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Filed 11/28/22 P. v. Mathis CA4/2 Opinion following transfer from S upreme C ourt

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Becerr a and Rob Banta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland , Assistant Attorney s2

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 117 2

. 6

. 1 The superior court d ismissed the petition on the grounds the felony

- mur der 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 C al. 4th 788 ( Banks ) and People v. Clark (2016) 63 C al. 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 o riginal 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 Ca l.5 th 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.

1 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 renum bered 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.3

Via supplemental briefing, defendant contends, and the People concede , the matter
should be reversed a nd remanded for further proceedings given the Strong decision. We agree and reverse.
I. PROCEDURAL BACKGROUND AND FACTS 2 In the process of robbing a store in June 1993, defendant and a codefendant shot
and killed the clerk. Defendants were in the stor e 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, defendants lef t 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. Defendant s were apprehended in the early morning hours the next day. (

Mathis , supra , E015611.) A jury convicted d efendant 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, th e California Supreme Court decided Banks and Clark , respectively, which discuss when section 190.2 authorizes a special circumstance life

2 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 stat ed in Strong , 13 Cal.5th at p. 718.)4

without parole sentence for a felony murder defendant convicted as an aider and abettor. ( Banks , supra , 61 C al. 4th at p. 794; Clark , supra , 63 C al. 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 m

ust 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 L egislature passed S enate 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 f ollow ed this procedure and petitioned, in propria persona , for resentencing on the grounds he h ad been convicted of first degree murder under a felony

murder theory, but could not be convicted under the new law

. Counsel was appointed to represent him.5

The prosecution moved to dismiss the petition on the grounds the special

circumstance finding dem onstrated , 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 underly ing 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 inte nt 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).)

3 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 ru ling 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 .”].)6

When first confronted with the ques tion, 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 special

circumstance allegation , which predates Banks and Clark , does not render a section 1172.6 petitioner ineligible for reli ef as a matter of law because the finding was made “under outdated legal standards.” ( Strong , supra , 13 C al. 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

r easonable 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 reverse d . 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 dismisse d 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 i ssue an order to show cause to be decided by the superior court in the first instance.7 II. DISPOSITION The order appealed from is reversed , and the matter is remanded for further proceedings.
NOT TO BE PU B LISHED IN OFFICIAL REPORTS

McKINSTER J. We concur:

RAMIREZ P. J.

MENETREZ J.