Filed 5/17/22 P. v. Estrada CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ERICA MICHELLE ESTRADA,

Defendant and Appellant.

 B312352

 (Los Angeles County

 Super. Ct. No. YA076269)

APPEAL from an order of the Superior Court of 

Los Angeles County, Scott T. Millington, Judge. Reversed 

and remanded with directions.

Law Office of Stein and Markus, Andrew M. Stein and

Joseph A. Markus; Brentford Ferreira Attorney at Law and 

Brentford Ferreira, for Defendant and Appellant.
2

Rob Bonta, Acting Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Senior Assistant Attorney General, Noah P. Hill and 

Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff 

and Respondent.

__________________________________________

INTRODUCTION

Appellant Erica Michelle Estrada appeals from the 

trial court’s denial of her petition under Penal Code section 

1170.95 to vacate her murder conviction.1 In 2013, a jury 

convicted appellant of felony murder and found true a 

robbery-murder allegation under section 190.2 (the special 

circumstance statute). During the pendency of appellant’s 

direct appeal, our Supreme Court clarified the meaning of 

the special circumstance statute in People v. Banks (2015) 61 

Cal.4th 788 (Banks). We affirmed the judgment, holding, 

inter alia, that the special circumstance finding was 

supported by substantial evidence under Banks. (People v. 

Gonzalez (2016) 246 Cal.App.4th 1358 (Gonzalez I).) Our 

Supreme Court granted review on an issue immaterial to 

this appeal, and affirmed. (People v. Gonzalez (2018) 5 

Cal.5th 186 (Gonzalez II).) 

After the enactment of Senate Bill No. 1437 (2017-2018 

Reg. Sess.) (SB 1437), which narrowed the felony murder 

rule by incorporating the special circumstance statute’s 

1 Undesignated statutory references are to the Penal Code.
3

requirement that the defendant at least have been a major 

participant in the underlying felony and have acted with 

reckless indifference to human life, appellant filed a petition 

for resentencing under section 1170.95, alleging she was not 

guilty of murder in the wake of SB 1437. Without issuing an 

order to show cause, the trial court denied the petition, 

reasoning that (1) the jury’s robbery-murder special 

circumstance finding precluded relief as a matter of law, by 

establishing that appellant at least had been a major 

participant in the robbery and had acted with reckless 

indifference to human life; and (2) although some cases had 

held that a pre-Banks special circumstance finding alone 

could not preclude relief under Section 1170.95, those cases 

were inapposite in light of our holding in Gonzalez I that the 

special circumstance finding was supported by substantial 

evidence under Banks.

On appeal, appellant contends the court erred in 

denying her petition without issuing an order to show cause. 

The Attorney General disagrees, arguing the special 

circumstance finding precluded relief as a matter of law, 

either alone or in conjunction with our substantial-evidence 

holding in Gonzalez I. In the alternative, the Attorney 

General argues we should deem any error harmless by 

making a new finding of substantial evidence under Banks

on this appeal. 

We conclude the court erred, as neither the jury’s preBanks special circumstance finding nor our opinion in 

Gonzalez I refuted, as a matter of law, appellant’s 
4

allegations that she was not a major participant in the 

robbery and did not act with reckless indifference to human 

life within the meaning of the special circumstance statute 

as clarified in Banks. We further conclude the error was not 

harmless regardless of whether the trial record contains 

substantial evidence under Banks, as a finding of substantial 

evidence of appellant’s guilt under a still-valid theory of 

murder is insufficient to render her ineligible for 

resentencing under section 1170.95. Accordingly, we reverse 

the order denying appellant’s petition, and remand the 

matter to the trial court with directions to issue an order to 

show cause and proceed in accordance with section 1170.95.

BACKGROUND

In 2009, Victor Rosales died from a single gunshot 

wound to the chest. (Gonzalez I, supra, 246 Cal.App.4th at 

1367-1368.) The People charged appellant and two 

codefendants -- Jorge Gonzalez and Alfonso Garcia -- with 

Rosales’s murder. (Id. at 1363.) The People alleged that a 

principal was armed with a firearm during the murder, and 

that the murder was committed during the commission of a 

robbery. (Ibid.) With respect to codefendant Gonzalez alone, 

the People brought an additional charge of shooting at an 

occupied motor vehicle, and an additional allegation of 

causing death by personally and intentionally discharging a 

firearm. (Ibid.) 
5

A. Trial Evidence

The prosecution’s primary evidence concerning the 

shooting of Rosales consisted of pretrial statements made 

shortly after the shooting by his friend Alejandro Ruiz, who 

did not testify. (Gonzalez I, supra, 246 Cal.App.4th at 1367, 

1371.) Rosales’s mother and two sisters testified that Ruiz 

made statements indicating appellant (Rosales’s girlfriend) 

was responsible for the shooting in some unspecified 

manner. (Id. at 1366-1367.) More specific statements by 

Ruiz were introduced through the testimony of Inglewood 

Police Officer Fernando Vasquez, who interviewed Ruiz upon 

responding to a 911 call about the shooting. (Id. at 1367.) 

Ruiz told the officer that about 20 minutes before the 911 

call, he drove to Rosales’s house to pick up Rosales, who said 

appellant had asked to meet at a nearby laundromat to get 

lunch. (Id. at 1367.) Ruiz drove Rosales to the laundromat. 

(Ibid.) “[Ruiz] recognized [appellant], accompanied by two 

male Hispanics, walking out from behind two palm trees. 

[Appellant] pointed at Rosales, and one of the males walked 

up to the passenger side door, produced a small handgun, 

and fired a single shot at Rosales.” (Ibid.) The shooter tried 

to pull Ruiz out of the car, but Ruiz quickly drove away, back 

to Rosales’s house. (Ibid.) Officer Vasquez testified that on 

the evening of the shooting, he arrested appellant and 

Gonzalez outside appellant’s house. (Ibid.) 

The prosecution’s primary evidence concerning the 

defendants’ intent to rob Rosales consisted of the testimony 

of potential accomplice Anthony Stephen Kalac, who 
6

testified after invoking his privilege against selfincrimination and being granted use immunity. (Gonzalez I, 

supra, 246 Cal.App.4th at 1364, 1374.) Kalac testified that 

on the day of the shooting, he joined appellant, codefendant 

Gonzalez, codefendant Garcia, and Garcia’s girlfriend in a 

room at the Crystal Inn (across the street from the 

laundromat where the shooting took place). (Id. at 1364.) 

Appellant, Garcia, and Gonzalez discussed where they could 

obtain drugs. (Ibid.) During this discussion, appellant told 

Garcia and Gonzalez that she knew someone (Rosales) they 

could “‘come up on,’” which Kalac understood to mean “‘rob.’” 

(Ibid.) Appellant said Rosales was a drug dealer who had 

been “‘physical’” (violent) with her. (Ibid.) “On crossexamination, Kalac admitted that part of the conversation 

among Gonzalez, [appellant], and Garcia about where to 

obtain drugs had taken place in Spanish, a language he does 

not understand. Kalac testified that the only part of 

defendants’ conversation that was in English was about 

‘[w]here they were meeting basically and how long.’” 

(Gonzalez II, supra, 5 Cal.5th at 210 (dis. opn. of Liu, J.).) 

Kalac also admitted he was high on heroin during the 

conversation. (Id. at 193 (maj. opn. of Cuéllar, J.); id. at 211 

(dis. opn. of Liu, J.).)

Kalac further testified that appellant called Rosales, 

asked him to sell her drugs, and told him to meet at the 

laundromat. (Gonzalez I, supra, 246 Cal.App.4th at 1364.) 

Garcia said he would act as lookout, and left the Crystal Inn 

with Gonzalez. (Id. at 1365.) Appellant, assisted by Garcia’s 
7

girlfriend and Kalac, relocated to a nearby hotel. (Ibid.) 

Appellant left Kalac alone in the new hotel. (Ibid.) Kalac 

started walking home, and encountered Garcia and 

Gonzalez, who told him “‘shit went bad.’” (Ibid.) Kalac 

testified that he never saw a gun. (Ibid.) However, Kalac’s 

ex-girlfriend told police that Garcia gave Kalac the gun that 

had been used in the shooting. (Id. at 1365-1366.)

Neither appellant nor Garcia testified. (Gonzalez I, 

supra, 246 Cal.App.4th at 1371.) Gonzalez testified he was 

with appellant, Garcia, and Kalac at the Crystal Inn on the 

day of the shooting, but they did not plan to rob Rosales;

instead, at Gonzalez’s request, appellant arranged to buy

drugs from Rosales. (Id. at 1369-1370.) Because the hotel 

manager had told them to leave, appellant relocated to a 

new hotel, while Gonzalez and Garcia went to the 

laundromat to meet Rosales. (Id. at 1370.) Gonzalez did not 

have a gun, and he had not seen any guns in the hotel room. 

(Ibid.) Outside the laundromat, Gonzalez saw Rosales 

sitting in a car, looking at him. (Ibid.) Gonzalez walked 

over to Rosales and greeted him twice, but Rosales did not 

respond, prompting Gonzalez to ask whether he should get 

appellant. (Ibid.) Rosales suddenly threatened Gonzalez 

with a handgun, which Gonzalez grabbed in self-defense; in 

the ensuing struggle for possession, the gun accidentally 

discharged. (Ibid.) Gonzalez ran away, found Garcia, and 

came across Kalac, to whom he gave the gun. (Ibid.) He 

joined appellant at a new hotel and accompanied her to her 
8

house, where she introduced him to her son before the police 

arrived and arrested them. (Id. at 1370-1371.)

B. Judgment and Appeal

“Aside from felony murder, the jury was not instructed 

on any other theory of murder.” (Gonzalez I, supra, 246 

Cal.App.4th at 1379.) The jury convicted all defendants of 

felony murder, and found true the robbery-murder special 

circumstance allegation. (Id. at 1363.) However, the jury 

found all the firearm allegations not true, and acquitted 

Gonzalez of shooting at an occupied vehicle. (Ibid.) Each 

defendant was sentenced to life imprisonment without the 

possibility of parole. (Ibid.)

On her direct appeal from the judgment, appellant 

contended, inter alia, that the robbery-murder special 

circumstance finding was not supported by substantial 

evidence. (Gonzalez I, supra, 246 Cal.App.4th at 1362.) 

During the pendency of her appeal, our Supreme Court 

issued its opinion in Banks, and we ordered supplemental 

briefing concerning it.2 (Gonzalez I, at 1382, fn. 6.) Drawing 

guidance from Banks, and considering the record in the light 

most favorable to the judgment, we held the trial record 

contained substantial evidence that appellant was a major 

2

As noted, Banks clarified the meaning of the special 

circumstance statute. After we issued our opinion in Gonzalez I, 

our Supreme Court further clarified the statute in People v. Clark

(2016) 63 Cal.4th 522 (Clark).
9

participant in the robbery and acted with reckless 

indifference to human life. (Gonzalez I, at 1382, 1385.) 

Implicitly presuming the jury believed Kalac’s testimony 

about appellant’s conversations in the Crystal Inn, we 

stated: “[Appellant] was identified as the person who first 

proposed robbing Rosales. When she did so, she informed 

Gonzalez and Garcia that Rosales was a drug dealer who 

had been physically violent in the past. Thus, unlike in 

Banks, there was a substantial probability the robbery 

would result in resistance and the need to meet that 

resistance with deadly force. [Appellant] then set up the 

robbery by calling Rosales and asking him to meet her at the 

laundromat. Her act of luring Rosales to the laundromat 

was ‘critical to the robbery’s success.’” (Gonzalez I, at 1385, 

quoting People v. Lopez (2011) 198 Cal.App.4th 1106, 1117 

(Lopez).)3 We further presumed the jury believed Ruiz’s 

3 Deeming Lopez instructive, we summarized its relevant 

holding as follows: “appellant Brousseau, a prostitute, along with 

several codefendants, planned to rob (‘com[e] up on’) some of her 

prospective customers. [Citation.] During the encounter, the 

victim was shot and killed by codefendant Lopez. Brousseau . . . 

argued there was insufficient evidence to prove she acted with 

reckless indifference to human life. The appellate court 

disagreed. It found that ‘Brousseau’s act of luring the victim into 

the secluded alley was critical to the robbery’s success. After 

hearing what she knew was a gunshot, she failed to help the 

victim or call 911.’ Instead, she spent the night with her 

codefendants and had sex with Lopez. The appellate court found 

Brousseau’s actions reflected an ‘utter indifference to the victim’s 

life.’ [Citation.]” (Gonzalez I, supra, 246 Cal.App.4th at 1384.) 

(Fn. is continued on the next page.)
10

account of the shooting, as relayed at trial by Officer 

Vasquez: “[Appellant] also was identified as being at the 

scene, and pointing Rosales out to the shooter.” (Gonzalez I, 

at 1385.) We noted we were permitted to “consider Ruiz’s 

account of Gonzalez’s use of a gun” in assessing the 

sufficiency of the evidence supporting the robbery-murder 

special circumstance allegation, notwithstanding the jury’s 

not-true finding on the separate allegation that a principal 

was armed with a gun. (Id. at 1385, fn. 10.) Finally, we 

considered the evidence of appellant’s actions after the 

shooting: “After a shot was fired, she neither called 911 to 

assist the victim, nor called the police to report the shooting. 

Rather, like Brousseau in Lopez, [appellant] spent the 

afternoon with the shooter. She took Gonzalez to her home 

to introduce him to her son, and was arrested with him later 

that evening.” (Gonzalez I, at 1385; but see Gonzalez II, 

supra, 5 Cal.5th at 195 [“because Ruiz immediately drove 

Rosales away to an unknown location [after Rosales was 

shot], this is not a case where defendants’ actions after the 

shooting [alone] constituted actions that they knew carried a 

grave risk of death, such as if they abandoned the dying 

victim at the site of the crime without calling for medical 

assistance”].) We concluded, “On this record, there was 

We noted that although Banks had disapproved Lopez in part, 

Lopez remained good law to the extent it relied on evidence 

beyond Brousseau’s knowledge that Lopez was armed. (Gonzalez 

I, at 1384, fn. 8.)
11

sufficient evidence for the jury to find that [appellant] was a 

major participant and acted with reckless indifference to 

human life.” (Gonzalez I, at 1385.)

Our Supreme Court granted review on a different issue 

addressed in our opinion, viz., whether the special 

circumstance finding rendered harmless the trial court’s 

failure to instruct the jury on malice murder (along with 

related defenses and lesser included offenses), as opposed to 

felony murder. (Gonzalez II, supra, 5 Cal.5th at 195.) The 

court concluded the special circumstance finding rendered 

the instructional omission harmless, because it necessarily 

reflected the jury’s independent determination of the 

defendants’ guilt of felony murder, negating any reasonable 

probability that the jury returned convictions merely 

because the instructions presented an all-or-nothing choice 

between felony murder and acquittal.4 (Id. at 191-192, 200-

201, 209.)

4

The Supreme Court recognized some ambiguity concerning 

the factual basis of the jury’s finding of reckless indifference to 

human life, and did not address whether that finding satisfied 

the standards of Banks and Clark. (See Gonzalez II, supra, 5 

Cal.5th at 208 [“What the [reckless indifference to human life] 

finding demonstrates -- irrespective of the precise factual 

underpinnings directly supporting the jury’s special circumstance 

determination -- is that the jury could have found the special 

circumstance false [had it convicted defendants of felony murder 

merely because it was given an all-or-nothing choice between 

felony murder and acquittal], without risking apparent logical 

inconsistency with the felony-murder conviction” (italics added)]; 

(Fn. is continued on the next page.)
12

C. Section 1170.95 Petition

In January 2021, appellant filed, through counsel, a 

petition to vacate her murder conviction under section 

1170.95, alleging she could not be convicted of felony murder 

after SB 1437’s changes to the law because: (1) she was not 

the actual killer; (2) she did not act with the intent to kill as 

an aider and abettor; and (3) she was not a major participant 

in the underlying robbery, and she did not act with reckless 

indifference to human life. Relying on People v. Torres 

(2020) 46 Cal.App.5th 1168, review granted June 24, 2020, 

S262011 (Torres) and related cases, appellant argued the 

jury’s pre-Banks special circumstance finding did not refute 

her allegations that she was not a major participant in the 

robbery and did not act with reckless indifference to human 

life. She argued this was true despite our holding in 

Gonzalez I that the special circumstance finding was 

supported by substantial evidence under Banks. In 

opposition, the prosecution argued: (1) contrary to the Torres

id. at 207 [“Even if the jury was not persuaded that Gonzalez was 

armed, a perpetrator need not be armed with a weapon to create 

the force or fear necessary for robbery. . . . [T]he jury could have 

concluded Gonzalez was not armed and still found defendants 

had knowledge of a ‘grave risk of death.’ The jury may have 

believed, for example, that the planned commission of a violent 

crime such as the robbery of a drug dealer who had been 

physically violent towards [appellant] in the past carried a grave 

risk of death”]; cf. id. at 214 (dis. opn. of Liu, J.) [implying 

majority’s unarmed-robbery-of-violent-drug-dealer theory was 

invalid under Banks].)
13

line of cases, the special circumstance finding alone 

precluded relief, as another line of cases had held; and (2) in 

any event, the Torres line of cases was inapposite in light of 

our holding in Gonzalez I that the special circumstance 

finding was supported by substantial evidence under Banks. 

In April 2021, the trial court held a hearing to 

determine whether to issue an order to show cause, at which 

the parties generally repeated the arguments made in their 

briefs. The court denied appellant’s petition, agreeing with 

the prosecution that “the jury’s special circumstance finding 

shows as a matter of law that [appellant] could still be 

convicted of felony murder,” and that the Torres line of cases 

was “distinguish[able]” in light of our substantial-evidence 

holding in Gonzalez I. Appellant timely appealed. 

DISCUSSION

A. Section 1170.95

Section 1170.95 permits a defendant who was 

convicted of felony murder to petition the sentencing court to 

have the conviction vacated and to be resentenced on any 

remaining counts when, inter alia, the petitioner could not 

be convicted of murder after SB 1437’s changes to the law. 

(See § 1170.95, subd. (a)(3).) These changes include the 

amendment of section 189, subdivision (e) to provide that a 

defendant is not guilty of felony murder unless the 

defendant: (1) was the actual killer; (2) acted with the intent 

to kill as an aider and abettor; or (3) was a major participant 

in the underlying felony and acted with reckless indifference 
14

to human life, as described in the special circumstance 

statute. (See § 189, subd. (e); Stats. 2018, ch. 1015, § 3.)

After ascertaining that the petition contains certain 

required information, the court must determine whether the 

petitioner has made a prima facie showing of entitlement to 

relief. (§ 1170.95, subd. (c); People v. Lewis (2021) 11 Cal.5th 

952, 960-968 (Lewis).) “[A]t the prima facie stage, a 

petitioner’s allegations should be accepted as true, and the 

court should not make credibility determinations or engage 

in ‘factfinding involving the weighing of evidence or the 

exercise of discretion.’” (Lewis, at 974, quoting People v. 

Drayton (2020) 47 Cal.App.5th 965, 980 (Drayton).) Because 

the weighing of evidence is typically required in order to 

determine whether a defendant was a major participant in 

an underlying felony and acted with reckless indifference to 

human life, this determination is typically inappropriate at 

the prima facie stage. (See, e.g., People v. Clayton (2021) 66 

Cal.App.5th 145, 154, review denied Sept. 15, 2021; Drayton, 

supra, 47 Cal.App.5th at 982.) The prohibition against 

factfinding at the prima facie stage is subject to a limited 

exception: “‘if the record, including the court’s own 

documents, “contain[s] facts refuting the allegations made in 

the petition,” then “the court is justified in making a 

credibility determination adverse to the petitioner.’”” (Lewis,

supra, 11 Cal.5th at 971, quoting Drayton, at 979.) 

“However, this authority to make [factual] determinations 

without conducting an evidentiary hearing . . . is limited to 

readily ascertainable facts from the record (such as the crime 
15

of conviction) . . . .” (Drayton, at 980.) “[T]he ‘prima facie 

bar was intentionally and correctly set very low.’” (Lewis, at 

972.)

Where the court finds the petitioner has made a prima 

facie showing, it must issue an order to show cause and hold 

an evidentiary hearing on the petitioner’s eligibility for 

relief. (§ 1170.95, subds. (c)-(d).) “At the hearing to 

determine whether the petitioner is entitled to relief, the 

burden of proof shall be on the prosecution to prove, beyond 

a reasonable doubt, that the petitioner is guilty of murder 

. . . under California law as amended by [SB 1437]. . . . The 

prosecutor and the petitioner may also offer new or 

additional evidence to meet their respective burdens.” 

(§ 1170.95, subd. (d)(3).) “The question is whether the 

petitioner committed murder under a still-valid theory, and 

that is a factual question. The Legislature made this clear 

by explicitly holding the People to the beyond a reasonable 

doubt evidentiary standard and by permitting the parties to 

submit new or additional evidence at the hearing on 

eligibility.” (People v. Clements (2022) 75 Cal.App.5th 276, 

294 (Clements).) “A finding that there is substantial 

evidence to support a conviction for murder . . . is 

insufficient to prove, beyond a reasonable doubt, that the 

petitioner is ineligible for resentencing.”5 (§ 1170.95, subd. 

(d)(3).)

5

Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775), 

effective January 1, 2022, amended section 1170.95 by, inter alia, 

(Fn. is continued on the next page.)
16

B. Analysis

We conclude the trial court erred in denying 

appellant’s section 1170.95 petition without issuing an order 

to show cause. Appellant undisputedly was convicted under 

a felony murder theory, and her petition alleged: (1) she was 

not the actual killer; (2) she did not act with the intent to kill 

as an aider and abettor; and (3) she was not a major 

participant in the underlying robbery, and she did not act 

with reckless indifference to human life. If these allegations 

are true, appellant could not be convicted of murder after SB 

1437’s amendments to section 189, subdivision (e), and she is 

entitled to resentencing. (See § 1170.95, subd. (a)(3); Stats. 

2018, ch. 1015, § 3.) The court was required to accept 

appellant’s allegations as true, and to issue an order to show 

cause, unless readily ascertainable facts from the record of 

conviction refuted her allegations as a matter of law. (See 

Drayton, supra, 47 Cal.App.5th at 980; Lewis, supra, 11 

Cal.5th at 974.) Below, we conclude nothing in the record of 

conviction did so.

adding the quoted language regarding the insufficiency of a 

finding of substantial evidence to render a petitioner ineligible for 

relief. (Stats. 2021, ch. 551, § 2.) This amendment was 

consistent with the holdings of most courts that had considered 

the issue of the standard of proof at the evidentiary hearing. 

(See, e.g., Clements, supra, 75 Cal.App.5th at 283, 293 [on 

transfer from Supreme Court for reconsideration in light of SB 

775, court noted SB 775 “reaffirm[ed]” its prior conclusion that 

substantial-evidence standard did not apply at evidentiary 

hearing].)
17

We disagree with the trial court’s conclusion that 

appellant’s allegations were refuted as a matter of law by the 

jury’s pre-Banks felony-murder special circumstance finding. 

This issue, which has divided the Courts of Appeal, is 

pending review in our Supreme Court.6 Mindful of the 

conflicts in the law, we continue to follow the Torres line of 

cases. Under those cases, the jury’s pre-Banks special 

circumstance finding did not preclude appellant’s eligibility 

for relief under section 1170.95 as a matter of law, because 

“‘the factual issues that the jury was asked to resolve [in a 

trial that occurred before Banks and Clark were decided] are 

not the same factual issues our Supreme Court has since 

identified as controlling.’” (People v. Mejorado (2022) 73 

Cal.App.5th 562, 571, review granted March 23, 2022, 

S273159, quoting People v. Smith (2020) 49 Cal.App.5th 85, 

93, review granted July 22, 2020, S262835; see also Torres, 

supra, 46 Cal.App.5th at 1179, rev.gr.)

We further conclude that our opinion in Gonzalez I

does not render the Torres line of cases inapposite. In 

applying the substantial evidence standard of review in 

Gonzalez I, we determined only that the jury reasonably 

6 Our Supreme Court has granted review in People v. 

Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review granted 

March 10, 2021, S266606, to resolve the issue whether a felonymurder special circumstance finding made before Banks and 

Clark precludes a defendant from making a prima facie showing 

of eligibility for relief under Penal Code section 1170.95. (Strong, 

S266606, Supreme Court Mins., Mar. 10, 2021.)
18

could have found that appellant engaged in conduct 

proscribed by the special circumstance statute as interpreted 

in Banks -- not that the jury necessarily did so. (See People 

v. Morales (2020) 10 Cal.5th 76, 88 [court applying 

substantial evidence standard “‘“‘presumes in support of the 

judgment the existence of every fact the trier could

reasonably deduce from the evidence’”’” (italics added)]; 

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1008 [“In 

assessing how the evidence reasonably could have been 

evaluated by the trier of fact, an appellate court . . . must 

indulge reasonable inferences that the trier of fact might 

have drawn from the evidence” (italics added)].) Thus, our 

substantial-evidence analysis did not resolve the ambiguity 

central to the reasoning of the Torres line of cases; it 

remains unclear whether the jury decided “‘the same factual 

issues our Supreme Court has since identified as 

controlling.’” (People v. Mejorado, supra, 73 Cal.App.5th at 

571, rev.gr.)

Because neither the jury’s pre-Banks special 

circumstance finding nor anything else in the record of 

conviction refuted appellant’s allegations as a matter of law, 

we conclude the trial court erred in denying her petition at 

the prima facie stage. Contrary to the Attorney General’s 

contention, we cannot deem this error harmless by making a 

new finding of substantial evidence under Banks and Clark. 

As subdivision (d)(3) of section 1170.95 makes clear, a

finding of substantial evidence of guilt under a still-valid 

theory is insufficient to render a petitioner ineligible for 
19

resentencing. (§ 1170.95, subd. (d)(3); see also, e.g., 

Clements, supra, 75 Cal.App.5th at 283, 293.) Regardless of 

whether the trial record contains substantial evidence under 

Banks and Clark, appellant is entitled to an evidentiary 

hearing, at which the parties may offer new or additional 

evidence, and at which the trial court will determine

whether the prosecution proved beyond a reasonable doubt 

that appellant was a major participant in the robbery and 

acted with reckless indifference to human life, or was 

otherwise guilty of murder under current law. (See 

§ 1170.95, subd. (d)(3).)

In his respondent’s brief, filed after the effective date of 

SB 775, the Attorney General cites subdivision (d)(3), which 

now clarifies that a finding of substantial evidence at the 

evidentiary hearing is insufficient to render a petitioner 

ineligible for relief. (See Stats. 2021, ch. 551, § 2.) 

Nevertheless, in urging us to deem appellant ineligible for 

relief on the basis of a new finding of substantial evidence,

the Attorney General fails to address this amendment or the 

prior caselaw consistent with it. (See, e.g., Clements, supra, 

75 Cal.App.5th at 283, 293.) Instead, he primarily relies on 

three cases that were decided before SB 775 was enacted: 

People v. Price (2021) 71 Cal.App.5th 1128 (Price), review 

granted Feb. 9, 2022, S272572; People v. Murillo (2020) 54 

Cal.App.5th 160 (Murillo), review granted Nov. 18, 2020, 

S264978; and People v. Law (2020) 48 Cal.App.5th 811

(Law), review granted July 8, 2020, S262490. In our view, 

reliance on Murillo and Law is misplaced, as neither applied 
20

a substantial-evidence standard; instead, each appeared to 

deem the evidence against the petitioner so overwhelming, 

even considered in a light favorable to the petitioner, as to 

resolve the relevant factual issues under Banks and Clark as 

a matter of law. (See Murillo, supra, 54 Cal.App.5th at 172, 

rev.gr.; Law, supra, 48 Cal.App.5th at 825, rev.gr.) Although 

Price, in contrast, supports the Attorney General’s position

that a finding of substantial evidence in support of a preBanks felony-murder special circumstance finding renders a 

petitioner ineligible for relief, we disagree with that position 

for the reasons stated above.

In sum, we conclude nothing in the record of conviction 

prevented appellant from clearing the “‘very low’” bar set by 

the Legislature at the prima facie stage. (Lewis, supra, 11 

Cal.5th at 972.) Accordingly, we reverse the order denying 

appellant’s petition at that stage, and remand to the trial 

court with directions to issue an order to show cause and 

proceed in accordance with section 1170.95.
21

DISPOSITION

The order denying appellant’s petition for resentencing

under section 1170.95 is reversed. The matter is remanded 

to the trial court with directions to issue an order to show 

cause and proceed in accordance with section 1170.95.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J.