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Filed 1/3/23 P. v. Ellis CA3

Opinion following transferfrom 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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 section1 1172.62 based on changes made to the felonymurder rule by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). 

1 Unspecified 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 throughout this 

opinion.
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Defendant argued the trial court erred in relying on the jury’s special circumstance 

finding to deny his petition.

In an unpublished opinion, we affirmed the court’s order denying defendant’s 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 (Strong). 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 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) 

clarified what it means to be a major participant who acts with reckless indifference to 

human life, do not render defendant ineligible 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.

FACTS AND HISTORY OF THE PROCEEDINGS

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).)
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first degree robbery in concert and first degree murder, 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 

first 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 participant 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 23, 2020, the trial court filed a written order denying the petition. The 

trial court provided two reasons, first 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 reckless 

indifference to human life. And, on appeal, the Third District Court 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, the trial court 

found defendant could not challenge the validity of the special circumstance finding 
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under the recent California Supreme Court cases Banks and Clark through a section 

1172.6 petition. But even if defendant could, the trial court cited the facts of defendant’s 

case from our prior opinion and found that the special circumstance would still be valid

even after Banks and Clark. 

DISCUSSION

Defendant originally argued 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 that 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 an 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. 2018, 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 probable 
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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 petition 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 facie 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. Lewis (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 exercise 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.5th at p. 710.) Here, the trial court concluded that the 
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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

Defendant’s resentencing petition was facially sufficient and alleged the essential 

facts necessary 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 demonstrates 

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 opinion 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 

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 clarified 

by a decision intervening between the first and second appellate determinations”].)
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DISPOSITION

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