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Filed 2/9/22 P. v. Nicholas CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

JOSEPH ELDRIDGE NICHOLAS,

Defendant and Appellant.

C091668

(Super. Ct. No. 97F03179)

In 1998, a jury found defendant Joseph Eldridge Nicholas guilty on two counts of 

first degree murder and attempted robbery. The jury found true the special circumstances

that the murder was committed during the commission or attempted commission of a 

robbery (Pen. Code, § 190.2, subd. (a)(17)(A))

1 and defendant committed multiple 

murders (§ 190.2, subd. (a)(3)). The jury also found true the allegation that defendant

1

 Undesignated statutory references are to the Penal Code.
2

used a deadly weapon in the commission of the offenses. We affirmed that judgment in

an unpublished opinion. (People v. Nicholas et al. (Sept. 21, 2000, C031099) [nonpub. 

opn.] (Nicholas).)

Defendant appeals from a postjudgment order denying his petition for 

resentencing on his murder convictions under section 1170.95. He argues the trial court 

erred by looking beyond the face of his petition without issuing an order to show cause, 

and determining he was ineligible for resentencing under this statute based on the jury’s 

felony-murder special circumstance finding. We disagree and affirm.

I. BACKGROUND

On October 2, 1998, a jury found defendant and his co-defendant guilty on two 

counts of first degree murder and one count of attempted first degree robbery. (Nicholas, 

supra, C031099.) The jury also found true special allegations that the murders were 

committed during the commission of the attempted robbery and multiple murders were 

committed, as well as allegations that defendant used a deadly weapon to commit the 

offenses. (Ibid.) The trial court sentenced defendant to consecutive life terms without 

the possibility of parole, plus 18 years. On appeal, we struck a five-year enhancement 

and affirmed the judgment as modified. (Ibid.)

On March 25, 2019, defendant filed a petition for resentencing of his murder 

conviction pursuant to section 1170.95. The court appointed counsel, the People 

responded to the petition, and defendant filed a reply. After briefing, the court denied the 

petition finding defendant was ineligible for relief under section 1170.95 based on the 

jury’s special circumstance finding and the evidence supporting the findings of 

premeditation and deliberation. Thus, no order to show cause issued. 

II. DISCUSSION

A. Senate Bill No. 1437

Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January 

1, 2019, was enacted “to amend the felony murder rule and the natural and probable 
3

consequences doctrine, as it relates to murder, 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 legislation accomplished this by 

amending sections 188 and 189 and adding section 1170.95 to the Penal Code.

Section 188, which defines malice, now provides in part: “Except as stated in

subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime 

shall act with malice aforethought. Malice shall not be imputed to a person based solely 

on his or her participation in a crime.” (§ 188, subd. (a)(3).) Section 189, subdivision (e) 

now limits the circumstances under which a person may be convicted of felony murder: 

“A participant in the perpetration or attempted perpetration of a felony listed in 

subdivision (a) [(defining first degree murder)] in which a death occurs is liable for 

murder only if one of the following is proven: [¶] (1) The person was the actual killer. 

[¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, 

counseled, commanded, induced, solicited, requested, or assisted the actual killer in the 

commission of murder in the first degree. [¶] (3) The person 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.”

Senate Bill No. 1437 also added section 1170.95, which allows those “convicted 

of felony murder or murder under a natural and probable consequences theory [to] file a 

petition with the court that sentenced the petitioner to have the petitioner’s murder 

conviction vacated and to be resentenced on any remaining counts 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. [¶] (2) The 

petitioner was convicted of first degree or second degree murder following a trial . . . . 

[¶] (3) The petitioner could not be convicted of first or second degree murder because of 
4

changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, former 

subd. (a); see Stats. 2018, ch. 1015, § 4.)

Once a complete petition is filed, “[t]he court shall review the petition and 

determine if the petitioner has made a prima facie showing that the petitioner falls within 

the provisions of this section. If the petitioner has requested counsel, the court shall 

appoint counsel to represent the petitioner. The prosecutor shall file and serve a response 

within 60 days of service of the petition and the petitioner may file and serve a reply 

within 30 days after the prosecutor response is served. . . . 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.” (§ 1170.95, former subd. (c); see Stats. ch. 1015, § 4.)

B. Record of Conviction

Defendant contends the trial court erred by looking beyond the petition to find he 

failed to present a prima facie case for relief under section 1170.95 without issuing an 

order to show cause. We disagree.

Our Supreme Court has explained that section 1170.95, subdivision (c) requires 

“only a single prima facie showing.” (People v. Lewis (2021) 11 Cal.5th 952, 962.) A 

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, 

[but] 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 allegations were proved. If so, the court 

must issue an order to show cause.” ’ [Citations.] ‘[A] court should not reject the 

petitioner’s factual allegations on credibility grounds without first conducting an 

evidentiary hearing.’ [Citations.] ‘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.” ’ ” (Id. at p. 
5

971.) While appellate opinions “are generally considered to be part of the record of 

conviction. [Citation.] . . . the probative value of an appellate opinion is case specific, 

and ‘it is certainly correct that an appellate opinion might not supply all answers.’ ” (Id.

at p. 972.) Thus, “[i]n 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.’ ” (Ibid.)

Here, there was no error. Defendant filed his petition, the court appointed counsel, 

the People opposed the petition, and defendant (through appointed counsel) filed a reply. 

The court then reviewed the record of conviction and based on the jury’s verdict, which 

was upheld on appeal, the court found defendant failed to establish a prima facie case for 

relief under section 1170.95. Our Supreme Court has made it clear this is the appropriate 

procedure under section 1170.95. (Lewis, supra, 11 Cal.5th at p. 971.)

C. Special Circumstances

Defendant also argues his felony-murder special circumstance finding does not 

preclude him from being resentenced pursuant to section 1170.95 because it was made 

before our Supreme Court clarified the meaning of “major participant” and “reckless 

indifference to human life” in the special circumstance statute in People v. Banks (2015)

61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. (See In re Scoggins (2020) 

9 Cal.5th 667, 674 [“Banks and Clark clarified the meaning of the special circumstances 

statute”].) We disagree.2

Banks and Clark both predate Senate Bill No. 1437. “The requirements for the 

felony-murder special circumstance did not change as a part of Senate Bill No. 1437, and 

2 Defendant also challenges the trial court’s finding that his conviction “ ‘still holds up’ 

under current law, because ‘the evidence presented at trial supports [the] murder 

convictions based on premeditation and deliberation.’ ” Because we conclude the jury’s 

special circumstances finding is sufficient to support the trial court’s order, we need not 

address this claim on appeal.
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are identical to the new requirements for felony murder following the enactment of 

Senate Bill No. 1437. In both instances, the defendant must have either actually killed 

the victim [citations]; acted with the intent to kill in aiding, abetting, counseling, 

commanding, inducing, soliciting, requesting, or assisting in the killing [citations]; or 

been a major participant in the underlying felony and acted with reckless indifference to 

human life [citations]. By finding a special circumstance allegation true, the jury makes 

precisely the same finding it must make in order to convict a defendant of felony murder 

under the new law. Because a defendant with a felony-murder special circumstance 

could still be convicted of murder, he is ineligible as a matter of law to have his murder 

conviction vacated.” (People v. Galvan (2020) 52 Cal.App.5th 1134, 1140-1141, review 

granted Oct. 14, 2020, S264284 (Galvan).) We agree with the Galvan line of decisions 

that an intact felony-murder special circumstance finding, even one from before Banks

and Clark, precludes relief under section 1170.95. (See People v. Nunez (2020) 

57 Cal.App.5th 78, 83, review granted Jan. 13, 2021, S265918; People v. Jones (2020) 

56 Cal.App.5th 474, 482, review granted Jan. 27, 2021, S265854; People v. Allison

(2020) 55 Cal.App.5th 449, 457; People v. Murillo (2020) 54 Cal.App.5th 160, 167-169, 

review granted Nov. 18, 2020, S264978; Galvan, supra, at pp. 1142-1143; People v. 

Gomez (2020) 52 Cal.App.5th 1, 14-17, review granted Oct. 14, 2020, S264033.) 

“Nothing in the language of section 1170.95 suggests it was intended to provide redress 

for allegedly erroneous prior factfinding. . . . The purpose of section 1170.95 is to give 

defendants the benefit of amended sections 188 and 189 with respect to issues not 

previously determined, not to provide a do-over on factual disputes that have already 

been resolved.” (Allison, supra, at p. 461.) The proper avenue for relief based on Banks

and Clark is a petition for writ of habeas corpus. (See Galvan, supra, at p. 1142.) 
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Defendant cannot challenge the robbery-murder special circumstance finding through 

section 1170.95.3

We recognize some appellate courts have come to contrary conclusions and the 

issue is currently pending in our Supreme Court. (See People v. Secrease (2021) 

63 Cal.App.5th 231, 259, review granted June 30, 2021, S268862; People v. Harris

(2021) 60 Cal.App.5th 939, 956, review granted Apr. 28, 2021, S267802; People v. York

(2020) 54 Cal.App.5th 250, 258-260, review granted Nov. 18, 2020, S264954; People v. 

Smith (2020) 49 Cal.App.5th 85, 93-94, review granted July 22, 2020, S262835; People 

v. Law (2020) 48 Cal.App.5th 811, 825, review granted July 8, 2020, S262490; People v. 

Torres (2020) 46 Cal.App.5th 1168, 1180, review granted June 24, 2020, S262011.) We, 

however, find the Galvan line of cases more persuasive.

3 We reviewed the parties’ supplemental briefs addressing recently enacted Senate Bill 

No. 775 and conclude the bill has no impact on this appeal. 
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III. DISPOSITION

The order denying the petition is affirmed.

/S/

 

RENNER, J.

We concur:

/S/

 

DUARTE, Acting P. J.

/S/

 

KRAUSE, J.