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Filed 1/3/23 P. v. Ellis CA3 Opi nio n following transfer from Supreme Court NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
GERALD ELLIS,

Defendant and Appellant. C092613
(Super. Ct. No. 05F03831)

OPINION ON TRANSFER

Defendant Gerald Ellis challenges the trial court ’ s denial of his petition for resentencing under Penal Code section 1 117 2.6 2 based on changes made to the felony

murder rule by Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) (Senate Bill 1437).

1 U nspecified statutory section citations that follow are to the Penal Code

. 2 Effective June 20, 2022, former section 1170.95 was recodified without substantive change to section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed his petition under former section 1170.95, but we will refer to the current section number through out this opinion.2

Defendant argued the trial court erred in relying on the jury ’ s special circumstance finding to deny his petition.
I n an unpublished opinio n, we affirmed the court’s order denying defendant’s resentencing petition, holding that the jury’s true special circumstance findings, which had not been set aside through habeas, precluded relief under section 1172.6 as a matter of law. ( People v. Ellis (Dec. 13, 2021, C092613) [nonpub. opn.].) The California Supreme Court subsequently granted review and transferred the matter back to us with directions to vacate our opinion and reconsider the cause in light
of People v. Strong (2022) 13 Cal.5th 698 ( Str ong ). By separate order, we vacated our
decision. In supplemental briefing after transfer, the parties agree that under Strong the jury’s true findings on the robbery

- murder and burglary

- murder special circumstance allegations, which were made before ou r Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 ( Banks ) and People v. Clark (2016) 63 Cal.4th 522 ( Clark ) clarified what it means to be a major participant who acts with reckless indifference to human life, do not render defendant inel igible for relief as a matter of law. Having reconsidered the matter, we agree and will reverse and remand for further proceedings
under section 1172.6.


### F ACTS AND 

### H ISTORY OF THE 

### P ROCEEDINGS Defendant participated in a home invasion robbery with three others. ( People v.
Ellis (Mar. 5, 2008, C054797) [nonpub. opn.] ( Ellis ).) 3 During the robbery, one of the
assailants shot and killed Donald Willis. ( Ellis , at p

. 3 .) The jury convicted defendant of

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).)3

first degree robbery in concert and first degree murd er, and found the murder occurred during the commission of a robbery ( Pen. Code, § 190.2, subd. (d))

. He was sentenced to life without the possibility of parole. ( Ellis, at p. 1.) Defendant appealed, arguing there was insufficient evidence to support the robbery

- murder special circumstance. ( Ellis, supra , C054797 at p. 1.) We affirmed, finding there was substantial evidence defendant both acted with reckless disregard for human life and was a major participant in the robbery. ( Id . at pp. 11, 12.)
On February 13, 2019, defendant filed a form petition for resentencing pursuant to
section 1172.6 . On the form, he checked various boxes stating that a complaint was filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, that at trial he was convicted of first or second degree murder pursuant to the felony

- murder rule or the natural and probable consequences doctrine, and that he could not now be convicted of
fi rst or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. Defendant also checked the boxes stating that he was not the actual killer, did not aid or abet with the intent to kill, and was not a major participan t in the felony or acted with reckless indifference to human life. The prosecutor filed a response and motion to dismiss and defense counsel filed an opposition. On July 2 3 , 2020, the trial court filed a written order denying the petition. The
trial co urt provided two reasons, firs t that : “In finding the robbery

- murder special circumstance true, the jury necessarily found that [defendant] either was the actual killer, acted with intent to kill, or was a major participant in the robbery who acted with r eckless indifference to human life. And, on appeal, the Third District C ourt of Appeal held that the evidence was sufficient to show that [defendant] had been a major participant in the robbery who acted with reckless indifference to human life

. . . .” Second, t he trial court found defendant could not challenge the validity of the special circumstance finding4

under the recent California Supreme Court cases Banks and Clark through a section
1172.6 petition. But even if defendant could, the trial court ci t ed the facts of defendant ’ s case from our prior opinion and found that the special circumstance w ould still be valid
even after Banks and Clark

. 

### D ISCUSSION

Defendant originally argue d the trial court was required to issue an order to show cause because his petition established a prima facie showing of eligibility under section
1172.6 . He argued the trial court erred in summarily denying defendant ’ s petition on the special circumstance finding because , in Banks and Clark decided after his trial, our Supreme Court modified the analysis for “major participant” and “ reckless indifference

to human life

. ” In supplemental briefing, the parties now agree, as do we, that the trial
court erred in denying defendant’s petition. Senate Bill 1437 amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, “to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 achieves these goals by amending section 188 to require th at a principal act with express or implied malice (§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state that a person can be liable for felony murder only if: (1) the “person was the actual killer”; (2) the person, with a n intent to kill, was an aider or abettor in the commission of murder in the first degree; or (3) the “person was a major participant in the underlying felony and acted with reckless indifference to human life.” (§ 189, subd. (e), as amended by Stats. 201 8, ch. 1015, § 3.) As pertinent here, Senate Bill 1437 also added what is now section 1172.6, which permits a person convicted of felony murder or murder under a natural and probable5

consequences theory to petition the sentencing court to vacate the murder conviction and resentence the person on any remaining counts if, among other things, the petitioner could not be convicted of first or second degree murder due to the change in the law. (§ 1172.6, subd. (a).) Upon submission of a facially sufficient pet ition that requests counsel, the court shall appoint counsel and provide the parties an opportunity to submit briefs. (§ 1172.6, subds. (b)(3), (c).) Following briefing, the court must hold a hearing to determine whether the petitioner has made a prima f acie case for relief. (§ 1172.6, subd. (c).) If a sufficient prima facie showing is made, the court must issue an order to show cause. (§1172.6, subds. (c), (d).) The prima facie inquiry under section 1172.6, subdivision (c) is “limited.” ( People v. L ewis (2021) 11 Cal.5th 952, 971.) The court “ ‘ “takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.” ’ ” ( Ibid. ) Although the court may rely on the record of conviction (including a prior appellate court opinion) in determining whether defendant has made a prima facie showing, the court “should not engage in ‘factfinding involving the weighing of evidence or the exer cise of discretion.’ ” (

Id. at p. 972.) Since defendant’s convictions, the Supreme Court has refined the analysis for who qualifies as a major participant acting with reckless indifference to human life in Banks
and Clark . ( People v. Torres (2020) 46 Cal .App.5th 1168, 1179, abrogated on other grounds in People v. Lewis, supra , 11 Cal.5th at p. 963.) After we rejected defendant’s claims in our previous opinion, our Supreme Court decided Strong , which concluded: “Findings issued by a jury before Banks and Clark do not preclude a defendant from making out a prima facie case for relief under Senate Bill 1437. This is true even if the trial evidence would have been sufficient to support the findings under Banks and Clark .” ( People v. Strong, supra , 13 Cal.5 th at p. 710.) He re, the trial court concluded that the6

jury’s pre

- Banks and Clark findings, which defendant had never set aside through habeas, precluded defendant from making a prima facie showing. The trial court’s conclusion
does not survive Strong

. 4

De fendant’s resentencing petition was facially sufficient and alleged the essential
facts necessa ry for relief under section 1172.6 if proven. (§ 1172.6, subds. (a)

- (c); People v. Lewis, supra , 11 Cal.5th at pp. 970

- 972.) Nothing in the record demonstr ates defendant is ineligible for relief as a matter of law, so we must reverse and 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, subd. (d).) We express no o pinion on the ultimate resolution of the petition.

4 The trial court relied, in part, on our conclusion in defendant’s direct appeal that there was substantial evidence supporting the jury’s special circumstance finding. As that opinio n was filed before Banks , Clark , and Strong , its findings are no long er 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 clar ified by a decision intervening between the first and second appellate determinations ”].)7 

### D ISPOSITION The trial court’s order denying defendant’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, the court shall hold an evidentiary hearing on the petition.

HULL , Acting P. J. We concur:

, RENNER, J.

KRAUSE , J