1

Filed 12/20/21 P. v. Valle CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

RAUL A NTONIO VALLE,

Defendant and Appellant. A162298

(Marin County

Super. Ct. No. SC039946A)

Defendant Raul Antonio Valle and his former codefendant Cruz Alberto

Mendoza were convicted in 1994 of robbery

- burglary special

- circumstance

murder. Defendant was sentence d to life in prison without possibility of

parole, a judgment affirmed on appeal up to the California Supreme Court

.

( See People v. Mendoza (2000) 23 Cal.4th 896 , 900 ( Mendoza ) .)

In 2020

, defendant petitioned for re lief under newly enacted Penal

Code section 1170.95

, 1 a provision allowing a person

, such as himself

,

convicted of felony murder under a now invalidated theor y of accomplice

liability to seek resentencing. (See Sen. Bill No. 14 37 (2017

– 2018 Reg. Sess.)

( Sen. Bill 1437).)

The trial court summarily denied defendant’s petition on the ground s

that he was barred from relief under section 1170.95 based on the jury’s

1 Unless otherwise stated all statutory citations are to the Penal Code.2

special circumstance finding that he was either the actual killer or an aider

and abettor who, with the intent to kill, aided, abetted, or assisted in the

commission of the murder or

, with reckless indifference to human life and as

a major participant, aided, abetted, or assisted in the commission of a robbery

or burglary that resulted in someone’s death. ( See § 190.2, subds. (b)

– (d) .)

For reasons that follow, w e reject the trial cou rt’s legal premise that a

defendant convicted of special circumstance felony murder is automatically

barred from obtaining resentencing relief under section 1170.95

. The special

circumstance finding in defendant’s case w as made before the California

Supre me Court issued two opinions ( People v. Banks ( 2015 ) 61 Cal.4th 788

( Banks ) ; People v. Clark ( 2016 ) 63 Cal.4th 522 ( Clark ) ) that redefined the

circumstances under which a defendant

, such as ours

, could be convicted of

special circumstance felony murder. R ead together, Banks and Clark identify

factors for the jury to consider in determining whether a defendant was a

“major participant” who acted with “reckless indifference” in the course of a

felony murder. (

Banks, supra , at p. 803; Clark, supra , at pp. 618

– 623 .) I n

this case, no court has ever determined that, under Banks and Clark , the

special circumstance finding against defendant was supported by sufficient

evidence

. (

People v. Secrease (2021) 63 Cal.App.5th 231, 256 , review granted

June 30 , 2021, S268862 ( Secrease ).) While this court could theoretically

make this legal determination in the first instance, we lack a sufficient record

on appeal to do so.

Accordingly , we remand this matter to the trial court to determine on

an appropriate re cord whether the special circumstance finding against

defendant is supported by sufficient evidence when considered in light of

Banks and Clark and if not, to review his petition in accordance with section3

1170.95, subdivision (c) (as amended effective January 1, 2022) 2 to determine

whether he may be entitled to resentencing relief

. As explained post , if

defendant’s special circumstance is invalid under Banks/Clark , a prima facie

case could be made that his murder conviction is n o longer valid under

sections 188 and 189, as amended by Sen. Bill 1437.

FACTUAL AND PROCEDURAL BACKGROUND

A. Defendant’s Conviction.

The following facts are taken from Mendoza, supra , 23 Cal.4th 896, the

California Supreme Court’s opinion affirming the Court of Appeal’s upholding

of the conviction s of defendant and codefendant Mendoza.

On September 22 , 1992, defendant and Mendoza were indicted f or

“ ‘[m]urder in violation of Section 187(A) ,’ second de gree robbery (§ 211), and

burglary (§ 459). These charges arose out of the killing of Pastor Dan Elledge

at The Lord’s Church in Novato, California. As special circumstances for

sentencing purposes, the indictment also alleged that defendants committed

m urder while they were engaged in committing robbery and burglary.

(§ 190.2, subd. (a)(17).)” ( Mendoza, supra , 23 Cal.4th at p. 900.) On

defendants’ motion, the prosecution presented its evidence against

defendants simultaneously to separate juries. “As to both defendants, the

prosecution’s only murder theory was that Valle and Mendoza shot and killed

Pastor Elledge while burglarizing and robbing The Lord ’ s Church (as one in a

series of church robberies).” ( Ibid .)

“At trial, Valle conceded his guilt of all substantive charges but

contested the special circumstances allegations. Thus, he admitted having

committed first degree felony murder (as well as burglary and robbery) with

Mendoza at The Lord’s Church. However, he maintained Mendoza had fired

2 Stats. 2021 , ch. 551, § 2.4

the fatal gunshots. Based on this contention, Valle also argued that at the

time of the murder, he lacked the mental state a mere participant must have

for a true finding on the special circumstances allegations. In making this

argument, he relied on evidenc e that at the time of the murder, he suffered

from posttraumatic stress syndrome related to prior combat experiences in

El Salvador.” 3 (

Mendoza, supra , 23 Cal.4th at p. 904.)

“C onsistent with the prosecution’s theory and Valle’s defense, the trial

court instructed Valle’s jury only on first degree felony murder as follows:

‘The defendant is accused in Count One of the Indictment of having

committed the crime of murder, a violati on of Penal Code Section 187.

[¶] Every person who unlawfully kills a human being during the commission

or attempted commission of robbery or burglary, is guilty of the crime of

murder, in violation of Section 187 of the Penal Code. [¶] In order to prove

s uch crime, each of the following elements must be proved: First, a human

being was killed; second, the killing was unlawful; and third, the killing

occurred during the commission or attempted commission of robbery or

burglary. [¶] The unlawful killing of a human being, whether intentional,

unintentional or accidental, which occurs during the commission or

attempted commission of the crime of robbery or burglary, is murder of the

first degree when the perpetrator had the specific intent to commit such

crime

. [¶] The specific intent to commit robbery or burglary and the

commission or attempted commission of such crime must be proved beyond a

reasonable doubt. [¶] In order for an accused to be guilty of murder as an

aider and abettor of a burglary, he must hav e formed the intent to encourage

or facilitate the perpetrator prior to or at the time the perpetrator entered

3 The prosecution theorized that defendant was the actual killer of

Pastor Dan Elledge. ( Mendoza, supra , 23 Cal.4th at p. 905.)5

[T]he Lord’s Church with the required specific intent. [¶] For an accused to be

guilty of

. . . murder, as an aider and abettor to a robbery, he must have

formed the intent to encourage or facilitate the robbery prior to or during the

commission of the robbery. [¶] If a human being is killed by any one of

several persons engaged in the commission or attempted commission of the

crime of robbery or b urglary, all persons who either directly or actively

commit the act constituting such crimes, or with knowledge of the unlawful

purpose of the perpetrator of the crimes, and with the intent or purpose of

committing, encouraging or facilitating the commission of the offenses, aids,

promotes, encourages or instigates by act or advice its com mission, are guilty

of murder of the first degree whether the killing is intentional, unintentional,

or accidental. [¶] If you find the defendant in this case guilty of murder of the

first degree, you must determine if one or more of the [alleged] special

circumstances are true or not true.’ ” ( Mendoza, supra , 23 Cal.4th at pp. 904

–

905 .)

“ The jury found Valle ‘guilty of the offense charged in Count I , a felony,

to wit, murder in violation of Section 187(a)

. . . .’ It also found him guilty of

second degr ee robbery and burglary, and found true the special

circumstances allegations that he had committed the murder while

committing robbery and burglary.

. . . At the penalty phase of the trial, the

jury found that Valle’s penalty should be life in prison wit hout possibility of

parole, rather than death. The trial court subsequently entered a judgment

against Valle for first degree murder and sentenced him in accordance with

the jury’s finding. The Court of Appeal affirmed the judgment

, ” as did our

Supreme Court. (

Mendoza, supra , 23 Cal.4 th at p. 907.)6

B. Postconviction Legal Changes.

1. Banks

, Clark and Their Progeny

.

The special circumstance statute, “ [s] ection 190.2, subdivision (d)[,]

states in relevant part that ‘every person, not the actual killer, who, with

reckless indifference to human life and as a major participant, aids, abets,

counsels, commands, induces, solicits, requests, or assists in the commission

of a felony enumerated in para graph (17) of subdivision (a) which results in

the death of some person or persons, and who is found guilty of murder in the

first degree therefor, shall be punished by death or imprisonment in the state

prison for life without the possibility of parole if a special circumstance

enumerated in paragraph (17) of subdivision (a) has been found to be true

under Section 190.4.’ By its terms, subdivision (d) ‘imposes both a special

actus reus requirement, major participation in the crime, and a specific

mens rea requirement, reckless indifference to human life.’ ( Banks, supra , 61

Cal.4th at pp. 798

– 799 .)” ( In re Moore (2021) 68 Cal.App.5th 434, 446

( Moore ).)

In 201 5 , the California Supreme Court in Banks considered when a

defendant ’s participation in a felony murder could be deemed “major” for

purposes of section 190.2

, subdivision (d)

, identif ying the following factors as

relevant: (1) the defendant’s role in planning the criminal enterprise that led

to one or more deaths ; (2) his or her role in supply ing or using lethal

weapons ; (3) whether he or she was aware of particular dangers posed by the

nature of the crime, weapons used, or past experience or conduct of the other

participants ; (4) whether the defendant was presen t at the scene of the

killing ; ( 5) whether he or she was in a position to facilitate or prevent the

actual murder ; (6) whether his or her own actions or inaction play a

particular role in the death ; and (7) the defendant ’s response to the use of7

lethal force

. (

Banks, supra

, 61 Cal.4th at p. 803.) The court counseled, “No

one of these considerations is necessary, nor is any one of them necessarily

sufficient. All may be weighed in determining the ultimate question, whether

the defendant’s participation ‘in criminal activit ies known to carry a grave

risk of death’ [citation] was sufficiently significant to be considered ‘major’

[citations].” (

Ibid. )

In Clark , supra , in 2016

, the court focused on whether a defendant

could be found to have acted with “ ‘reckless indifference to human life,’ ” a

term possessing an objective and a subjective component. As to the

subjective component, reckless indifference “encompasses a willingness to kill

(or to assist another in killing) to achieve a distinct aim, even if the de fendant

does not specifically desire that death as the outcome of his actions.” ( 63

Cal.4 th at p. 617 .) As to the objective component, “ ‘[t]he risk [of death] must

be of such a nature and degree that, considering the nature and purpose of

the actor ’ s co nduct and the circumstances known to him [or her], its

disregard involves a gross deviation from the standard of conduct that a law

abiding person would observe in the actor ’ s situation.’ ” ( Ibid

., quoting Model

Pen. Code, § 2.02, subd. (2)(c).) Thus, i n considering whether a defendant

acted with reckless indifference, the court found the following factors

relevan t (many of which overlap with the Banks factors) : (1) whether the

defendant use d a weapon or kn e w a weapon would be used during the felony ;

(2) how many weapons were used ; (3) whether the defendant was physically

present at the scene; (4) whether the defendant ha d the opportunity to

restrain the crime or aid the victim ; (5) the duration of the interactio n

between the perpetrators of the felony and the victims ; (6) whether the

defendant knew his or her confederate ’ s propensity for violence or likelihood

of using lethal force ; and (7) what efforts

, if any, the defendant ma d e to8

minimize the risks of violence during the felony

. ( Clark, supra

, at pp. 618

–

623.) As before, “ ‘[n]o one of these considerations is necessary, nor is any one

of them necessarily sufficient.’ ” ( Id

. at p. 618, quoting Banks, supra

, 61

Cal.4 th at p. 803 .)

A recent California Supreme Court decision addressed the

postconviction relief available to a defendant

, such as ours

, convicted of

special circumstance felony murder before Banks / Clark

. “Where a decision

clarifies the kind of conduct proscribed by a statute, a d efendant whose

conviction became final before that decision ‘is entitled to post

- conviction

relief upon a showing that his [or her] conduct was not prohibited by the

statute’ as construed in the decision. [Citation.] ‘In such circumstances, it is

settled that finality for purposes of appeal is no bar to relief, and that

habeas corpus or other appropriate extraordinary remedy will lie to rectify

the error

. . . .’ ” (

In re Scroggins (2020) 9 Cal.5 th 667, 673

– 674 .) I f there is

no material d ispute as to the facts underlying the conviction and it appears

the statute under which the defendant was convicted did not prohibit his or

her conduct, he or she may be entitled to postconviction relief. ( Id . at p. 674.)

2. Sen. Bill 1437.

In 2018, the Legislature enacted Sen. Bill 1437 to amend sections 188

and 189 to restrict murder liability based on felony murder or natural and

probable consequences theories. (Stats. 2018, ch. 1015 , §§ 1

– 3 .) Sen. Bill

1437 also added section 1170.95 (Stats. 2018, ch. 1015, § 4) , under which a

person convicted of felony murder or murder under a natural and probable

consequences theory is eligible to have his or her murder conviction vacated

and to be resentenced on any remaining counts if the following conditions are

met : “(1) A complaint, information, or indictment was filed against the

petitioner that allowed the prosecution to proceed under a theory of felony9

murder or murder under the natural and probable consequenc es doctrine.

[¶] (2) The petitioner was convicted of first degree or second degree murder

following a trial or accepted a plea offer in lieu of a trial at which the

petitioner could be convicted for first degree or second degree murder.

[¶] (3) The petitio ner could not be convicted of first or second degree murder

because of changes to Section 188 or 189 made effective January 1 , 2019.”

( § 1170.95, subd. (a) .)

C. Defendant’s Petition for Resentencing (§ 1170.95)

.

Defendant filed a petition under section 1170 .95 on January 3 , 2020

.

The petition included a declaration asserting that he was convicted of first

degree murder under the felony murder rule or the natural and probable

consequences doctrine and could not be convicted of first degree murder

under the newly amended version of section 188 or 189.

On January 29 , 202 0 , counsel was appointed to represent defendant for

purposes of his petition. On July 17 , 202 0 , defendant’s appointed counsel

file d an amended petition for resentencing, the operative petition on appeal.

This petition included a declaration from counsel clarifying that defendant

could not be convicted of murder under the newly amended versions of

sections 188 and 189 because he was not the actual killer; did not, with the

intent to kill, aid, abet, counsel, command, solicit, request, or assist the

actual killer in the commission of murder; and was not a major participant

who acted with reckless indifference to human life during the c ourse of the

felonies of robbery and burglary.

On February 11 , 2021, the trial court heard argument from counsel

before den y i ng defendant’s petition. T he trial court found defendant failed to

establish a prima facie case of entitlement to relief under se ction 1170.95,10

subdivision (c) due to the jury’s true finding on the felony murder special

circumstance . This timely appeal followed.

DISCUSSION

Defendant contends the trial court erred when ruli ng as a matter of law

that a jury’s felony

- murder special

- circumstance finding precludes relief

under section 1170.95

, subdivision (c)

. The following legal framework is no t

in dispute

.

“The determination of prima facie entitlement to relief dictates whether

an order to show cause issues an d an evidentiary hearing is set. On this

point, section 1170.95, subdivision (c) is phrased in mandatory terms.

(§ 1170.95, subd. (c) [‘If the petitioner makes a prima facie showing that he or

she is entitled to relief, the court shall issue an order to show cause.’ (italics

added)].) At the evidentiary hearing, either party may present new or

additional evidence probative of whether the petitioner may be validly

convicted of murder under current law, and the prosecution bears the burden

of proof under a reasonable doubt standard. ( § 1170.95, subd. (d)(3) .)”

( Secrease , supra

, 63 Cal.App.5th at p. 243 , rev iew granted .)

“ While the trial court may look at the record of conviction after the

appointment of counsel to determine whether a petitioner has made a

prima facie case for section 1170.95 relief

, the prima facie inquiry under

subdivision (c) is limited. Like the analogous prima facie inquiry in

habeas corpus proceedings, ‘ “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 allegatio ns were

proved. If so, the court must issue an order to show cause.” ’ [Citation.] ‘[A]

court should not reject the petitioner’s factual allegations on credibility

grounds without first conducting an evidentiary hearing.’ [Citation.]11

‘However, 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.” ’ [Citation.]”

( People v. Lewis (2021) 11 Cal.5th 952, 971 ( Lewis ). )

“Appellate opinions

. . . are generally considered to be part of the record

of conviction. [Citation.] However,

. . . the probative value of an appellate

opinion is case specific, and ‘it is certainly correct that a n appellate opinion

might not supply all answers.’ [Citation.] In reviewing any part of the record

of conviction at this preliminary juncture, a trial court should not engage in

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

. . . [T] he ‘ prima facie bar was intentionally and correctly set very low.’ ”

( Lewis

, supra

, 11 Cal.5th at p. 9 7 2 .)

On appeal, “[b] ecause we are tasked with applying the section 1170.95,

subdivision (c) governing prima facie entitlement to relief [citation], our

review is de novo

. [Citation.] As with any case involving statutory

interpretation, our primary goal is to ascertain and effectuate the lawmakers’

intent.” ( Secrease, supra , 63 Cal.App.5th at p. 244 , review granted .)

I. A pre

-

Banks/Clark special circumstance finding does not

automatically bar a defendant from obtaining section 1170.95

resentencing relief.

The People’s primary argument is twofold

. T he People argue the legal

issue whether a pre

- Banks/Clark special circumstance finding is supported

by sufficient evidence must be raised in a p etition for writ of habeas corpus

,

with the defendant bearing the burden of proof ( In re Scoggins , supra

, 9

Ca l .5 th at pp. 673

– 674 )

, rather than in a section 1170.95 pet ition

.

Additionally , the People point to the fact that section 189, as amended

,

authorizes a defendant who was not the actual killer to be convicted of felony

murder under the same circumstances delineated in section 190.2

— to wit,12

when the defendant “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 )(3)). 4 Here, the jury was instructed that to

find the special circumstance true under section 190.2, subdivision (a)(17) , it

had to find that defendant was the actual killer, that he aided and abetted

the murder with the intent to kill, or that he aided and abett ed the robbery

burglary that led to the victim’s death while acting as a major participant

with reckless indifference to human life. T he People thus argue that the

jury’s special circumstance finding establishes as a matter of law that

defendant could sti ll be convicted of felony murder under the new version of

section 189, which preclud es him from making a prima facie case under

section 1170.95, subdivision (c)

.

Several courts have adopted th e People’s reasoning

, and the issue is

presently pending before the California Supreme Court in People v. Strong

,

rev iew granted March 10 , 2021 , S266606 . (See, e.g

. , People v. Galvan (2020)

52 Cal.App.5 th 1134, 1141

– 1144

, review granted Oct. 14 , 2020, S264284

[ remedy of habeas corpus must be sought in the first instance, as it is not the

changes to §§ 188 & 189 that potentially render a defendant’s murder

conviction invalid under current law but, rather, the Banks and Clark

decisions ] ; People v. Murillo (2020) 54 Cal.App.5th 160, 168

– 169

, review

granted Nov. 18 , 2020, S264978; People v. Gomez (2020) 52 Cal.App.5 th 1,

13

– 15

, review granted Oct. 14 , 2020, S264033 .)

Other courts , including our First Appellate District, Division Four

colleagues in Secrease

, have disagree d with this reasoning . These courts hold

4 Section 189, subdivis ion (e)(3) provides in relevant part that to be

liable for felony murder, a defendant must be “a major participant in the

underlying felony [who] acted with reckless indifference to human life, as

described in subdivision (d) of Section 190.2.”13

that a pre

- Banks / Clark special circumstance finding does not by itself defeat

a defendant’s prima facie showing under section 1170.95

, even if the

defendant has not collaterally attack ed the finding by habeas corpus . ( See,

e.g., Secrease, supra , 63 Cal.App.5th at p p

. 254

– 256 , review granted ; People v.

Arias (2021) 66 Cal.App.5th 987, 1004 [ “we are persuaded by the logic of the

courts that have concluded pre

- Banks an d Clark felony

- murder special

circumstance findings do not categorically preclude defendants from

obtaining resentencing relief under section 1170.95” ] , review granted

Sept. 29, 2021, S 270555 ; People v. Torres (202 0 ) 46 Cal.App.5th 1168

, 1179

–

1180

, review granted June 24 , 2020, S262011 ( Torres ) .)

“ Other courts do not impose a requirement that a section 1170.95

petitioner who seeks resentencing in the face of a prior jury finding under

section 190.2, subdivision (a)(17) must first obtain habeas corpus reli ef, and

hold that he may opt to pursue relief by attacking his murder conviction

— not

his special circumstance finding

— on the ground that, under current law as

revised by Senate Bill 1437, he could no longer be convicted of murder.

( Torres, supra , 46 Cal.A pp.5th at pp. 1179

– 1180

, review granted; [ People v .]

Smith [(2020)] 49 Cal.App.5th [85,] 93

– 94

, review granted [ July 22, 2020,

S262835] ; [

People v .] York [(2020)] 54 Cal.App.5th [250,] 259

– 261

, review

granted [Nov. 18, 2020, S264954] ; [ People v .] Harris [(2021)] 60 Cal.App.5th

[939,] 956

– 958[, review granted Apr. 28, 2021, S267802] .) According to these

courts, if the petitioner obtains vacatur of a prior special circumstance

finding in a section 1170.95 proceeding

, that is because the statute expressly

requires it as a ‘ collateral consequence ’ of the resentencing relief to which a

successful section 1170.95 petitioner is entitled. ( York, supra

, 54 Cal.App.5th

at p. 260

, review granted.) [¶] These courts see no basis to g raft what is, in

effect, an exhaustion requirement onto section 1170.95

, thereby forcing14

petitioners with felony

- murder special

- circumstances findings to obtain

habeas corpus relief first, before seeking section 1170.95 resentencin g. In

their view, because Banks and Clark ‘construed section 190.2, subdivision (d)

in a significantly different, and narrower manner than courts had previously

construed the statute ’ ( Torres, supra , 46 Cal.App.5th at p. 1179

, review

granted)

, it is not appropriate to give a pre

- Banks and Clark felony

- murder

special

- circumstance finding preclusive effect .” ( Secrease, supra , 63

Cal.App.5th at pp. 253

– 254 , review granted .)

Agreeing with this line of cases, the Secrease court concluded that,

while “ it is true that the language of section 189, subdivision (e)(3) tracks

language that has always been a part of section 190.2, subdivision (d), Banks

and Clark placed new limits on its meaning. Because we must presume the

Legislature knows and acts against the backdrop of existing case law

[citations ], the language of section 189, subdivision (e)(3) as enacted by the

Legislature in 2018 necessarily carries the meaning announced in Banks and

Clark , since both cases were on the books when Senate Bill 1437 was passed

and signed by the Governor.” ( Secrea se, supra , 63 Cal.App.5th at p. 254

,

review granted ; see York, supra , 54 Cal.App.5th at p. 261, rev iew granted

[ “What permits a defendant convicted of felony murder to challenge his or her

murder conviction based on the contention that he or she was not a major

participant in the underlying felony who acted with reckless indifference to

human life are the changes Se nate Bill 1437 made to sections 188 and 189

,

and in particular the addition of section 189, subdivision (e)(3)

, not the

rulings in Banks and Clark ” ] .)

Thus, “[i] f the factual findings underlying a jury’s felony

- murder

special

- circumstance determination are legally insufficient under Banks and

Clark , we do not see how those findings can conclusively refute a prima facie15

showing of entitlement to resentencing relief

. Because the changes made to

section 189 prevent a defendant from being convicted of murder solely for his

participation in the offense without findings of major participation and

reckless indifference to human life, we conclude that a jury’s pre

- Banks a nd

Clark special circumstance determination cannot, by itself, defeat the

allegations of [the defendant’s] petition as a matter of law. There must also

be a judicial determination of the sufficiency of the evidence to support that

determination, and [the defendant] is entitled to have it made in a section

1170.95 proceeding

— under current law.” ( Secrease, supra , 63 Cal.App.5th at

p. 256 , r eview granted .)

Mindful that this issue will soon be decided by the California Supreme

Court (see People v. Strong, supra , S266606 ), we endorse t he position just set

forth

, and hol d in line with Secrease

, Torres

, York

, Arias and others 5 that

(1) a pre

- Banks / Clark special circumstance finding is not a categorical bar to

section 1170.95 relief and (2) a defendant may challenge a jury’s special

circumstance finding under Banks / Clark when petitioning for s ection 1170.95

relief even if he or she has not first done so by habeas corpus

. (See In re

Scroggins, supra, 9 Cal.5th at pp. 673

– 674 [ “ ‘habeas corpus or other

appropriate extraordinary remedy will lie to rectify [ Banks/Clark ] error’ ”

(italics added) ] .)

II. While an appellate court could in the first instance decide

whether a felony

- murder special

- circumstance finding remains

valid under current California law, we lack a sufficient record

to do so here.

In this case, a t the prosecutor’s request, the trial co urt took judicial

notice of the following documents: (1) a copy of the opinion in People v.

5 In the name of judicial efficiency, we adopt and incorporate herein the

more detailed analyses on this issue set forth by these appellate courts.16

Mendoza , supra

, 23 Cal.4th 896; (2) CALJIC No. 8.80.1 , the special

circumstance instruction read to the jury in this case; (3) pages 14431

– 14433

of the reporter’s transcript from the trial proceeding in which the jury was

instructed on felony murder and special circumstance felony murder ; (4) the

signed verdict forms in this case; and (5) CALCRIM No. 540B as revised in

April 2020, incorporating the new language added to section 189 by Sen. Bill

1437.

This record reflects that the jury was instructed for purposes of the

special circumstances allegations, “ A defendant acts with reckless

indifference to human li fe when such defendant knew or was aware that his

acts involved an extreme likelihood that such acts could result in the death of

an innocent human being.” 6 No definition of “major participant” was given.

T he only judicially noticed document containing a descri ption of the

underlying facts of this case i s the Mendoza opinion. As the respondent’s

brief readily admit s , the Mendoza court considered only the legal issue of the

6 Specifically, the jury was instructed in relevant part: “If you are

satisfied beyond a reasonable doubt that the defendant actually killed a

human being, you need not find that the defendant intended to kill in order

to find the special circumstance to be true.

“If you find that the defendant was not the actual killer of a human

being, or if you are unable to decide whether defendant was the actual killer

or an aider and abettor, you cannot find the special circumstance to be true

unless you are satisfied beyond a reasonable doubt that such defendant, with

the intent to kill, aided, abetted , counseled, commanded, induced, solicited,

requested or assisted any actor in the commission of the murder in the first

degree, or with reckless indifference to human life and as a major participant,

aided, abetted, counseled, commanded, induced, solicite d, requested, or

assisted in the commission of the crime of robbery or burglary at The Lord’s

Church which resulted in the death of a human being, namely Dan Elledge.

“A defendant acts with reckless indifference to human life when such

defendant knew or was aware that his acts involved an extreme likelihood

that such acts could result in the death of an innocent human being.”17

proper construction of section 1158 , a provision requiring the jury to find the

d egree of the crime when finding a defendant guilty of a crime that is

distinguished into degrees

. (See Mendoza, supra , 23 Cal.4th at p. 907.) As

such, Mendoza lacks a detailed statement of facts, leaving us unable to assess

the degree of defendant’s participation in or mental state during the felony

murder. Defense counsel apparently argued that codefendant Mendoza fired

the fatal gunshots and that defendant “ lacked the mental state a mere

participant must have for a true finding on the special circumstances

allegation s .” However, the only evidence referenced in Mendoza that

support s these arguments was evidence that defendant suffered from

posttraumatic stres s syndrome relating to prior combat experience in

El Salvador. ( Mendoza, supra , 23 Cal.4th at p. 904.)

Accordingly, we must remand this matter to the trial court: (1) to

determine in the first instance whether there is sufficient evidence to uphold

the jury’s special circumstance findings under the Banks/Clark standard;

and (2) if there is not such evidence, to conduct a prima facie review of

defendant’s petition for resentencing in accordance with section 1170.95,

subdivision (c) (a s amended effective January 1, 2022 )

. 7

DISPOSITION

The trial court’s summary denial of defendant’s petition for

resentencing under section 1170.95 is reversed

, and the matter is remanded

for further proceedings consistent with th is opinion.

7 See footnote 2

, ante

, p. 2

.18 _________________________ Jackson, P. J.

WE CONCUR:

_________________________ Simons, J.

_________________________ Burns, J.

A162298/ People v. Raul Antonio Valle