Filed 6/25/21 P. v. Flores CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

PAUL RICHARD FLORES,

Defendant and Appellant.

B308289

(Los Angeles County

Super. Ct. No. BA195400)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County. Michael E. Pastor, Judge. Affirmed.

Mark D. Lenenberg, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Matthew Rodriquez, Acting Attorney General, Lance E. 

Winters, Chief Assistant Attorney General, Susan Sullivan 

Pithey, Senior Assistant Attorney General, Amanda V. Lopez and 

David E. Madeo, Deputy Attorneys General, for Plaintiff and 

Respondent.

_________________________________
2

This appeal from the denial of a petition for resentencing 

under Penal Code1 section 1170.95 presents the same issues we 

addressed in People v. Nunez (2020) 57 Cal.App.5th 78, review 

granted January 13, 2021, S265918 (Nunez): (1) May the 

superior court rely solely on the jury’s felony-murder specialcircumstance finding to deny the petition for failure to make a 

prima facie showing that the petitioner falls within the provisions 

of section 1170.95?2 and (2) May a defendant challenge a first 

degree murder conviction by attacking the validity of the jury’s 

felony-murder special-circumstance finding under 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) in 

a petition for relief under section 1170.95?

We resolve these issues in accordance with our decision in 

Nunez and hold that the superior court may deny a section 

1170.95 petition after the prima facie review on the ground that a 

defendant convicted of murder with a felony-murder specialcircumstance finding (§ 190.2, subd. (a)(17)) is not, as a matter of 

1 Undesignated statutory references are to the Penal Code.

2 The California Supreme Court has granted review of this 

issue in People v. Strong, review granted March 10, 2021, 

S266606 [“Does a felony-murder special circumstance finding 

(Pen. Code, § 190.2, subd. (a)(17)) made before People v. Banks

(2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 

preclude a defendant from making a prima facie showing of 

eligibility for relief under Penal Code section 1170.95?”] 

(<https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScr

een.cfm?dist=0&doc_id=2339000&doc_no=S266606&request_toke

n=NiIwLSEmTkw6WyBRSCM9TEhIMFQ0UDxTJSM%2BXzpSU

CAgCg%3D%3D> [as of May 26, 2021], archived at 

<https://perma.cc/P8YS-L3CV>.)
3

law, eligible for resentencing under section 1170.95. (Nunez, 

supra, 57 Cal.App.5th at pp. 83, 90–92, rev.gr.; see also People v. 

Jones (2020) 56 Cal.App.5th 474, 479, review granted Jan. 27, 

2021, S265854 (Jones); People v. Allison (2020) 55 Cal.App.5th 

449, 457 (Allison); People v. Murillo (2020) 54 Cal.App.5th 160, 

167, review granted Nov. 18, 2020, S264978 (Murillo); People v. 

Galvan (2020) 52 Cal.App.5th 1134, 1140–1141, review granted 

Oct. 14, 2020, S264284 (Galvan); People v. Gomez (2020) 52 

Cal.App.5th 1, 16–17, review granted Oct. 14, 2020, S264033 

(Gomez).) We also hold that a section 1170.95 petition is not the 

proper vehicle for challenging a murder conviction by attacking, 

under our Supreme Court’s decisions in Banks and Clark, the 

jury’s prior factual finding that the defendant was a major 

participant who acted with reckless indifference to human life, 

and that such claims may only be raised in a petition for habeas 

corpus. (See Jones, at p. 483, rev.gr.; Nunez, at pp. 83, 95–97, 

rev.gr.; Allison, at pp. 458, 461; Gomez, at pp. 16–17, rev.gr.; 

Galvan, at p. 1142, rev.gr.; Murillo, at p. 168, rev.gr.)

FACTS3 AND PROCEDURAL BACKGROUND

In 1997, appellant and another individual committed a 

burglary and robbery in which one person was shot and another 

killed. (Flores, supra, B146005.) According to the surviving 

3 Because the underlying facts of appellant’s murder 

conviction are not relevant to our analysis, we only briefly 

summarize the statement of facts from our unpublished opinion 

in appellant’s direct appeal: People v. Flores (June 7, 2001, 

B146005) (Flores). (See People v. Lewis (2020) 43 Cal.App.5th 

1128, 1134, 1138, review granted Mar. 18, 2020, S260598 [court 

may review record of conviction in assessing sufficiency of a

section 1170.95 petition].)
4

victim, two men entered the apartment and shot both victims. 

After ascertaining that one victim was dead, the assailants took 

the wallet of the other man and left.

Approximately two years later, appellant sought leniency 

on another charge for which he was in custody by offering to 

share information about a murder he claimed to have witnessed. 

Based upon appellant’s statements, police determined appellant 

had not merely witnessed the crime but had been a participant 

and charged him with first degree murder (§ 187, subd. (a)), 

assault with a firearm (§ 245, subd. (a)(2)), attempted first degree 

residential robbery (§§ 664/211), first degree residential robbery 

(§ 211), and two counts of first degree residential burglary 

(§ 459).

Appellant was convicted as charged following a jury trial in 

2000. In addition, the jury found true the special circumstances 

that the murder was committed while appellant was engaged in 

the crimes of robbery and burglary (§ 190.2, subd. (a)(17)), and 

appellant was armed with a firearm (§ 12022, subd. (a)). The 

trial court found several prior conviction allegations true and 

sentenced appellant to life without the possibility of parole plus 

87 years in state prison.

On direct appeal, this court modified the sentence by 

staying the consecutive terms for attempted robbery and robbery 

and by striking a firearm enhancement on the assault count. In 

all other respects the judgment was affirmed.

On April 20, 2018, appellant filed a petition for writ of 

habeas corpus for relief under Banks and Clark. The superior 

court denied the habeas petition. Following a thorough analysis 

of the facts of the offenses in light of the Banks and Clark factors, 

the court found that as a major participant in the burglary and 
5

robbery who acted with reckless indifference to human life, 

appellant was not entitled to relief under Banks and Clark.

On October 11, 2019, appellant filed a petition for 

resentencing under section 1170.95, in which he alleged he was 

charged and convicted of first degree felony murder and,

pursuant to the amendments to sections 188 and 189, he could 

not now be convicted of murder because he was not the actual 

killer and lacked the intent to kill. The trial court stated it had 

reviewed the resentencing petition and the court file, including 

the court minutes and jury instructions, and a public defender 

was appointed to represent appellant.

Following briefing and argument from the parties, the 

superior court denied the petition, finding as a matter of law that

appellant had failed to make a prima facie showing that he was 

entitled to resentencing under section 1170.95. The court added 

that appellant’s claims based on Banks and Clark should be 

addressed in the context of a habeas petition.

DISCUSSION

The Superior Court May Deny a Section 1170.95 

Petition in the Prima Facie Stage of Review on the 

Ground that a Petitioner Convicted of Murder with a 

Felony-Murder Special-Circumstance Finding Is Not, 

as a Matter of Law, Eligible for Resentencing Under 

Section 1170.95

In order to obtain relief from his felony murder conviction 

under section 1170.95, a petitioner must make a prima facie 

showing that he “could not be convicted of first or second degree 

murder because of changes to Section 188 or 189” made by Senate 

Bill No. 1437. (§ 1170.95, subd. (a)(3), italics added; Nunez, 

supra, 57 Cal.App.5th at p. 90, rev.gr.; Allison, supra, 55 
6

Cal.App.5th at p. 457.) As the superior court determined here, 

appellant cannot, as a matter of law, make the requisite prima 

facie showing based on the jury’s felony-murder specialcircumstance findings in his case. (See Jones, supra, 56 

Cal.App.5th at p. 479, rev.gr.)

A. Given the jury’s special-circumstance findings, the 

superior court correctly determined that appellant could 

still be convicted under the amended statute.

By adding subdivision (e) to section 189, Senate Bill 

No. 1437 made the crime of felony murder subject to the same 

elements of proof required for a special-circumstance finding 

under section 190.2, subdivision (d).4 (People v. Superior Court 

(Ferraro) (2020) 51 Cal.App.5th 896, 907 [“ ‘the standard under 

section 189, subdivision (e)(3) for holding a defendant liable for 

felony murder is [now] the same as the standard for finding a 

special circumstance under section 190.2[, subdivision] (d), as the 

former provision expressly incorporates the latter’ ”]; In re Taylor

(2019) 34 Cal.App.5th 543, 561.) Specifically, to be convicted of 

first degree murder under section 189 as amended, a participant 

in one of the felonies enumerated in subdivision (a) must have 

4 Subdivision (d) of section 190.2 remains the same today 

as in 2000 when appellant was convicted: “[E]very 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 paragraph (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.”
7

been the actual killer, or a direct aider and abettor who acted 

with the intent to kill, or “a major participant in the underlying 

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

described in subdivision (d) of Section 190.2.” (§ 189, subd. (e).)

Here, appellant’s jury was instructed that if it found 

appellant was not the actual killer, it could not find the special 

circumstances true unless it was satisfied beyond a reasonable 

doubt that appellant, “with reckless indifference to human life 

and as a major participant,” aided and abetted the commission of 

the burglary and/or robbery which resulted in the victim’s death. 

(Italics added.) The jury was further instructed that “[a] 

defendant acts with reckless indifference to human life when that 

defendant knows or is aware that his acts involve a grave risk of 

death to an innocent human being.” The jury found the special 

circumstances true as to both underlying felonies beyond a 

reasonable doubt. Thus, if the jury determined appellant was not 

the actual killer or a direct aider and abettor with intent to kill, it

necessarily made the factual finding that appellant was a major 

participant in the underlying felonies who acted with reckless 

indifference to the victim’s life. Given this finding by the trier of 

fact, appellant remains subject to conviction for first degree 

murder notwithstanding Senate Bill No. 1437’s changes to 

section 189.

Because the jury’s special-circumstance finding shows as a 

matter of law that appellant could still be convicted of felony 

murder under section 189 as amended, the superior court 

correctly concluded that he cannot make a prima facie showing of 

eligibility for resentencing under section 1170.95 and properly 

denied relief. (Allison, supra, 55 Cal.App.5th at pp. 461–462 [“If 

the prior finding shows the petitioner meets the requirements for 
8

murder liability under amended sections 188 and 189, then it is 

not true that the petitioner could not be convicted of murder 

because of the changes to sections 188 and 189, and the petition 

must be denied”]; Nunez, supra, 57 Cal.App.5th at p. 95, rev.gr.)

B. The jury’s pre-Banks and Clark specialcircumstance findings⎯that he was a major participant in 

the burglary and robbery who acted with reckless 

indifference to human life⎯disqualify appellant from 

relief under section 1170.95 as a matter of law.

Appellant maintains that, standing alone, the jury’s preBanks and Clark special-circumstance finding is insufficient to 

disqualify him from relief under section 1170.95. He reasons that

Banks and Clark redefined “major participant” and “reckless 

indifference to human life.” The Legislature, which is presumed 

to be aware of existing laws and judicial decisions with a direct 

bearing on new legislation (Leider v. Lewis (2017) 2 Cal.5th 1121, 

1135), necessarily incorporated the Banks/Clark reconstruction of 

these phrases when it added subdivision (e)(3) to section 189.

Therefore, according to appellant, because these phrases carry a 

significantly narrower construction under current law, a jury’s 

pre-Banks and Clark special-circumstance finding may be one 

fact of many to consider at the order to show cause stage of an 

1170.95 petition, but it does not preclude a defendant from 

making a prima facie showing of eligibility for resentencing relief. 

We disagree. Banks and Clark did not create new law, but 

instead, “merely clarified the ‘major participant’ and ‘reckless 

indifference to human life’ principles that existed when 

defendant’s conviction became final.” (In re Miller (2017) 14 

Cal.App.5th 960, 978 (Miller); Allison, supra, 55 Cal.App.5th at 
9

p. 458; Nunez, supra, 57 Cal.App.5th at p. 92, rev.gr.; Jones, 

supra, 56 Cal.App.5th at p. 482, rev.gr.)

Following an examination of two United States Supreme 

Court cases (Enmund v. Florida (1982) 458 U.S. 782 [102 S.Ct. 

3368, 73 L.Ed.2d 1140]; Tison v. Arizona (1987) 481 U.S. 137 [107 

S.Ct. 1676, 95 L.Ed.2d 127]), Banks set forth a non-exclusive set 

of factors to aid the determination of whether an individual was a 

“major participant” in a crime.5 (Banks, supra, 61 Cal.4th at 

p. 803.) Our Supreme Court also explained that to determine 

whether the defendant acted with reckless indifference, courts 

must “look to whether a defendant has ‘ “knowingly engag[ed] in 

criminal activities known to carry a grave risk of death.” ’ ” 

(Banks, supra, 61 Cal.4th at p. 801.) Specifically, “[t]he 

defendant must be aware of and willingly involved in the violent 

manner in which the particular offense is committed, 

demonstrating reckless indifference to the significant risk of 

death his or her actions create.” (Ibid.) In Clark, the court put it 

this way: “ ‘reckless indifference’ . . . encompasses a willingness 

to kill (or to assist another in killing) to achieve a distinct aim, 

5 These factors include: the defendant’s role in planning

the criminal enterprise that led to one or more deaths; his or her 

role in supplying or using lethal weapons; the defendant’s 

awareness of the particular dangers posed by the nature of the 

crime, such as the weapons used or the past experience or 

conduct of the other participants; whether the defendant was 

present at the scene of the killing, in a position to facilitate or 

prevent the murder; whether the defendant’s own actions or 

inaction played a particular role in the death; and what he or she 

did after lethal force was used. (Banks, supra, 61 Cal.4th at 

p. 803.)
10

even if the defendant does not specifically desire that death as 

the outcome of his actions.” (Clark, supra, 63 Cal.4th at p. 617.)

To assist appellate review of a jury’s reckless indifference 

finding, Clark set out a series of considerations relevant to 

determining whether a defendant had acted with reckless 

indifference to human life. (Clark, supra, 63 Cal.4th at pp. 618–

622.) But “[j]ust as [the court] said of the factors concerning 

major participant status in Banks, ‘[n]o one of these 

considerations is necessary, nor is any one of them necessarily 

sufficient’ ” to establish whether a defendant was a major 

participant who acted with reckless indifference to human life. 

(Clark, at p. 618, quoting Banks, supra, 61 Cal.4th at p. 803.)

Moreover, not only did the Banks and Clark decisions 

herald no change in the law, they also did not fundamentally 

change the meaning of the phrases “major participant” and 

“reckless indifference to human life.” (Allison, supra, 55 

Cal.App.5th at p. 458; Nunez, supra, 57 Cal.App.5th at p. 92, 

rev.gr.; Jones, supra, 56 Cal.App.5th at p. 484, rev.gr.) Rather, 

the high court in those cases “simply stated what section 190.2, 

subdivision (d) has always meant.” (Miller, supra, 14 

Cal.App.5th at p. 979.) Indeed, our Supreme Court has not 

required any new jury instruction on the clarifications, and no 

mandatory language or material changes have been made to the 

CALJIC or CALCRIM special-circumstance instructions since 

Banks and Clark were decided. (Compare CALJIC No. 8.80.1 

(1996 rev.) (6th ed. 1996) with CALJIC No. 8.80.1 (Fall 2015 ed.); 

see also Nunez, at p. 92, rev.gr.; Gomez, supra, 52 Cal.5th at 

p. 14, fn. 6, rev.gr. [CALCRIM No. 703 before Banks and Clark]; 

CALCRIM No. 703 (2020 ed.).) Rather, while both CALJIC No. 

8.80.1 and CALCRIM No. 703 now include optional language 
11

drawn from Banks and Clark regarding the factors a jury may 

consider, neither Banks nor Clark held that the trial court has a 

sua sponte duty to instruct on those factors. (People v. Price

(2017) 8 Cal.App.5th 409, 450–451 (Price) [jury instructions that 

omit the Banks and Clark factors are not defective]; Allison, at 

pp. 458–459; Bench Notes to CALCRIM No. 703 (2020 ed.) 

p. 452.)

In short, as we observed in Nunez, “the felony-murder 

special-circumstance instructions given post-Banks and Clark do 

not necessarily differ at all from pre-Banks and Clark felonymurder special-circumstance instructions⎯the factors, issues, 

and questions the post- and pre-Banks and Clark juries consider 

to make the [major participant/reckless indifference] finding are 

exactly the same. Accordingly, whether a jury made a post- or 

pre-Banks and Clark [major participant/reckless indifference] 

finding, that finding establishes as a matter of law the 

defendant’s ineligibility for relief under section 1170.95 because 

he was found either to have participated in the specified felony 

with the intent to kill, or he was a major participant who acted 

with reckless indifference to human life and could still be 

convicted of murder notwithstanding the changes to section 

189.”6 (Nunez, supra, 57 Cal.App.5th at p. 93, fn. omitted,

rev.gr.)

6 In fact, “[t]he only necessary difference between a preBanks and Clark felony-murder special-circumstance finding and 

one returned after Banks and Clark arises at the level of 

appellate review: If the finding was challenged on direct appeal 

before Banks and Clark, appellate review of the sufficiency of the 

evidence to support the finding was not informed by Banks and 
12

In this regard, we reiterate our disagreement with the 

decisions in People v. Torres (2020) 46 Cal.App.5th 1168, review 

granted July 7, 2020, S262011 (Torres), People v. Smith (2020) 49 

Cal.App.5th 85, review granted July 22, 2020, S262835 (Smith), 

and People v. York (2020) 54 Cal.App.5th 250, review granted 

November 18, 2020, S264954 (York) (see also People v. Harris

(2021) 60 Cal.App.5th 939, 958–959, review granted Apr. 28, 

2021, S267802), because all of these cases misinterpret the scope 

and effect of Banks and Clark. (Nunez, supra, 57 Cal.App.5th at 

p. 93, rev.gr.; Jones, supra, 56 Cal.App.5th at p. 484, rev.gr.; 

Allison, supra, 55 Cal.App.5th at pp. 458–459.)

According to these courts, because “the factual issues that 

the jury was asked to resolve [before the Banks and Clark

decisions] are not the same factual issues our Supreme Court has 

since identified as controlling” (Smith, supra, 49 Cal.App. 5th at 

p. 93, rev.gr.), such findings should not be treated “as if they 

resolved key disputed facts” (ibid.; Torres, supra, 46 Cal.App.5th 

at p. 1180, rev.gr.). York went a step further, holding that for 

purposes of section 1170.95, a pre-Banks and Clark jury finding 

that the defendant acted with reckless indifference to human life 

as a major participant should be treated as if that finding simply 

did not exist. (York, supra, 54 Cal.App.5th at p. 258, rev.gr.)

However, contrary to these decisions’ holdings, we find “no 

basis to conclude as a general matter that a pre-Banks and Clark

jury was instructed differently than a post-Banks and Clark jury, 

Clark.” (Nunez, supra, 57 Cal.App.5th at p. 93, fn. 7, rev.gr.; 

Price, supra, 8 Cal.App.5th at pp. 450–451 [Banks and Clark

decisions govern judicial review for sufficiency of the evidence 

rather than the facts or elements a jury was required to find]; 

Jones, supra, 56 Cal.App.5th at p. 483, rev.gr.)
13

or resolved different factual issues, answered different questions, 

or applied different standards. The mandatory instructions did 

not change, and the pre-Banks and Clark jury necessarily 

resolved the same factual issues beyond a reasonable doubt that 

a post-Banks and Clark jury would necessarily resolve beyond a 

reasonable doubt.” (Nunez, supra, 57 Cal.App.5th at p. 94, 

rev.gr.; Jones, supra, 56 Cal.App.5th at p. 484, rev.gr.; Allison, 

supra, 55 Cal.App.5th at pp. 458–459.)

We therefore reject the approach taken by the courts in 

Torres, Smith, and York, and decline to proceed as though the 

jury’s special-circumstance findings simply did not exist. Indeed, 

as we noted in Nunez, “jury findings in a final judgment are 

generally considered to be valid and binding unless and until 

they are overturned by collateral attack, regardless of whether 

they were subjected to appellate review. Nothing in Banks or 

Clark supports the automatic invalidation or disregard of such 

findings by a properly instructed jury.” (Nunez, supra, 57 

Cal.App.5th at p. 94, rev.gr.)

C. The sole avenue for challenging the evidentiary 

support for the jury’s finding that appellant was a major 

participant in the burglary and robbery who acted with 

reckless indifference to human life lies in a habeas 

petition.

Appellant insists that the jury’s pre-Banks and Clark

special-circumstance findings are irrelevant to the trial court’s 

determination of whether he has made a prima facie showing of 

entitlement to relief under section 1170.95. We disagree and hold 

that the exclusive procedure for challenging a specialcircumstance felony-murder conviction under Banks and Clark is 

to separately file a petition for writ of habeas corpus in which the 
14

defendant properly bears the burden of proof. (See Nunez, supra, 

57 Cal.App.5th at pp. 95–96, rev.gr.; Jones, supra, 56 Cal.App.5th 

at p. 485, rev.gr.; Allison, supra, 55 Cal.App.5th at p. 459, fn. 9; 

Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr. [“If [appellant] 

is entitled to relief based on Banks and Clark, the avenue for 

such relief is not section 1170.95, but a petition for writ of habeas 

corpus”]; Murillo, supra, 54 Cal.App.5th at p. 168, rev.gr.)

Senate Bill No. 1437 contains no indication in its text or 

history that the Legislature intended to permit defendants to 

challenge their murder convictions by attacking prior findings of 

fact. Indeed, the Legislature made plain that its purpose in 

enacting section 1170.95 was to give defendants the benefit of the 

amendments to sections 188 and 189 in the absence of a factual 

basis for a murder conviction in light of the statutory revisions. 

As the court in Allison observed, “subdivision (a)(3) of section 

1170.95 says nothing about erroneous prior findings or the 

possibility of proving contrary facts if given a second chance. 

Rather, it requires that the petitioner could not be convicted of 

murder because of the changes to sections 188 and 189, not 

because a prior fact finder got the facts wrong.” (Allison, supra, 

55 Cal.App.5th at p. 461.)

Accordingly, as we held in Nunez, the sole avenue of relief 

for defendants whose pre-Banks and Clark special-circumstance 

findings cannot withstand post-Banks and Clark scrutiny is by 

way of a petition for habeas corpus in which the petitioner would 

properly bear the burden of proof. (Nunez, supra, 57 Cal.App.5th 

at pp. 95–96; Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr. 

[“If [appellant] is entitled to relief based on Banks and Clark, the 

avenue for such relief is not section 1170.95, but a petition for 
15

writ of habeas corpus”]; Murillo, supra, 54 Cal.App.5th at p. 168, 

rev.gr.)

In a habeas corpus proceeding to collaterally attack a 

judgment of conviction by challenging a pre-Banks and Clark

special-circumstance finding, the petitioner bears the burden of 

alleging and proving, by a preponderance of the evidence, the 

facts supporting the claim for relief, and demonstrating that the 

finding must be vacated for insufficient evidence. (In re Miranda

(2008) 43 Cal.4th 541, 575; People v. Duvall (1995) 9 Cal.4th 464, 

474.) “[A] postconviction challenge to a special circumstance 

finding under Banks and Clark presents a legal question for the 

reviewing court. [Citation.] The challenge ‘does not require 

resolution of disputed facts; the facts are a given’—the appellate 

court simply determines if they are sufficient to support the 

special circumstance finding under the multifactor guidance 

articulated in Banks and Clark.” (Jones, supra, 56 Cal.App.5th 

at p. 483, rev.gr.) The underlying judgment is presumed valid (In 

re Bacigalupo (2012) 55 Cal.4th 312, 332), and the standard of 

review “ ‘is whether, when evidence that is reasonable, credible, 

and of solid value is viewed “in the light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential elements of the allegation beyond a reasonable doubt.”

. . . [The court presumes], in support of the judgment, the 

existence of every fact the trier of fact could reasonably deduce 

from the evidence, whether direct or circumstantial.’ ” (In re 

Bennett (2018) 26 Cal.App.5th 1002, 1018; Jones, at p. 483.)

In Gomez, the court recognized that permitting a defendant 

with a pre-Banks and Clark felony-murder conviction to 

challenge the special-circumstance finding under section 1170.95 

would unfairly shift the burden of proof normally applicable to 
16

Banks and Clark habeas claims from the petitioner to the People. 

As the court explained: “In an evidentiary hearing on a section 

1170.95 petition to determine whether there is sufficient evidence 

to support her murder conviction on a felony-murder or natural 

and probable consequences theory, the People would bear the 

burden of proof beyond a reasonable doubt. (§ 1170.95, subd. 

(d)(3).) To make its true findings on the special circumstance 

allegations against [the defendant], the jury was required to find 

that [the defendant] either acted with the intent to kill, or that 

she was a major participant who acted with reckless indifference 

to human life in the robbery and kidnapping of [the victim]. The 

People should not be required to prove beyond a reasonable 

doubt, a second time, that [the defendant] satisfied those 

requirements for the special circumstance findings. Considering 

the different burdens of proof in a habeas corpus proceeding and 

a proceeding under section 1170.95, we conclude that a petition 

for writ of habeas corpus is the appropriate vehicle for [the 

defendant] to challenge her special circumstance findings. If [the 

defendant] were to succeed in challenging the special 

circumstance findings in a habeas corpus proceeding, she would 

then be in a position to successfully petition under section 

1170.95 to vacate her murder conviction.” (Gomez, supra, 52 

Cal.App.5th at p. 17, rev.gr.; Nunez, supra, 57 Cal.App.5th at 

p. 96, rev.gr.; see also Galvan, supra, 52 Cal.App.5th at pp. 1142–

1143, rev.gr. [expressing concern over the disparate treatment of 

defendants based solely on the dates of their convictions].)

This is precisely what happened in People v. Ramirez

(2019) 41 Cal.App.5th 923 (Ramirez). In 2003 Ramirez had been 

convicted of first degree murder with a special-circumstance 

finding under section 190.2, subdivision (a)(17) that he was an 
17

aider and abettor and major participant in a robbery who had 

acted with reckless indifference to human life. He was sentenced 

to life without the possibility of parole, and in 2017, Ramirez 

successfully challenged the evidentiary support for the major 

participant and reckless indifference findings under Banks and 

Clark in a habeas petition filed in this court. (Id. at pp. 926–

927.) We struck the special-circumstance finding, and on 

remand, Ramirez was sentenced to a term of 25 years to life for 

the murder conviction. (Id. at p. 927.)

Following the enactment of Senate Bill No. 1437, Ramirez 

filed a petition under section 1170.95 to modify his first degree 

murder sentence. The trial court denied the petition on the 

ground that the affirming opinion in the direct appeal showed 

Ramirez to have acted with reckless indifference to human life as 

a major participant to the underlying felony. (Ramirez, supra, 41 

Cal.App.5th at p. 928.) On appeal from the denial of the 1170.95 

petition, we reversed on the ground that in light of our prior 

habeas determination, “[i]t is beyond dispute that this court 

found that the defendant was not shown to have been a major 

participant in the underlying felony, or to have acted with 

reckless indifference to human life. [Citation.] Under these 

circumstances, the trial court was required by section 1170.95, 

subdivision (d)(2) to vacate the conviction and resentence 

defendant on the remaining counts.”7 (Id. at p. 933.)

7 Subdivision (d)(2) of section 1170.95 provides in relevant 

part: “If there was a prior finding by a court or jury that the 

petitioner did not act with reckless indifference to human life or 

was not a major participant in the felony, the court shall vacate 

the petitioner’s conviction and resentence the petitioner.”
18

Here, appellant pursued his habeas claim under Banks and 

Clark in the trial court, but unlike the defendant in Ramirez, he 

lost. Indeed, in denying the habeas petition, the court undertook 

a rigorous analysis of the facts of the offenses in light of the 

Banks and Clark factors and found appellant’s claim wanting. To 

now permit appellant to maintain another evidentiary challenge 

to the special-circumstance findings in the context of section 

1170.95 after his unsuccessful habeas petition on the same 

grounds would not only do violence to the legislative focus in 

enacting Senate Bill No. 1437, but it would unjustifiably relieve 

appellant of the burden of proving his claim under Banks and 

Clark.

DISPOSITION

The postjudgment order is affirmed.

NOT TO BE PUBLISHED.

LUI, P. J.

I concur:

CHAVEZ, J.
People v. Flores, B308289

ASHMANN-GERST, J., Concurring in the judgment.

Pursuant to my concurring opinion in People v. Nunez

(2020) 57 Cal.App.5th 78, 97–99, review granted January 13, 

2021, S265918, I only join in Parts A and B of this opinion.

__________________________, J.

ASHMANN-GERST