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Filed 11/28/22 P. v. Mathis CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM HENRY MATHIS III,

Defendant and Appellant.

E074933

(Super.Ct.No. CR50362)

OPINION ON TRANSFER

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. 

(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to 

art. VI, § 6 of the Cal. Const.) Reversed and remanded.

Jean Ballantine and Howard C. Cohen, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra and Rob Banta, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys
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General, Eric A. Swenson, Felicity Senoski, Lynne G. McGinnis and Alan L. Amann, 

Deputy Attorneys General, for Plaintiff and Respondent.

In 1994, defendant and appellant William Henry Mathis III was convicted of first 

degree murder, on a felony-murder theory, with a robbery-murder special-circumstance

finding; in 1996, this court affirmed the judgment. (People v. Mathis (July 30, 1996, 

E015611) [nonpub. opn.] (Mathis).) In 2019, defendant filed a petition to vacate the

murder conviction under Penal Code section 1172.6.

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 The superior court dismissed the 

petition on the grounds the felony-murder special-circumstance finding conclusively 

established that he was not eligible for relief.

On appeal, defendant argued the special-circumstance finding did not render him 

ineligible as a matter of law because it predated the California Supreme Court’s decisions 

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

522 (Clark), which clarified what “major participant” and “reckless indifference to 

human life” mean for purposes of section 190.2, subdivision (d). In our original opinion, 

we disagreed and affirmed. The California Supreme Court subsequently granted review 

of our opinion and deferred action pending its decision in People v. Strong (2022) 

13 Cal.5th 698 (Strong); it has now transferred the matter back to us with directions to 

vacate our original opinion and reconsider defendant’s appeal in light of its decision. 

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 Undesignated statutory references are to the Penal Code.

The petition was filed under former section 1170.95. (Enacted by Stats. 2018, 

ch. 1015, § 4, amended by Stats. 2021, ch. 551, § 2.) While this appeal was pending, 

former section 1170.95 was renumbered as section 1172.6, with no change in text. (Stats. 

2022, ch. 58, § 10.) We will use section 1172.6, somewhat anachronistically, to refer to 

whichever one of the two statutes was in effect at the relevant time.
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Via supplemental briefing, defendant contends, and the People concede, the matter 

should be reversed and remanded for further proceedings given the Strong decision. We 

agree and reverse.

I. PROCEDURAL BACKGROUND AND FACTS2

In the process of robbing a store in June 1993, defendant and a codefendant shot 

and killed the clerk. Defendants were in the store when a customer left around 9:48 p.m. 

The clerk’s friend arrived a little after 10:00 p.m. and heard a “pop.” She saw defendant 

standing behind the counter and the codefendant standing in the doorway to the 

storeroom. As she approached, defendantsleft through the back door. The clerk, who 

was lying on the bathroom floor in the back area of the store, died as the result of three 

gunshot wounds to the head. Defendants were apprehended in the early morning hours 

the next day. (Mathis, supra, E015611.)

A jury convicted defendant of first degree murder (§ 187, subd. (a)) and found 

true, inter alia, the robbery-murder special-circumstance allegation under section 190.2, 

former subdivision (a)(17)(i) (now subd. (a)(17)(A); Stats 1995, ch. 478, § 2). Defendant

was sentenced to life without the possibility of parole. In 1996, we affirmed the

conviction. (Mathis, supra, E015611.)

In 2015 and 2016, the California Supreme Court decided Banks and Clark, 

respectively, which discuss when section 190.2 authorizes a special circumstance life 

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 The underlying facts of defendant’s murder conviction are not relevant to our 

analysis, so we recount them briefly, taking them from Mathis, supra, E015611. (See 

People v. Allison (2020) 55 Cal.App.5th 449, 454, & fn. 3, overruled on other grounds as 

stated in Strong, 13 Cal.5th at p. 718.)
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without parole sentence for a felony murder defendant convicted as an aider and abettor. 

(Banks, supra, 61 Cal.4th at p. 794; Clark, supra, 63 Cal.4th at pp. 609-610.) Those

decisions held that participation in an armed robbery, on its own, is insufficient to support

a finding that the defendant acted with reckless indifference to human life. Instead, the

fact finder must consider “the defendant’s personal role in the crimes leading to the

victim’s death and weigh the defendant’s individual responsibility for the loss of life, not

just his or her vicarious responsibility for the underlying crime.” (Banks, at p. 801.) 

“The defendant must be aware of and willingly involved in the violent manner in which 

the particular offense is committed,” thereby “demonstrating reckless indifference to the

significant risk of death his or her actions create.” (Ibid.) Banks provided a 

nonexhaustive list of factors to consider when determining whether the defendant was a 

major participant in the underlying felony, and Clark provided a similar list for 

determining whether the defendant acted with reckless indifference to human life. 

(Banks, at p. 803; Clark, at pp. 619-623.)

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

Reg. Sess.), which, among other things, amended the definition of felony murder in 

section 189 (Stats. 2018, ch. 1015, § 3) and created a procedure for vacating murder 

convictions predating the amendment that could not be sustained under the new law. On 

January 8, 2019, defendant followed this procedure and petitioned, in propria persona, for

resentencing on the grounds he had been convicted of first degree murder under a felonymurder theory, but could not be convicted under the new law. Counsel was appointed to 

represent him.
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The prosecution moved to dismiss the petition on the grounds the specialcircumstance finding demonstrated, as a matter of law, that the jury found defendant was 

a major participant in the robbery who acted with reckless indifference to human life, and 

as a result, he was categorically ineligible for relief. Defense counsel objected “for the 

record” and submitted. The superior court granted the motion to dismiss the petition for 

the reasons stated by the prosecution.3

II. DISCUSSION

Under section 1172.6, the superior court must vacate a first degree murder 

conviction that was based on a felony-murder theory, unless the petitioner either (1) was 

the actual killer, (2) had the intent to kill and aided and abetted the commission of first

degree murder, or (3) was a major participant in the underlying felony and acted with 

reckless indifference to human life. (§ 1172.6, subd. (d)(3), incorporating § 189, subd. (e).) 

A felony-murder special-circumstance finding, however, requires that the defendant 

either (1) was the actual killer, (2) had the intent to kill and aided and abetted the 

commission of first degree murder, or (3) was a major participant in the underlying 

felony and acted with reckless indifference to human life. (§ 190.2, subds. (a)(17), (b)-

(d).) 

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 We note the February 28, 2020 minute order reads, “Petition denied.” However, 

after the prosecutor made a “motion to dismiss” the petition, the court stated: “The 

motion to dismiss is granted.” The court’s oral ruling prevails over the discrepant minute 

order. (People v. Hartley (2016) 248 Cal.App.4th 620, 637 [“When there is a discrepancy 

between the record of the court’s oral pronouncement of judgment and the clerk’s minute 

order, the oral pronouncement controls.”].)
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When first confronted with the question, this court held that a true finding on a 

felony-murder special-circumstance allegation conclusively established ineligibility for 

relief under section 1172.6. (People v. Jones (Oct. 23, 2020, E072961) [nonpub. opn.] 

review granted and matter trans. with directions Sept. 28, 2022, S265854.) In Strong, the 

California Supreme Court held that a true finding on a robbery-murder specialcircumstance allegation, which predates Banks and Clark, does not render a section 

1172.6 petitioner ineligible for relief as a matter of law because the finding was made 

“under outdated legal standards.” (Strong, supra, 13 Cal.5th at p. 720.) Additionally,

Strong held that a court’s postconviction determination that substantial evidence supports 

the finding under Banks and Clark also does not render the petitioner ineligible as a 

matter of law because the determination “would not involve a determination beyond a 

reasonable doubt that [the current legal standards] were met.” (Strong, at p. 720.)

The People concede that, in light of Strong, the order dismissing defendant’s 

petition for resentencing at the prima facie stage must be reversed. We agree. 

Defendant also argues that we should direct the superior court to issue an order to 

show cause. (See § 1172.6, subd. (c).) Because the superior court dismissed the petition 

based on the felony-murder special-circumstance finding, it has not yet ruled on whether 

the petition otherwise stated a prima facie case. We decline to review a ruling the 

superior court has not made. We leave the question of whether to issue an order to show 

cause to be decided by the superior court in the first instance.
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II. DISPOSITION

The order appealed from is reversed, and the matter is remanded for further 

proceedings.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MENETREZ

J.