Filed 3/14/23 P. v. Juarez CA5

Opinion on transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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.

FRANK JUAREZ,

Defendant and Appellant.

F083314

(Super. Ct. No. CF92461258)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. 

Harrell, Judge.

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

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Eric 

Christoffersen and William K. Kim, Deputy Attorneys General, for Plaintiff and

Respondent. 

-ooOoo-

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

INTRODUCTION 

In 1992, appellant Frank Juarez was convicted by jury of first degree murder (Pen. 

Code,

1 § 187) and kidnapping (§ 207, subd. (a)). The jury also found true a special 

circumstance alleging that the murder was committed during the commission of a 

kidnapping (§ 190.2, subd. (a)(17)). Juarez was sentenced to prison for life without the 

possibility of parole. 

Following the passage of Senate Bill No. 1437 (2017-2018), Juarez filed a petition 

for resentencing under former section 1170.95.

2

 The superior court denied Juarez’s

petition without appointing counsel, requesting additional briefing, or issuing an order to 

show cause. On appeal, we affirmed the trial court’s denial of Juarez’s petition based 

upon the jury’s true finding on the special circumstance. Juarez filed a petition for 

review in our Supreme Court. 

Our Supreme Court transferred the matter back to this court with directions to 

vacate our decision and to reconsider the cause in light of People v. Strong (2022) 13 

Cal.5th 698 (Strong). In Strong, our Supreme Court held that a pre-Banks/Clark3felonymurder special circumstance finding does not render a former section 1170.95 petitioner 

ineligible for relief as a matter of law. (Strong, at p. 703.) 

We invited the parties to submit supplemental briefing concerning the effect of 

Strong on Juarez’s case. Juarez contends that Strong compels reversal of the trial court’s 

order. The Attorney General agrees, as do we. 

1 All undefined statutory citations are to the Penal Code unless otherwise stated. 

2 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no 

significant change in text (Stats. 2022, ch. 58, § 10). Juarez filed his petition prior to this 

renumbering, and he therefore referred to the statute as section 1170.95 in his petition.

3 People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63 Cal.4th 

522 (Clark).
3.

In conformity with our Supreme Court’s directive, we order our prior decision 

vacated and for the reasons stated herein, we reverse the trial court’s order denying 

Juarez’s petition for resentencing. On remand, following the filing of an amended 

petition by Juarez within 60 days of remittitur, the trial court is directed to appoint 

counsel to Juarez, to issue an order to show cause, and to conduct further proceedings 

consistent with section 1172.6. 

PROCEDURAL HISTORY

In 1992, a jury convicted Juarez of first degree murder (§§ 187, 189) and 

kidnapping (§ 207, subd. (a)). The jury also found true a special circumstance alleging

that the murder was committed during the commission of a kidnapping (§ 190.2, subd. 

(a)(17)). Juarez was sentenced to prison for life without the possibility of parole for 

murder, and a five-year stayed determinate term for kidnapping. 

On September 22, 1994, this court affirmed Juarez’s conviction on direct appeal. 

(People v. Juarez, Sept. 22, 1994, F019469 [nonpub. opn.].) 

On February 22, 2021, Juarez filed a petition for resentencing under former 

section 1170.95. 

On April 20, 2021, the Fresno County District Attorney’s Office filed an 

opposition to Juarez’s petition. 

On August 2, 2021, the superior court denied Juarez’s petition for resentencing 

with prejudice. 

On September 2, 2021, this court affirmed the superior court’s denial of Juarez’s 

petition for resentencing. (People v. Juarez, Sept. 2, 2021, F083314 [nonpub. opn.].)

On December 21, 2022, our Supreme Court transferred Juarez’s case back to this 

court for reconsideration in light of Strong. 
4.

STATEMENT OF FACTS

The Underlying Offense4

Following an altercation at a bar the previous night, Juarez struck Timothy 

Sweeney’s face with his fist. Juarez and Ronald Hajnal then placed Sweeney, who was 

semi-conscious, in the back of Hajnal’s van. They drove drove Sweeney to an isolated 

area, pulled him out of the vehicle, and beat him. Juarez used a metal jack handle during 

the attack, and one of the men used a knife. After the attack, Sweeney’s body was 

dragged into an orange grove. 

Six days later, Sweeney’s body was discovered. The word “puto” was carved onto 

Sweeney’s upper shoulder blade. 

At trial, the forensic pathologist testified about his findings from the autopsy on 

Sweeney’s body. The pathologist concluded that no single injury had caused Sweeney’s 

death. Rather, each injury had been a contributing factor. 

The Trial Court’s Ruling on Juarez’s Petition 

On August 2, 2021, the trial court denied Juarez’s petition with prejudice, 

explaining:

“Petitioner, Frank Juarez failed to make a prima facie showing that he falls 

within the provisions of Penal Code section 1170.95. The condition set out 

at Penal Code [section] 1170.95[, subd.] (a)(3) does not apply. Petitioner 

was found guilty of first degree murder and kidnapping and specifically 

found that the murder occurred during the commission of a kidnapping. 

The appellate court found that an examination of the evidence in the light 

most favorable to the judgment reveals substantial evidence to support the 

felony-murder special circumstances finding. See People v. Juarez 

(September 22, 1994, F019469, page 34) (nonpub. opinion). The record, 

including the appellate opinion in this case, shows that the petitioner was 

4 Our prior opinion affirming Juarez’s judgment of conviction was not made part of 

the record on appeal. The following statement of facts were therefore taken from the 

probation officer’s report. We recite these facts for the limited purpose of providing 

context to Juarez’s criminal conviction. 
5.

likely the actual killer, and at a minimum was a major participant in the 

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

DISCUSSION 

Juarez contends, and the Attorney General agrees, that our Supreme Court’s 

decision in Strong compels reversal of the trial court’s order. We accept the parties’ 

concession. The jury’s special circumstance finding was made in 1992, well before our 

Supreme Court’s decisions in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 

522. Following Strong, the jury’s special circumstance finding does not render Juarez 

ineligible for resentencing relief as a matter of law. Further, although Juarez may be one 

of the actual killers, the record does not conclusively show as much without 

“ ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” 

(People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).) We therefore conclude that the 

trial court erred in denying Juarez’s petition for resentencing without appointing counsel, 

issuing an order to show cause, or holding an evidentiary hearing. 

I. Senate Bill No. 1437

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “to amend 

the felony murder rule and the natural and probable consequences doctrine ... 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 No. 1437 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, 

supra, 10 Cal.5th at pp. 842-843.) Second, to amend the felony-murder rule, the bill 

added section 189, subdivision (e), which provides:
6.

“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.” (§ 189, subd. (e); accord, Gentile, supra, 10 

Cal.5th at p. 842.)

Finally, the bill added former section 1170.95 to provide a procedure for those 

convicted of a qualifying offense “to seek relief under the two ameliorative provisions 

above.” (Gentile, supra, 10 Cal.5th at p. 843.) This procedure is available to persons 

convicted of “felony murder or murder under a 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, attempted murder under the natural and probable 

consequences doctrine, or manslaughter.” (§ 1172.6, subd. (a).)

“Section 1170.95 lays out a process” for a person convicted of one of the 

aforementioned offenses “to seek vacatur of his or her 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, 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[; and]

“(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.” 

(§ 1172.6, subd. (a)(1)-(3); accord, Lewis, supra, 11 Cal.5th at pp. 959-960.)
7.

Additionally, the petition shall state “[w]hether the petitioner requests the 

appointment of counsel.” (§ 1172.6, subd. (b)(1)(C).)

If a petition fails to contain the required information and the information cannot be 

“readily ascertained” by the court, the petition may be denied without prejudice to the 

filing of another petition. (§ 1172.6, subd. (b)(2).) Otherwise, counsel must be 

appointed, if requested. (§ 1172.6, subd. (b)(3).) The prosecutor must file a response and 

the petitioner may file a reply. The trial court must then hold a hearing to determine if 

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

(§ 1172.6, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making 

this determination, the trial court may rely on the record of conviction. (Lewis, at pp. 

970-971 [“[t]he record of conviction will necessarily inform the trial court’s prima facie 

inquiry under [former] section 1170.95, allowing the court to distinguish petitions with 

potential merit from those that are clearly meritless”]) However, “the ‘prima facie bar 

was intentionally and correctly set very low.’ ” (Lewis, at p. 972.) The trial court must 

accept the petitioner’s allegations as true and “should not engage in ‘factfinding 

involving the weighing of evidence or the exercise of discretion.’ ” (Ibid.) 

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[, attempted murder, or manslaughter] conviction and to resentence the 

petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at p. 853; accord, 

§ 1172.6, subds. (c), (d)(1).) At the hearing, the prosecution must “prove, beyond a 

reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1172.6, subd. 

(d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet 

their respective burdens. (Ibid.)

To demonstrate prejudice from the denial of a petition for resentencing before the 

issuance of an order to show cause or the appointment of counsel, the petitioner must 
8.

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. Senate Bill No. 775

On October 5, 2021, the Governor signed Senate Bill No. 775 (2021-2022 Reg. 

Sess.) (Senate Bill No. 775) into law, and its amendments to section 1170.95 became 

effective on January 1, 2022. (Stats. 2021, ch. 551, § 2.) Senate Bill No. 775 

amended former section 1170.95, subdivision (d)(3) to provide the following, in relevant 

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

appellate opinion. (Former § 1170.95, subd. (d)(3).)

Prior to the enactment of Senate Bill No. 775, the trial court could consider the 

factual summary recited in an appellate opinion at an evidentiary hearing under section 

1170.95, subdivision (d)(3), because the factual summary was admissible as reliable 

hearsay. (See People v. Williams (2020) 57 Cal.App.5th 652, 662 [finding that the

superior court was permitted to consider hearsay at evidentiary hearings under former

section 1170.95, subdivision (d)(3) within a prior appellate opinion, “ ‘provided there is a

substantial basis for believing the hearsay information is reliable’ ”]; see also People v. 

Brimmer (2014) 230 Cal.App.4th 782, 800 [the record of conviction may include the 

underlying facts as summarized in an appellate opinion].) 

Following the enactment of Senate Bill No. 775, however, the “Legislature limited 

use of prior appellate opinions [in hearings under section 1170.95, subdivision (d)], 

allowing trial judges to ‘consider the procedural history of the case recited.’ ” (People v. 

Clements (2022) 75 Cal.App.5th 276, 292.) Through the passage of Senate Bill No. 775, 

“the Legislature has decided trial judges should not rely on the factual summaries 

contained in prior appellate decisions when a section 1170.95 petition reaches the stage 

of a full-fledged evidentiary hearing.” (Ibid.; accord, People v. Cooper (2022) 77
9.

Cal.App.5th 393, 400, fn. 9 [“Senate Bill 775 prevents a trial court from relying on facts 

recited in an appellate opinion to rule on a petition under section 1170.95”].) “If such 

evidence may not be considered at an evidentiary hearing to determine a petitioner’s 

ultimate eligibility for resentencing, ... such evidence ...[cannot] establish, as a matter of 

law, a petitioner’s ineligibility for resentencing at the prima facie stage.” (People v. 

Flores (2022) 76 Cal.App.5th 974, 988.) 

II. Analysis

We previously affirmed the trial court’s denial of Juarez’s petition finding the 

petition was facially defective and based upon the jury’s true finding on the special 

circumstance allegation, which we concluded, rendered Juarez ineligible for relief as a 

matter of law. As discussed further below, we conclude that upon the filing of an 

amended petition for resentencing, Juarez is entitled to the appointment of counsel and 

further proceedings consistent with section 1172.6.

1. Juarez’s Petition Must be Amended

In our original opinion affirming the trial court’s order, we observed that Juarez’s 

petition failed to explicitly assert that he was not a major participant in the commission of 

the underlying offense that had acted with reckless indifference to human life.5 Nor does 

the petition allege that the victim of the murder was not a peace officer in the 

performance of his or her duties. Consequently, we concluded that Juarez’s petition was 

not facially sufficient. 

5 The petition submitted by Juarez consists of typewritten boxes wherein the 

petitioner can check boxes applicable to the circumstances of their case. However, the 

petition fails to include a statement alleging that he was not a major participant in the 

commission of an underlying felony, or that he did not act with reckless indifference to 

human life. The pre-typed form is therefore defective. 
10.

Following remand from our Supreme Court, we decline to affirm the trial court’s 

order of denial solely upon this basis. Doing so would prohibit this court from reaching 

the merits of Juarez’s claims on appeal, potentially generating a successive appeal.6 In 

the interest of judicial economy, we will afford Juarez the opportunity to file an amended 

petition for resentencing in the trial court below. Additional proceedings, including the 

appointment of counsel and the issuance of an order to show cause, may follow the filing 

of the amended petition, assuming the petition contains all necessary averments set forth 

under section 1172.6. If Juarez declines to file an amended petition for resentencing 

within 60 days after remittitur issues, the trial court’s order of denial will be affirmed 

without prejudice to Juarez filing a new petition. 

2. The Jury’s True Finding on the Special Circumstance

In addition to finding Juarez’s petition defective, we previously affirmed the trial 

court’s order denying his petition based upon the jury’s true finding on the special 

circumstance allegation. We previously concluded that this finding rendered Juarez 

ineligible for resentencing relief as a matter of law. That conclusion is no longer viable 

in light of our Supreme Court’s decision in Strong. 

In Strong, our Supreme Court held that where a petitioner’s case “was tried before 

both Banks and Clark, the special circumstance findings do not preclude him from 

making out a prima facie case for resentencing under section 1172.6.” (Strong, supra, 13 

Cal.5th at p. 721.) Our Supreme Court reasoned that section 1172.6 requires the 

petitioner to make a prima facie showing that he could not be convicted of murder under 

the amended versions of sections 188 and 189, and “[a] pre-Banks and Clark special 

6 The trial court’s denial of Juarez’s petition occurred without appointing counsel, 

issuing an order to show cause, or holding an evidentiary hearing. As discussed herein, 

the enactment of new legislation now shows that the trial court’s order of denial is 

problematic in several respects. To avoid a potential repetition of the issues we have 

identified, we decline to affirm the trial court’s order based upon the fact that Juarez’s 

petition is technically defective. 
11.

circumstance finding does not negate that showing because the finding alone does not 

establish that the petitioner is in a class of defendants who would still be viewed as liable 

for murder under the current understanding of the major participant and reckless 

indifference requirements.” (Strong, at pp. 717-718.) “This is true even if the trial 

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

at p. 710; see People v. Montes (2021) 71 Cal.App.5th 1001, 1008 [trial court may not 

deny a section 1172.6 petition at the prima facie stage based on its own determination 

defendant was major participant in felony and acted with reckless disregard for human 

life].) Thus, “[n]either the jury’s pre-Banks and Clark findings nor a court’s later 

sufficiency of the evidence review amounts to the determination section 1172.6 requires, 

and neither set of findings supplies a basis to reject an otherwise adequate prima facie 

showing and deny issuance of an order to show cause.” (Strong, at p. 720.)

Here, the jury’s true finding on the robbery-murder special circumstance occurred 

in 1992, more than two decades before our Supreme Court’s decisions in Banks and 

Clark. Strong makes clear that the jury’s finding on the special circumstance does not 

preclude Juarez from stating a prima facie case for relief. (Strong, supra, 13 Cal.5th at p. 

721.) The trial court’s order denying Juarez’s petition on this basis was therefore 

improper. 

3. The Trial Court’s Conclusion that Juarez is Likely the Actual Killer

The superior court’s order of denial stated that “The record, including the 

appellate opinion in this case, shows that the petitioner was likely the actual killer.” The 

Attorney General does not suggest that the trial court’s order denying Juarez’s petition 

may be affirmed on this basis, nor would such a claim be tenable in light of new 

clarifying legislation. 

This court’s statement of facts recited in our prior appellate opinion supports the 

conclusion that Juarez and Hajnal may have acted as the actual killers based upon the fact 
12.

that two different weapons were used during the course of the attack on Sweeney, and in 

light of the pathologist’s testimony that each injury had been a contributing factor to 

Sweeney’s death.7 Following the passage of Senate Bill No. 775, however, we are 

foreclosed from consideration of facts recited in our prior appellate opinion at a section 

1172.6 evidentiary hearing (see People v. Clements, supra, 75 Cal.App.5th at p. 292), and 

at the prima facie stage of proceedings (see also People v. Flores, supra, 76 Cal.App.5th 

at p. 988.) Moreover, the existing record does not permit us to conclude that Juarez could 

be convicted of murder under an actual killer theory without “ ‘factfinding involving the 

weighing of evidence or the exercise of discretion.’ ” (Lewis, supra, 11 Cal.5th at p. 

972.) The trial court therefore erred in denying Juarez’s petition on this basis. 

DISPOSITION 

This court’s prior opinion is vacated. The trial court’s August 2, 2021 order 

denying Juarez’s petition for resentencing under former section 1170.95 is reversed. On 

remand, following the filing of an amended petition by Juarez within 60 days of the 

issuance of remittitur, the trial court is directed to appoint counsel to Juarez, to issue an 

order to show cause, and to conduct further proceedings consistent with section 1172.6. 

If Juarez declines to file an amended petition for resentencing within 60 days after 

remittitur issues, the trial court’s order of denial will be affirmed without prejudice to 

Juarez filing a new petition. 

7 We acknowledge, however, that the jury found not true a section 12022, 

subdivision (b)(1) enhancement for the personal use of a deadly or dangerous weapon.