found true the allegation he was vicariously armed with a firearm during the commission 

of the robbery/murder. The trial court also found true the allegation petitioner had one 

prior serious felony conviction within the meaning of sections 667, subdivisions (b)

through (i), and 1170.12. (Reed, supra, C071276.)

Petitioner appealed, arguing, among other issues, that there was insufficient 

evidence to support the robbery-murder special-circumstance finding as to him, 

specifically that he acted with reckless indifference to human life. After reviewing the 

evidence, we concluded, “Substantial evidence supports the jury’s finding [petitioner]

acted with reckless indifference to human life.” (Reed, supra, C071276.) We dismissed 

petitioner’s other claims and affirmed the judgment. (Ibid.)

On April 3, 2019, petitioner filed a petition for resentencing under section 1172.6

alleging he could not now be convicted of murder because of the changes made to 

sections 188 and 189. The petition alleged he was not the actual killer, did not aid or abet 

the murder with the intent to kill, and was not a major participant in the felony or acted

with reckless indifference to human life. The prosecution filed a response and a motion 

to dismiss and petitioner’s counsel filed an opposition. 

On October 22, 2020, the trial court issued a written order denying the petition. 

The court found petitioner had not made a prima facie showing because the “facts and 

reasonable inferences” drawn from the trial evidence show petitioner was “a major 

participant in the underlying felony and acted with reckless indifference to human life.” 

The trial court then detailed the relevant facts elicited from petitioner’s trial that 
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demonstrated his ineligibility for resentencing under section 1172.6. The opinion also 

noted our finding in petitioner’s direct appeal that substantial evidence supported the 

jury’s determination that petitioner acted with reckless indifference to human life. 

DISCUSSION

I

Applicable Law

Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, revised 

the felony-murder rule in California “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 amended the definition of malice in 

section 188, revised the definition of the degrees of murder to address felony-murder 

liability in section 189, and added section 1172.6, “which provides a procedure by which 

those convicted of murder can seek retroactive relief if the changes in the law would 

affect their previously sustained convictions.” (People v. Gutierrez-Salazar (2019) 

38 Cal.App.5th 411, 417, citing Stats. 2018, ch. 1015, §§ 2-4.) 

Section 1172.6, subdivision (a) states a person convicted of felony murder or 

murder under a natural and probable consequences theory may file a petition with the 

court for resentencing “when all of the following conditions apply: [¶] (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 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. 
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[¶] (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.” 

Section 1172.6, subdivision (b) requires the petitioner to submit a declaration that 

avers eligibility for relief under the statute (based on the requirements of subdivision (a)) 

and states the superior court case number, the year of conviction, and whether the 

petitioner requests appointment of counsel. (§ 1172.6, subd. (b).) Section 1172.6, 

subdivision (c), which dictates how the court must handle the petition, reads: “Within 60 

days after service of a petition that meets the requirements set forth in subdivision (b), the 

prosecutor shall file and serve a response. The petitioner may file and serve a reply 

within 30 days after the prosecutor’s response is served. These deadlines shall be 

extended for good cause. After the parties have had an opportunity to submit briefings, 

the court shall hold a hearing to determine whether the petitioner has made a prima facie 

case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled 

to relief, the court shall issue an order to show cause. If the court declines to make an 

order to show cause, it shall provide a statement fully setting forth its reasons for doing 

so.”

Section 1172.6, subdivision (d)(1) provides that a hearing to determine whether to 

vacate the murder conviction, recall the sentence, and resentence the petitioner as needed 

should be held within 60 days after the order to show cause. The prosecution bears the 

burden of proving beyond a reasonable doubt that the petitioner is ineligible for 

resentencing. (§ 1172.6, subd. (d)(3).) At the hearing, “[t]he admission of evidence in 

the hearing shall be governed by the Evidence Code, except that the court may consider 

evidence previously admitted at any prior hearing or trial that is admissible under current 

law, including witness testimony, stipulated evidence, and matters judicially noticed. 

The court may also consider the procedural history of the case recited in any prior 

appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing 

pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, 
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unless the evidence is admissible pursuant to another exception to the hearsay rule.” 

(Ibid.) 

II

Special Circumstances After Banks and Clark

Section 190.2, subdivision (d) provides that special-circumstance findings based 

on the enumerated felonies in paragraph (17) of subdivision (a)⸺which includes 

robbery⸺require that an aiding and abetting defendant must have been a “major 

participant” and have acted “with reckless indifference to human life.” (§ 190.2, 

subd. (d); see People v. Banks (2015) 61 Cal.4th 788.) Thus, on its face, a specialcircumstance finding satisfies the requirements for accomplice murder liability even after 

Senate Bill No. 1437. (See § 189, subd. (e) [providing where “[a] participant in the 

perpetration” of a robbery “in which a death occurs is liable for murder” if proven to have 

been “a major participant in the underlying felony and acted with reckless indifference to 

human life, as described in subdivision (d) of Section 190.2”].) Since petitioner’s 

conviction, however, our Supreme Court has refined the analysis for determining who 

qualifies as a major participant acting with reckless indifference to human life in Banks

and People v. Clark (2016) 63 Cal.4th 522. 

In People v. Banks, supra, 61 Cal.4th at page 803, our Supreme Court identified a 

series of considerations, none of which are “necessary, nor is any one of them necessarily 

sufficient,” for determining whether a defendant was a major participant. These include 

the defendant’s role in planning the crime and in “supplying or using lethal weapons”; the 

defendant’s awareness of “particular dangers posed by the nature of the crime”; whether 

the defendant was “present at the scene of the killing, in a position to facilitate or prevent 

the actual murder”; whether the defendant’s own “actions or inaction play[ed] a particular 

role in the death,” and what the defendant did “after lethal force was used.” (Ibid.) 

Similarly, in People v. Clark, supra, 63 Cal.4th at page 617, our Supreme Court 

found reckless indifference to “encompass[] a willingness to kill (or to assist in another 
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killing) to achieve a distinct aim.” It provided a nonexhaustive list of factors to consider 

in making this determination, including use or awareness of the presence of a weapon or 

weapons, physical presence at the scene and opportunity to restrain confederates or aid 

victims, duration of the crime, knowledge of any threat the confederates might represent, 

and efforts taken to minimize risks. (Id. at pp. 618-623.) 

In Strong, supra, 13 Cal.5th 698, our Supreme Court addressed the impact of 

Banks and Clark on section 1172.6 petitions for defendants with special-circumstance 

findings. The Court found “Banks and Clark both substantially clarified the law 

governing findings under Penal Code section 190.2, subdivision (d)” as they “represent 

the sort of significant change that has traditionally been thought to warrant reexamination 

of an earlier-litigated issue.” (Strong, at pp. 706, 717.) Thus, prior special-circumstance 

findings made “before Banks and Clark do not preclude a defendant from making out a 

prima facie case for relief under Senate Bill [No.] 1437. This is true even if the trial 

evidence would have been sufficient to support the findings under Banks and Clark.” (Id.

at p. 710.) A defendant with a special-circumstance finding who files a section 1172.6 

petition may ultimately be found to be ineligible for relief, but it must be determined 

beyond a reasonable doubt the defendant was a major participant who acted with reckless 

indifference to human life under the Banks/Clark analyses. (Strong, at p. 720.) Though a 

special-circumstance finding may be challenged through a habeas corpus petition, 

“nothing in section 1172.6 says that a defendant must always do so before seeking 

resentencing.” (Id. at p. 713, italics omitted.) 

III

Petitioner Is Not Barred From Relief As A Matter Of Law

Petitioner argues that the special-circumstance finding did not establish by law 

that he was ineligible for relief under section 1172.6. Petitioner concedes the “jury 

necessarily determined that [petitioner] acted with reckless indifference to human life, 

and was a major participant in the robbery.” But he argues these findings are not fatal to 
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his appeal because our Supreme Court clarified the special circumstance analysis after his 

conviction in Banks and Clark. The People concede in supplemental briefing that the 

order denying petitioner’s petition must be reversed and the matter remanded to the 

superior court for further proceedings. 

We originally concluded petitioner failed to make a prima facie showing and 

failed to demonstrate error in the trial court’s reliance on the jury’s special-circumstance 

findings. We also found that the trial court’s analysis based on the “facts and reasonable 

inferences” from petitioner’s trial was improper but not prejudicial given the validity of 

the special-circumstance finding. In light of Strong, these conclusions are no longer 

valid. 

Although the requirements for the felony-murder special circumstance did not 

change as a part of Senate Bill No. 1437, and are identical to the new requirements for 

felony murder following the enactment of Senate Bill No. 1437, petitioner is not barred 

from making a prima facie case for relief based on the pre-Banks/Clark specialcircumstance finding and was not required to first challenge the finding via habeas corpus 

proceedings. (Strong, supra, 13 Cal.5th at pp. 710, 713.) The trial court’s statements to 

the contrary are inconsistent with section 1172.6 as clarified by Strong. And the factual 

analysis it performed did not properly consider the analysis under Banks and Clark, nor 

did it adhere to the evidentiary hearing procedural requirements of section 1172.6, 

subdivision (d). These deficiencies cannot be overcome by the special-circumstance 

finding, as we originally found. It was thus error to deny the petition without issuing an 

order to show cause.4 

4 The trial court relied, in part, on our conclusion in petitioner’s direct appeal that 

there was substantial evidence supporting the jury’s special-circumstance finding. As 

that opinion was filed before Banks, Clark, and Strong, its findings are no longer binding 

on this point. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491-492 [law of the 

case doctrine is not applied “where the controlling rules of law have been altered or 
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Having made a prima facie case for relief, petitioner now is entitled to an 

evidentiary hearing under section 1172.6, subdivision (d)(3). We shall, therefore, remand 

this matter to the trial court with instructions to issue an order to show cause and hold an 

evidentiary hearing on the petition. 

DISPOSITION

The order denying the petition is reversed. The case is remanded to the trial court 

for issuance of an order to show cause and to hold an evidentiary hearing on the petition.

/s/ 

Robie, Acting P. J.

We concur:

/s/ 

Hull, J.

/s/ 

Duarte, J.

clarified by a decision intervening between the first and second appellate 

determinations”].)