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Filed 11/15/22 P. v. Carrera CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID CARRERA,

Defendant and Appellant.

C091533

(Super. Ct. No. 06F00314)

OPINION ON TRANSFER

Petitioner David Carrera appeals from a postjudgment order denying his petition 

for resentencing under Penal Code section 1172.6.1 Petitioner argues the trial court erred 

by determining he was ineligible for resentencing as a matter of law based on the jury’s 

felony-murder special-circumstance finding. In an unpublished opinion, we affirmed that 

1 Further undesignated statutory references are to the Penal Code. Effective 

June 30, 2022, former section 1170.95 was recodified without substantive change to 

section 1172.6. (Stats. 2022, ch. 58, § 10.) We will refer to section 1172.6 throughout 

this opinion. 
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decision, holding the special-circumstance finding against petitioner rendered him 

ineligible for relief as a matter of law. (People v. Carrera (July 28, 2021, C091533) 

[nonpub. opn.].) 

On October 19, 2022, the California Supreme Court transferred the matter back to 

us with directions to vacate our opinion and reconsider the cause in light of People v. 

Strong (2022) 13 Cal.5th 698 (Strong). On October 24, 2022, we ordered our opinion

vacated and set a briefing schedule. 

Relying on Strong, petitioner argues the jury’s true finding on the felony-murder 

special-circumstance allegation rendered prior to the opinions in People v. Banks (2015) 

61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 does not render him ineligible 

for relief under section 1172.6. Petitioner also contends the trial record demonstrates he 

was not a major participant who acted with reckless indifference to life in the underlying 

felony. He asks this court to vacate his murder conviction accordingly. 

The People concede the special-circumstance finding does not preclude relief 

under section 1172.6, but argue the matter should be remanded to allow the court to issue 

an order to show cause and conduct an evidentiary hearing pursuant to section 1172.6, 

subdivision (d)(3). Having reconsidered the matter, we agree; we will reverse and 

remand the matter accordingly. 

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner filed a petition to vacate his first degree murder conviction under 

section 1172.6. The declaration attached to his petition provided the information “filed 

against [him] . . . allowed the prosecution to proceed under a theory of felony 

murder . . . .” Petitioner also declared that following a trial, “[he] was convicted of [first]

degree felony murder . . . .” Following the amendments made to sections 188 and 189, he 

“could not now be convicted because . . . [¶] [he] was not the actual killer. 

“[He] did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, 

request, or assist the actual killer in the commission of murder in the first degree. 
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“[He] was not a major participant in the felony or [he] did not act with reckless 

indifference to human life during the course of the crime or felony.” Petitioner also 

requested the appointment of counsel. 

The parties filed responsive pleadings and petitioner was represented by counsel. 

The court then ruled “based on the record of conviction[,] including the opinion by the 

Third District Court of Appeal in the appeal affirming the judgment.” 

In its ruling, the trial court found petitioner “was convicted at trial of one count of 

Penal Code [section] 187[, subdivision] (a) first degree murder, with a Penal Code 

[section] 190.2[, subdivision] (a)(17) robbery-murder special circumstance true, . . . The 

jury was instructed with CALCRIM No. 401 on direct aiding and abetting, and a special 

instruction was given that to convict of murder on an aiding and abetting theory, it must 

be found that [petitioner] shared the perpetrator’s intent . . . [petitioner] was not convicted 

of murder based on the natural and probable consequences doctrine of aiding and abetting 

in any manner. The jury was additionally instructed with CALCRIM No. 540A, on the 

theory of first degree felony-murder based upon robbery or kidnapping, but was also 

additionally instructed with [CALCRIM] No. 703, on the felony-murder special 

circumstance that was charged under a theory solely of robbery-murder; the instruction 

required that the jury find that [petitioner] was either the actual killer, acted with intent to 

kill, or was a major participant in the robbery with reckless indifference to human life. 

As the jury unanimously found true, beyond a reasonable doubt, that the robbery-murder 

special circumstance was true [sic], it necessarily concluded that [petitioner] had 

committed robbery-murder, and that he did so either as the actual killer, with intent to 

kill, or as a major participant in the robbery with reckless indifference to human life. 

“[Petitioner] appealed the judgment to the Third District Court of Appeal, which 

affirmed the judgment. [Petitioner] did not raise a challenge to the robbery-murder 

special circumstance on the appeal, but had opportunity to do so. He has also had 

opportunity since the affirmance on appeal to attempt to challenge the robbery-murder 
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special circumstance in a habeas corpus proceeding, under People v. Banks (2015) 

61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, but does not present any 

documentary evidence to the court to show that he has done so and obtained relief from 

the robbery-murder special circumstance finding.” (Italics added.) 

The trial court found petitioner was ineligible for resentencing because “he could 

have been, and beyond a reasonable doubt was, convicted of first degree murder based on 

robbery-murder in which he was either the actual killer, intended to kill, or was a major 

participant in the robbery who acted with reckless indifference to human life. Penal Code 

[sections] 187 and 189 still provide for first degree murder based on robbery-murder, 

when the trier of fact has found beyond a reasonable doubt that the defendant is guilty of 

robbery-murder and that the defendant either was the actual killer, intended to kill, or was 

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

[Petitioner]’s jury unanimously found that to be so beyond a reasonable doubt, and it 

does not appear that that finding has been disturbed in any postconviction proceeding. 

As such, [petitioner] is ineligible for relief under [section 1172.6].” 

DISCUSSION

I

Applicable Law

Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, revised 

the felony-murder rule in California “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).) The bill amended the definition of malice in 

section 188, revised the definition of the degrees of murder to address felony-murder 

liability in section 189, and added section 1172.6, “which provides a procedure by which 

those convicted of murder can seek retroactive relief if the changes in the law would 
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affect their previously sustained convictions.” (People v. Gutierrez-Salazar (2019) 

38 Cal.App.5th 411, 417, citing Stats. 2018, ch. 1015, §§ 2-4.) 

Section 1172.6, subdivision (a) states that a person convicted of felony murder or 

murder under a natural and probable consequences theory may file a petition with the 

court for resentencing “when all of the following conditions apply: [¶] (1) A complaint, 

information, or indictment was filed against the petitioner that allowed the prosecution to 

proceed under a theory of felony murder or 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. 

[¶] (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.” 

Section 1172.6, subdivision (b) requires the petitioner to submit a declaration that 

avers eligibility for relief under the statute (based on the requirements of subdivision (a)) 

and states the superior court case number, the year of conviction, and whether the 

petitioner requests appointment of counsel. (§ 1172.6, subd. (b).) Section 1172.6, 

subdivision (c), which dictates how the court must handle the petition, reads: “Within 60 

days after service of a petition that meets the requirements set forth in subdivision (b), the 

prosecutor shall file and serve a response. The petitioner may file and serve a reply 

within 30 days after the prosecutor’s response is served. These deadlines shall be 

extended for good cause. After the parties have had an opportunity to submit briefings, 

the court shall hold a hearing to determine whether the petitioner has made a prima facie 

case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled 

to relief, the court shall issue an order to show cause. If the court declines to make an 
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order to show cause, it shall provide a statement fully setting forth its reasons for doing 

so.” 

Section 1172.6, subdivision (d) provides that a hearing to determine whether to 

vacate the murder conviction, recall the sentence, and resentence the petitioner as needed 

should be held within 60 days after the order to show cause; and the prosecution bears the 

burden of proving beyond a reasonable doubt that the petitioner is ineligible for 

resentencing. 

II

Prima Facie Showing

On transfer from the Supreme Court, petitioner maintains the trial court erred in 

relying on the jury’s felony-murder special-circumstance finding to determine he was 

precluded from relief under Senate Bill No. 1437. Following the Supreme Court’s recent 

opinion in Strong, supra, 13 Cal.5th 698, the People concede petitioner has made a prima 

facie case for relief and we accept their concession. 

As relevant here, section 190.2, subdivision (d) provides that for the purposes of 

the special-circumstance allegations based on the enumerated felonies in paragraph (17) 

of subdivision (a), which include robbery, an aider and abettor must, at a minimum, have 

been a “major participant” and have acted “with reckless indifference to human life.” 

(§ 190.2, subd. (d); see People v. Banks, supra, 61 Cal.4th at p. 798.) 

In Strong, the Supreme Court held “[f]indings issued by a jury before Banks and 

Clark do not preclude a [petitioner] from making out a prima facie case for relief under 

Senate Bill [No.] 1437. This is true even if the trial evidence would have been sufficient 

to support the findings under Banks and Clark.” (Strong, supra, 13 Cal.5th 698 at 

p. 710.) Further, our Supreme Court concluded, “Banks and Clark both substantially 

clarified the law governing findings under . . . section 190.2, subdivision (d): Banks

elucidated what it means to be a major participant and, to a lesser extent, what it means to 

act with reckless indifference to human life, while Clark further refined the reckless 
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indifference inquiry.” (Strong, at pp. 706-707.) The court concluded these two rulings 

reflected a significant change in the law and justified the denial of giving preclusive 

effect to jury findings made before this change in law. (Id. at pp. 716-718.) 

Under the law that existed at the time of petitioner’s conviction, the jury’s finding 

relative to the robbery-murder special-circumstance carried with it a conclusion, at a 

minimum, that petitioner was a major participant in the crime who acted with reckless 

disregard for human life. That finding, however, was made in 2011, well before the 

Supreme Court’s opinions in Banks and Clark. Following the opinion in Strong, this preClark/Banks jury finding does not preclude petitioner from establishing a prima facie 

case for relief under section 1172.6. (Strong, supra, 13 Cal.5th at p. 710.) The People do 

not, however, limit their concession to the possibility that petitioner could establish a 

prima facie case for relief under section 1172.6, but concede petitioner has made such a 

case. We accept their concession. 

Having made a prima facie case for relief, petitioner now is entitled to an 

evidentiary hearing under section 1172.6, subdivision (d)(3). He is not, as he now 

contends, entitled to have this court vacate his murder conviction. We shall, therefore, 

remand this matter to the trial court with instructions to issue an order to show cause and 

hold an evidentiary hearing on the petition. 
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DISPOSITION

The order denying the petition is reversed. The case is remanded to the trial court 

for issuance of an order to show cause and to hold an evidentiary hearing on the petition. 

/s/ 

Robie, Acting P. J.

We concur:

/s/ 

Hoch, J.

/s/ 

Renner, J.