Filed 4/30/21 P. v. Reese CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 

8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

CLARENCE ERVIN REESE,

Defendant and Appellant.

B301473

(Los Angeles County

Super. Ct. No. BA230274)

APPEAL from an order of the Superior Court of Los 

Angeles County, George G. Lomeli, Judge. Affirmed.

Nancy J. King, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Kristen J. Inberg and Yun K. Lee, Deputy 

Attorneys General, for Plaintiff and Respondent.

________________________
2

In 2004, a jury convicted defendant and appellant Clarence 

Ervin Reese of first degree felony murder, attempted carjacking, 

and burglary, and found true the special circumstance allegations

that the murder was committed while Reese was engaged in the 

commission of attempted carjacking and burglary. This Division 

affirmed Reese’s judgment in 2007. In 2019, after passage of 

Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), 

Reese petitioned for vacation of his murder conviction and 

resentencing pursuant to Penal Code section 1170.95.1 The trial 

court denied the petition, concluding that, in light of this 

Division’s 2007 opinion, Reese was a major participant in the 

carjacking and burglary who acted with reckless indifference to 

human life, and therefore was ineligible for relief. As an 

independent ground, the court ruled that Senate Bill 1437—

which enacted section 1170.95—was unconstitutional. Because 

the existence of the jury’s special circumstance finding precludes 

relief as a matter of law, we affirm the court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

1. Reese’s felony-murder conviction2

In January 2002, Vuthipong Sanguansukdikosol lived in a 

Los Angeles apartment building with a gated garage. On the 

afternoon of January 30, 2002, Sanguansukdikosol opened the 

1 All further undesignated statutory references are to the 

Penal Code.

2 We derive the factual and procedural background in part 

from this Division’s prior opinion in this matter, of which we have 

taken judicial notice at the People’s request. (Evid. Code, §§ 451, 

452, 459.) In light of our disposition of this matter, we only give a 

brief summary of the evidence regarding the murder.
3

gate and drove into the garage to drop off his two young sons. 

Sixteen-year-old Reese and his accomplice, Juan Saucedo, also 

entered the garage. Once the victim’s sons left the garage in an 

elevator, Saucedo and Reese went to opposite sides of 

Sanguansukdikosol’s car and attempted to carjack him. One of 

them shot and killed Sanguansukdikosol during the unsuccessful 

attempt to take the car. The youths then fled. Saucedo 

convinced a passing motorist to give him and Reese a ride for a 

short distance away from the scene. While in the car, Reese held 

an object, wrapped in a sweater, in his hand. 

According to Reese’s subsequent statements to a police

detective, he and Saucedo, both members of the Culver City gang, 

had planned to steal a vehicle. Reese had a screwdriver for that 

purpose. Once in the apartment building’s garage, they 

considered stealing a van, but it had an alarm. Reese wanted to 

leave, but Saucedo told him they would take Sanguansukdikosol’s 

vehicle. Saucedo displayed a gun and demanded that 

Sanguansukdikosol give him the car. When Sanguansukdikosol 

began honking the horn and yelling for police, Saucedo fatally 

shot him. Reese gave conflicting accounts to the detective 

regarding when he first learned Saucedo had a gun.

The People prosecuted Reese for murder on a felonymurder theory. The jury found him guilty of first degree murder 

(§ 187, subd. (a)), attempted carjacking (§§ 664, 215, subd. (a)), 

and first degree burglary (§ 459). It found true special 

circumstance allegations that the murder was committed while 

Reese was engaged in the commission of attempted carjacking 

and burglary. (§ 190.2, subd. (a)(17)(L), (G).)3

3 The jury also found true allegations that a principal 

personally and intentionally used and discharged a firearm 
4

The trial court exercised its discretion pursuant to section 

190.5, subdivision (b), to sentence Reese on count 1 to 25 years to 

life in prison rather than life without parole (LWOP). It reasoned 

that, although there was “significant and substantial evidence” to 

support the verdicts, mitigating factors existed. Reese had 

turned 16 only 16 days before the offenses; he was not the actual 

shooter; he was not “the architect of this plan and plot”; and his 

criminal history was nonviolent.4

In 2007, a different Division of this court affirmed Reese’s 

judgment. (People v. Reese (March 2, 2007, B186147) [nonpub. 

opn.].) Among other things, the court concluded that sufficient 

evidence supported the first-degree murder verdict and special 

circumstance findings. The California Supreme Court denied 

review.

during the offenses, proximately causing the victim’s death. 

(§ 12022.53, subds. (b), (c), (d), (e)(1).) However, section 12022.53 

enhancements apply to a principal only if a gang enhancement is 

found true. (§ 12022.53, subd. (e)(1)(A).) Because the People 

dismissed gang enhancement allegations before the jury rendered 

its verdicts, the court vacated the jury’s findings on the section 

12022.53 allegations.

4 The sentences on the other counts were stayed pursuant to 

section 654. 
5

2. Section 1170.95 petition 

In March 2019, after passage of Senate Bill 1437, Reese 

filed a handwritten petition for vacation of his murder conviction 

and resentencing. In the petition and supporting documents, 

Reese asserted that he had been convicted under a felony-murder 

theory, was not the actual killer, did not have the intent to kill,

was not a major participant in the crimes who acted with reckless 

indifference to human life, and could not now be convicted of 

murder because of amendments effectuated by Senate Bill 1437. 

He also pointed out that he was only 16 years old at the time of 

the crimes.

The trial court appointed counsel for Reese. Counsel 

thereafter filed two briefs in support of the petition. In the first, 

counsel argued Senate Bill 1437 was constitutional. In the 

second, counsel argued that Reese was eligible for section 1170.95 

relief given that he was tried on a felony-murder theory, was not 

the actual shooter, did not have the intent to kill, and was not a 

major participant in the underlying offenses who acted with 

reckless indifference to human life, as those terms were 

construed in People v. Banks (2015) 61 Cal.4th 788 (Banks) and 

People v. Clark (2016) 63 Cal.4th 522 (Clark).

On September 23, 2019, the People filed an opposition to 

the petition. Therein, they argued that section 1170.95 was “both 

facially inapplicable to this case and unconstitutional.” As to the 

former point, the People argued that because the jury found 

Reese was a major participant in the underlying offenses who 

acted with reckless indifference to human life, and the evidence

was sufficient on this point, the murder conviction remained 

valid even after passage of Senate Bill 1437. In support, the 
6

People filed excerpts from the trial transcripts and the jury 

instructions.

On the same date the People filed their opposition,5the 

trial court heard argument and denied the petition. The court 

explained that it had reviewed the record and this Division’s 2007 

opinion in the matter. Based on the “overall evidence” and the 

analysis in this Division’s 2007 opinion, the court found there 

was substantial evidence Reese was a major participant who 

acted with reckless indifference, and was therefore ineligible for 

resentencing under section 1170.95. During argument, the court 

opined that the case was “very close.” Although the Reporter’s 

Transcript is somewhat garbled, it appears the court weighed 

evidence that Reese was armed with a screwdriver and saw the 

gun beforehand, but did not know Saucedo would use the gun.

Nonetheless, the court explained it “went with the language of 

the Court of Appeal decision.” Defense counsel argued that the 

circumstances underlying the trial court’s decision to sentence 

Reese to 25 years to life, rather than LWOP, indicated that Reese 

was not a major participant who acted with reckless indifference 

under current law. The court responded that it was aware of the 

trial court’s ruling, but “I did work off the Court of Appeal 

decision and their language in there.” As a second and 

independent ground for its ruling, the court found that Senate 

Bill 1437 was unconstitutional.

Reese timely appealed.

5 Although the court ruled before the defense had an 

opportunity to reply to the People’s opposition, it does not appear 

from the record that defense counsel requested such an 

opportunity. 
7

DISCUSSION

1. Senate Bill 1437

Senate Bill 1437, which took effect on January 1, 2019,

limited accomplice liability under the felony-murder rule and 

eliminated the natural and probable consequences doctrine as it 

relates to murder, to ensure that a person’s sentence is 

commensurate with his or her individual criminal culpability. 

(People v. Gentile (2020) 10 Cal.5th 830, 842–843; People v. 

Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review 

granted March 18, 2020, S260493; People v. Munoz (2019) 39 

Cal.App.5th 738, 749–750, 763, review granted Nov. 26, 2019, 

S258234.) Prior to Senate Bill 1437’s enactment, under the 

felony-murder rule “a defendant who intended to commit a 

specified felony could be convicted of murder for a killing during 

the felony, or attempted felony, without further examination of 

his or her mental state.” (People v. Lamoureux (2019) 42

Cal.App.5th 241, 247–248; People v. Powell (2018) 5 Cal.5th 921,

942.) “ ‘ “The felony-murder rule impute[d] the requisite malice 

for a murder conviction to those who commit[ted] a homicide 

during the perpetration of a felony inherently dangerous to 

human life.” ’ ” (Lamoureux, at p. 248.) 

Senate Bill 1437 amended the felony-murder rule by 

adding section 189, subdivision (e), which provides that a 

participant in the perpetration of qualifying felonies is liable for 

felony murder only if the person: (1) was the actual killer; (2) was 

not the actual killer but, with the intent to kill, acted as a direct 

aider and abettor; or (3) the person was a major participant in 

the underlying felony and acted with reckless indifference to 

human life, as described in section 190.2, subdivision (d). (People 

v. Gentile, supra, 10 Cal.5th at p. 842.) 
8

Senate Bill 1437 also added section 1170.95, which created 

a procedure whereby persons convicted of murder under a nowinvalid felony-murder or natural and probable consequences 

theory may petition for vacation of their convictions and 

resentencing. A defendant is eligible for relief under section 

1170.95 if he meets three conditions: he (1) must have been 

charged with murder by means of a charging document that 

allowed the prosecution to proceed under a theory of felony 

murder or murder under the natural and probable consequences 

doctrine, (2) must have been convicted of first or second degree 

murder, and (3) could no longer be convicted of first or second 

degree murder due to changes to sections 188 and 189 effectuated 

by Senate Bill 1437. (§ 1170.95, subd. (a).)

Evaluation of a section 1170.95 petition requires a multistep process: an initial review to determine the petition’s facial

sufficiency; a prebriefing, “ ‘first prima facie review’ ” to

preliminarily determine whether the petitioner is statutorily

eligible for relief as a matter of law; and a second, postbriefing

prima facie review to determine whether the petitioner has made

a prima facie case that he or she is entitled to relief. (People v.

Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington), review

granted Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th

at pp. 327–330, rev.gr.)

When conducting the first prima facie review, the court

must determine, based upon its review of readily ascertainable

information in the record of conviction and the court file, whether

the petitioner is statutorily eligible for relief as a matter of law,

i.e., whether he or she was convicted of a qualifying crime,

pursuant to the natural and probable consequences doctrine or a

felony-murder theory. (Tarkington, supra, 49 Cal.App.5th at
9

pp. at pp. 897–898, rev.gr.; Verdugo, supra, 44 Cal.App.5th at

pp. 329–330, rev.gr.) If it is clear from the record of conviction

that the petitioner cannot establish eligibility as a matter of law,

the trial court may summarily deny the petition without

appointing counsel. (Tarkington, at pp. 898, 900–902; People v.

Torres (2020) 46 Cal.App.5th 1168, 1173 (Torres), review granted

June 24, 2020, S262011; Verdugo, at p. 332; People v.

Lewis (2020) 43 Cal.App.5th 1128, 1139–1140, review granted

Mar. 18, 2020, S260598.)

If, however, the petitioner’s ineligibility is not established

as a matter of law, the court must appoint counsel and permit

briefing to determine whether the petitioner has made a prima

facie showing he or she is entitled to relief. (Verdugo, supra, 44

Cal.App.5th at p. 330, rev.gr.; Tarkington, supra, 49 Cal.App.5th

at p. 898, rev.gr.) If the petitioner makes such a showing, the

court must issue an order to show cause and conduct a hearing to

determine whether to vacate the murder conviction and

resentence the petitioner on any remaining counts. (§ 1170.95,

subds. (c), (d); People v. Nguyen (2020) 53 Cal.App.5th 1154,

1166.) At that hearing, the prosecution has the burden to prove, 

beyond a reasonable doubt, that the defendant is ineligible for 

resentencing. (§ 1170.95, subd. (d)(3); People v. Rodriguez (2020) 

58 Cal.App.5th 227, 243–244, review granted March 10, 2021, 

S266652; People v. Lopez (2020) 56 Cal.App.5th 936, 951, review 

granted Feb. 10, 2021, S265974.)
10

2. Senate Bill 1437 is constitutional

The parties agree, as do we, that to the extent the court

denied the petition on the ground Senate Bill 1437 is

unconstitutional, it erred. Appellate courts have uniformly

rejected challenges to Senate Bill 1437’s constitutionality. (See,

e.g., People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270,

275, 286; People v. Lamoureux, supra, 42 Cal.App.5th at pp. 246,

251–264.) As there is no dispute on this point, we do not further 

address the issue. 

3. The petition was properly denied because Reese is 

ineligible for relief as a matter of law

Reese contends that the court erred by basing its denial on 

this Division’s 2007 opinion, which, in his view, did not establish 

his ineligibility as a matter of law. Instead, he argues, a court 

cannot weigh the evidence to determine whether a petitioner was 

a major participant who acted with reckless indifference without 

issuing an OSC and holding an evidentiary hearing pursuant to 

section 1170.95, subdivision (d)(3). In his view, the jury’s true 

findings on the special circumstance allegations do not preclude 

relief because they predated Banks and Clark and, applying the 

factors set forth in those authorities, the evidence failed to prove 

he was a major participant who acted with reckless indifference. 

The People, on the other hand, argue that the special 

circumstance findings preclude relief as a matter of law, despite 

the fact they predated Banks and Clark. Further, they argue, 

even if a pre-Banks/Clark special circumstance is not preclusive 

as a matter of law, the trial court properly conducted the “purely 

legal analysis” of whether the evidence showed Reese was a 

major participant who acted with reckless indifference. We agree 

with the People’s former argument.
11

To the extent the trial court conducted its own evaluation 

of the evidence to determine that Reese was a major participant 

who acted with reckless indifference, such analysis was 

premature. A court may not evaluate the facts of the crime and 

weigh the evidence until it conducts a hearing pursuant to 

section 1170.95, subdivision (d)(3). (See People v. Harris (2021) 

60 Cal.App.5th 939, 958, review granted April 28, 2021, S267802

[when determining whether petitioner has made prima facie 

showing of entitlement to relief, court may not engage in 

factfinding; the authority to make such determinations without 

conducting an evidentiary hearing is limited to readily 

ascertainable facts from the record]; People v. Drayton (2020) 47 

Cal.App.5th 965, 982 [court should not have engaged in 

factfinding without first issuing an OSC and allowing the parties 

to present evidence at a hearing]; People v. Duchine (2021) 60 

Cal.App.5th 798, 815 [at prima facie stage, court “may not 

evaluate the evidence, make credibility findings adverse to the 

petitioner, engage in factfinding or exercise discretion.”].) 

Nonetheless, the court’s misstep is harmless, because the 

special circumstance findings preclude section 1170.95 relief as a 

matter of law. We “ ‘review the ruling, not the court’s reasoning, 

and if the ruling was correct on any ground, we affirm.’ ” (People

v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.) 

To be eligible for resentencing, Reese was required to show 

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

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

1437. (§ 1170.95, subd. (a)(3).) Under section 189, as amended, a 

defendant can be convicted of felony murder if he was the actual 

killer; acted as a direct aider and abettor with the intent to kill; 

or was a major participant in the underlying felony and acted 
12

with reckless indifference to human life. (§ 189, subd. (e); People 

v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted 

Nov. 18, 2020, S264978.) 

Reese’s jury found true two special circumstances: that the 

murder was committed while he was engaged in the crimes of 

attempted carjacking and burglary. (§ 190.2, subd. (a)(17)(L), 

(G).) It was instructed that if Reese was not the actual killer (or 

if it could not determine whether he was), it could not find the 

special circumstances true unless it was satisfied beyond a 

reasonable doubt that he, with the intent to kill, directly aided 

and abetted the murder; or, with reckless indifference to human 

life and as a major participant, aided and abetted the underlying 

offenses of carjacking or burglary.

Thus, the jury’s findings on the special circumstance 

allegations make Reese ineligible for resentencing as a matter of

law. “The requirements for the felony-murder special

circumstance did not change as a part of Senate Bill No. 1437,

and 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 
13

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

review granted Oct. 14, 2020, S264284; see People v. Jones (2020) 

56 Cal.App.5th 474, 482, review granted Jan. 27, 2021, S265854 

(Jones); People v. Gomez (2020) 52 Cal.App.5th 1, 15 (Gomez), 

review granted Oct. 14, 2020, S264033; People v. Murillo, supra,

54 Cal.App.5th at p. 167, rev.gr.; People v. Allison (2020) 55 

Cal.App.5th 449, 457 (Allison); People v. Nunez (2020) 57 

Cal.App.5th 78, 91, review granted Jan. 13, 2021, S265918 

(Nunez).)

As noted, Reese argues that the jury’s special circumstance 

findings are not preclusive in his case, because they predated our 

Supreme Court’s decisions in Banks and Clark. “Banks and 

Clark ‘clarified “what it means for an aiding and abetting 

defendant to be a ‘major participant’ in a crime who acted with a 

‘reckless indifference to human life.’ ” ’ [Citation.] Banks 

identified certain factors to consider in determining whether a 

defendant was a major participant; Clark identified factors to 

guide the determination of whether the defendant acted with 

reckless indifference to human life.” (Gomez, supra, 52 

Cal.App.5th at p. 13, fn. 5, rev.gr.) 

The appellate courts are split on the question of whether a 

pre-Banks and Clark special circumstance finding makes a 

petitioner ineligible for section 1170.95 relief as a matter of law.6 

(See Jones, supra, 56 Cal.App.5th at pp. 478–479, rev.gr. 

[collecting cases].) Some courts have concluded that such a 

special circumstance does not, by itself, render a petitioner 

ineligible for relief. (Torres, supra, 46 Cal.App.5th at p. 1178, 

6 Our Supreme Court is currently considering the question. 

(People v. Strong, S266606, review granted March 10, 2021.)
14

rev.gr.; People v. Harris, supra, 60 Cal.App.5th at pp. 956–958, 

rev.gr.) Torres reasoned that Banks and Clark “construed section 

190.2, subdivision (d) in a significantly different, and narrower 

manner than courts had previously construed the statute.” 

(Torres, at p. 1179.) “Accordingly, in determining if [petitioner] 

could be convicted today of first degree murder, we cannot simply 

defer to the jury’s pre-Banks and Clark factual findings that 

[petitioner] was a major participant who acted with reckless 

indifference to human life as those terms were interpreted at the 

time.” (Ibid.) “No court has affirmed the special circumstances 

findings at issue post-Banks and Clark. There is therefore a 

possibility that [the petitioner] was punished for conduct that is 

not prohibited by section 190.2 as currently understood, in 

violation of [the petitioner’s] constitutional right to due process.” 

(Id. at p. 1180, fn. omitted; People v. Smith (2020) 49 Cal.App.5th 

85, 93, review granted July 22, 2020, S262835; People v. York 

(2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, 

S264954 [pre-Banks/Clark special circumstance finding “cannot 

preclude eligibility for relief under . . . section 1170.95 as a matter 

of law, because the factual issues that the jury was asked to

resolve” in such a case “are not the same factual issues our 

Supreme Court has since identified as controlling.”]; People v. 

Harris, at pp. 957–958 [pre-Banks/Clark special circumstance 

finding, without more, does not preclude relief under section 

1170.95]; People v. Secrease (April 19, 2021, A158342) __ 

Cal.App.5th __ [2021 Cal.App.Lexis 326, *37].)

As noted, other courts hold that a pre-Banks and Clark 

special circumstance finding bars section 1170.95 relief as a 

matter of law. They reason that section 1170.95 was not meant 

to be an avenue for a collateral attack on the sufficiency of the 
15

evidence to support a special circumstance finding (see, e.g., 

Allison, supra, 55 Cal.App.5th at pp. 453, 461), and a defendant 

seeking to challenge the sufficiency of the evidence to prove a preBanks and Clark major participant or reckless indifference 

finding must do so via a petition for writ of habeas corpus. 

(Gomez, supra, 52 Cal.App.5th at pp. 16–17, rev.gr.; People v. 

Galvan, supra, 52 Cal.App.5th at p. 1137, rev.gr.; Jones, supra,

56 Cal.App.5th at p. 483, rev.gr.; Nunez, supra, 57 Cal.App.5th at 

p. 96, rev.gr.) 

In support of this view, some cases point out that Banks 

and Clark did not state a new rule of law, but merely clarified the 

already-existing meaning of “major participant” and “reckless 

indifference,” terms that do not have specialized definitions and 

are interpreted as used in common parlance. (Jones, supra, 56 

Cal.App.5th at pp. 482, 484, rev.gr.; Nunez, supra, 57 

Cal.App.5th at p. 92, rev.gr.; Allison, supra, 55 Cal.App.5th at 

pp. 458–459.) While optional language was added to the pattern 

jury instructions after Banks and Clark, “no mandatory language 

or material changes were made to the CALCRIM special 

circumstance instructions,” and there is no requirement that 

juries be instructed on the Banks/Clark clarifications. (Nunez, at 

pp. 92–93; Jones, at p. 484; Allison, at pp. 458–459.) Thus, the 

argument that a pre-Banks/Clark special circumstance finding 

must be presumed invalid exaggerates the impact of Banks and 

Clark. (See Allison, at p. 458; Jones, at p. 484.) There is “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, 

or resolved different factual issues, answered different questions, 

or applied different standards.” (Nunez, at p. 94). 
16

Additionally, this line of authority reasons that the 

Torres/Smith/York approach is inconsistent with the plain 

language of section 1170.95, because a defendant claiming 

ineligibility based on Banks and Clark does not meet the 

statutory requirement that he or she cannot be convicted because 

of changes to sections 188 or 189 made by Senate Bill 1437. 

(Jones, supra, 56 Cal.App.5th at p. 484, rev.gr.) “In order to be 

eligible for resentencing, a defendant must show that he or she 

‘could not be convicted of first or second degree murder because of 

changes to Section[s] 188 or 189 made effective’ as part of Senate 

Bill No. 1437. (§ 1170.95, subd. (a)(3).) [¶] . . . Although 

[petitioner] is asserting that he could not now be convicted of 

murder, the alleged inability to obtain such a conviction is not 

‘because of changes’ made by Senate Bill No. 1437, but because of 

the clarification of the requirements for the special circumstance 

finding in Banks and Clark. Nothing about those requirements

changed as a result of Senate Bill No. 1437. Just as was the case

before that law went into effect, the special circumstance applies

to defendants who were major participants in an underlying

felony and acted with reckless indifference to human life.” 

(Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr.; People v.

Murillo, supra, 54 Cal.App.5th at p. 168, rev.gr.; Allison, supra,

55 Cal.App.5th at p. 460; Nunez, supra, 57 Cal.App.5th at pp. 94–

95, rev.gr.)

Further, in concluding that the proper vehicle to challenge 

a pre-Banks and Clark special circumstance finding is a petition 

for writ of habeas corpus, courts point to the different burdens 

involved in a habeas petition and a section 1170.95 petition. A 

defendant challenging a pre-Banks/Clark special circumstance 

finding on direct appeal or by means of a writ of habeas corpus 
17

must show that the record contains insufficient evidence to prove 

he or she acted as a major participant or with reckless 

indifference. (Jones, supra, 56 Cal.App.5th at p. 485, rev.gr.; 

Galvan, supra, 52 Cal.App.5th at pp. 1142–1143, rev.gr.; Gomez,

supra, 52 Cal.App.5th at p. 17, rev.gr.) “By contrast, a petitioner

who demonstrates a prima facie case for relief under section

1170.95 has shifted the burden to the People to prove beyond a

reasonable doubt that they are ineligible for resentencing (that is,

they still could be convicted of murder despite the change to the

felony-murder rule in § 189). [Citation.] . . . . [T]he

Torres/Smith/York line of cases would read into section 1170.95 a 

new procedure allowing petitioners to ignore a special 

circumstance finding—no matter how well supported in the 

record—as well as the recognized method of challenging it. Such 

petitioners would be allowed to relitigate a prior jury finding at 

an evidentiary hearing where the prosecution bears the burden of 

proving the truth of the finding, beyond a reasonable doubt, a 

second time.” (Jones, at p. 485.) Allowing petitioners to 

challenge a special circumstance finding via a section 1170.95 

petition would give them an advantage over similarly situated 

defendants, based on the date of their convictions. (Galvan, at 

pp. 1142–1143; see Nunez, supra, 57 Cal.App.5th at pp. 96–97, 

rev.gr.)

Such a procedure is inconsistent with the Legislature’s 

intent. “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. 

But there is no indication in the statute’s text or history of any

legislative intent to permit defendants to challenge their murder
18

convictions by attacking prior findings of fact.” (People v. Nunez,

supra, 57 Cal.App.5th at p. 95, rev.gr.) “Nothing in the language 

of section 1170.95 suggests it was intended to provide redress for 

allegedly erroneous prior factfinding. In particular, 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. 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,

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

We conclude that the cases holding that a special

circumstance finding precludes relief as a matter of law are more

persuasive.7 Accordingly, we conclude that the trial court 

correctly denied Reese’s section 1170.95 petition because he is 

ineligible for relief as a matter of law. 

7

If Reese believes the evidence was insufficient, after Banks

and Clark, to support the special circumstance finding, he is not

without a remedy, as he may bring a petition for writ of habeas

corpus. (See In re Scoggins (2020) 9 Cal.5th 667, 673–674.) We

express no opinion on whether such a petition might be

successful. 
19

DISPOSITION

The order is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

I concur:

ADAMS, J.*

*

 Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.
LAVIN, J., Dissenting:

The jury’s 2004 felony-murder special-circumstance 

findings do not necessarily preclude relief under Penal Code

1 section 1170.95 in light of the Supreme Court’s 

subsequent clarification in People v. Banks (2015) 61 Cal.4th 788 

(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) of the 

requirements for finding a felony-murder special-circumstance 

allegation true. (See People v. Harris (2021) 60 Cal.App.5th 939, 

959.) Further, as explained in Harris, a section 1170.95 petition 

challenges the murder conviction, not the special circumstance 

finding. (Id. at p. 956; see also People v. York (2020) 54 

Cal.App.5th 250, 260 (York), review granted Nov. 18, 2020, 

S264954 [“section 1170.95 permits a petitioner to challenge a 

murder conviction. If that challenge succeeds, then under section 

1170.95, subdivision (d)(3), the special circumstance is vacated as 

a collateral consequence”].)

I also disagree with the Attorney General’s argument, 

raised for the first time on appeal, that section 1170.95 relief is 

available only if a jury’s felony-murder special-circumstance 

findings have been successfully overturned by a habeas petition. 

As observed by the court in York in rejecting this argument, “We 

find it significant that the Legislature made no provision for the 

consequence of a prior finding by a court or a jury that a 

petitioner was a major participant and did act with reckless 

indifference to human life. If the Legislature had intended such a 

finding automatically to preclude eligibility for relief, it could 

have said so.” (York, supra, 54 Cal.App.5th at pp. 260–261, 

1 Undesignated statutory references are to the Penal Code.
2

review granted, fn. omitted; see People v. Smith (2020) 49 

Cal.App.5th 85, 94, review granted July 22, 2020, S262835 

[“[t]here is no corresponding provision indicating that a jury’s 

prior special circumstance true finding, or a Court of Appeal’s 

affirmation thereof, operates as an automatic statutory bar to 

eligibility”]; see also People v. Murphy (2001) 25 Cal.4th 136, 159 

[“the Legislature has shown that when it wants a sentence 

calculated without consideration of some circumstance, it knows 

how to use language clearly expressing that intent”].)

I also note that the evidence of Clarence Reese’s reckless 

indifference to human life, when viewed in light of Banks and 

Clark, is not clear. For example, Reese was not armed with a 

firearm, there was no evidence that Reese knew the victim had 

been fatally shot by Juan Saucedo when Reese fled from the 

garage, and the attempted carjacking and burglary only lasted a 

few minutes. In addition, although Reese knew—either before he 

got to the garage or during the actual attempted carjacking—

Saucedo had a firearm, there was no evidence that Reese knew 

Saucedo would fire the weapon or that Saucedo had used violence 

in the past. And although Reese and Saucedo intended to steal a 

vehicle from the garage, it appears that Saucedo spontaneously 

decided to carjack the victim’s car after Reese and Saucedo were 

unsuccessful in stealing a van.

In short, fact-finding following an evidentiary hearing is 

necessary to determine whether Reese could be convicted of 

felony murder under the current version of section 189, 

subdivision (e), and, therefore, is ineligible for relief under section 

1170.95. And on this record, we cannot know, what, if any, 

additional evidence might have been presented had the trial 
3

court followed the requirements of section 1170.95, subdivisions 

(c) and (d). I therefore respectfully dissent.

LAVIN, J.