Filed 12/22/23 P. v. Alvarez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT ALVAREZ,

Defendant and Appellant.

 H050011

 (Santa Clara County

 Super. Ct. No. C1359497)

I. INTRODUCTION

In July 2017, a jury convicted defendant Robert Alvarez of first degree murder and 

three counts of second degree robbery (Pen. Code, §§ 187, 211, 212.5, subd. (c)).

1 The 

jury found true the allegations that defendant committed the murder and one of the 

robberies for the benefit of, at the direction of, or in association with a criminal street 

gang (§ 186.22, subd. (b)(1)(C), (5)), and that the murder was committed while defendant 

was engaged in or was an accomplice in a robbery (§ 190.2, subd. (a)(17)). The jury 

found not true allegations that defendant personally used a deadly and dangerous weapon 

(a knife) in the commission of the murder and one of the robberies (§ 12022, subd. 

(b)(1)), along with finding gang allegations for the remaining two robbery counts not 

true. The trial court found defendant had suffered two prior strike convictions and 

1 All further statutory references are to the Penal Code.
2

sentenced defendant to life without the possibility of parole, consecutive to a term of 

50 years to life, consecutive to another six-year term. This court affirmed the judgment. 

(People v. Alvarez (Apr. 23, 2020, H045451) [nonpub. opn.].)

In October 2021, defendant petitioned for resentencing under section 1170.95 

(now section 1172.6.)2 Following briefing, the trial court denied the petition, finding 

defendant failed to establish a prima facie case of entitlement to relief under the statute.

Defendant appeals the trial court’s denial of his petition. For reasons we will 

explain, we will affirm the trial court’s denial of defendant’s petition.

II. BACKGROUND

A. Factual Summary

The trial court’s ruling denying defendant’s petition was not based on the evidence 

regarding the charged offenses. Our resolution of this matter also does not require an 

analysis of the evidence from defendant’s trial. Thus, we provide only a brief summary 

of the factual background in this matter.3

On the evening of June 12, 2013, defendant, Christopher M., and their girlfriends 

drove to multiple convenience stores in San Jose. Defendant and Christopher M. took 

alcohol from the stores without paying for it. At one of the stores, a clerk asked 

defendant and Christopher M. to pay for the alcohol, and Christopher M. cursed at the 

clerk, displayed a knife, and threatened the clerk before the two left without paying for 

the alcohol. Over the course of the night, defendant became extremely drunk. Later, the 

group stopped their vehicle, and defendant and Christopher M. got out. A short time 

later, defendant and Christopher M. returned to the vehicle. One of the women in the car 

testified that she heard yelling and that she saw Christopher M. and defendant assaulting 

2 For ease of reference, we will refer to this statute by its current designation, 

section 1172.6.

3 This court granted defendant’s request to take judicial notice of the record in 

defendant’s direct appeal and the docket from defendant’s trial.
3

a man who was lying in the street. The woman testified that she saw Christopher M. 

kicking the man and defendant swinging his arms at the man, and that when defendant 

got back in the car, he was holding a bloody knife. Police later found a man dead in the 

area where defendant and Christopher M. had been when the vehicle stopped. An 

autopsy revealed the victim died from multiple blunt and sharp force injuries. An 

investigation revealed a knife with a 10-inch blade wrapped in a shirt at defendant’s 

residence, along with other items such as a melted cellphone and a partially burned 

checkbook with the deceased’s name on it. The investigation also found text messages 

from defendant to another person the day after the stabbing, asking for assistance because 

“some shit happened.” The prosecution introduced expert opinion of defendant’s and 

Christopher M.’s membership in the Norteño gang organization.

B. Procedural History

This court affirmed the judgment in defendant’s direct appeal, rejecting 

defendant’s claims of evidentiary error, prosecutorial misconduct, instructional error, 

insufficiency of the evidence, and cumulative error. (People v. Alvarez, supra,

H045451.)

Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) took effect on 

January 1, 2019, imposing “statutory changes to more equitably sentence offenders in 

accordance with their involvement in homicides.” (Stats. 2018, ch. 1015, § 1, subd. (b).) 

Senate Bill 1437 added section 1172.6, which provides an avenue for a person convicted 

in a case involving felony murder or murder under the natural and probable consequences 

doctrine to petition the sentencing court to vacate the conviction and to be resentenced.

Defendant petitioned for relief under section 1172.6, declaring that he was 

convicted of felony murder or murder under the natural and probable consequences 

doctrine and that he could not now be convicted of murder because of subsequent 

changes to sections 188 and 189. The prosecution opposed the petition, arguing that the 

jury made its true finding on the robbery-murder special circumstance allegation after the 
4

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), and therefore defendant was 

ineligible for relief as a matter of law because the record of conviction showed he was 

“the actual killer, acted with the intent to kill, aided and abetted the actual killer in the 

commission of the murder, or was a major participant acting with reckless indifference to 

human life.” Defendant responded that the robbery-murder special circumstance finding 

did not preclude entitlement to section 1172.6 relief because the elements of issue 

preclusion were not met.

The trial court denied the petition, ruling that defendant did not establish a prima 

facie showing of entitlement to section 1172.6 relief. Nothing in the appellate record 

indicates the trial court conducted a hearing before issuing its ruling. The trial court 

noted the jury was instructed pursuant to CALCRIM No. 703 that “it could not find the 

robbery-murder special circumstance true unless it was satisfied beyond a reasonable 

doubt that [defendant] intended to kill or he was a major participant in the crime, and 

when he participated in the crime, he acted with reckless indifference to human life.” 

The trial court observed that defendant’s conviction came after Banks and Clark, and that 

the relevant law had not changed between the Banks and Clark decisions and the 

enactment of Senate Bill 1437. Thus, the trial court stated, “by finding the felony murder 

special circumstances true, [defendant’s] jury made precisely the same findings it would 

be required to make in order to convict him of felony murder under current law.”

III. DISCUSSION

Defendant contends that the trial court erred by denying his petition at the prima 

facie stage. Defendant preliminarily asserts that the jury found not true the allegation that 

he used a deadly and dangerous weapon (a knife) in the murder and robbery, and thus he 

was convicted under a felony murder theory. Defendant then raises four arguments in 

support of his position that the trial court erred in denying his petition at the prima facie 

stage. First, he argues that because the trial court failed to conduct a hearing on his 
5

petition, the trial court’s order dismissing the petition was “a nullity in excess of its 

jurisdiction.” Second, defendant argues that the robbery-murder special circumstance 

finding could not be used to determine that he was ineligible for section 1172.6 relief as a 

matter of law, because the elements of issue preclusion are not met in this situation. 

Third, and related to his second argument, defendant asserts that the jury’s true finding on 

the robbery-murder special circumstance allegation does not render him categorically 

ineligible for section 1172.6 relief because the jury instructions left open the possibility 

that the jury did not find he acted with reckless indifference to human life as that term is 

now understood, and thus the issue of his guilt under current murder law was not 

necessarily decided by the robbery-murder special circumstance finding. Finally, 

defendant contends that he could have made an offer of proof at a hearing on his petition 

to demonstrate that Christopher M. exhibited consciousness of guilt, and that this offer of 

proof would have further supported the conclusion that he established a prima facie case 

for relief under section 1172.6.

After briefing was complete in this matter, the California Supreme Court issued its 

decision in People v. Curiel (Nov. 27, 2023, S272238) ___ Cal.5th ___ (Curiel) [2023 

Cal.LEXIS 6622]. We notified the parties to be prepared to discuss the impact of the 

Curiel decision at oral argument, and we requested supplemental briefing concerning the 

effect of Curiel on this matter.4 As a result, defendant modified his issue preclusion 

4 The request for supplemental briefing specified the following issues: “What 

effect does the California Supreme Court's decision in People v. Curiel (Nov. 27, 2023, 

S272238) ___ Cal.5th___(Curiel) [2023 Cal.LEXIS 6622] have on defendant’s 

arguments concerning the preclusive effect, if any, to be given to the jury's robberymurder special circumstance finding? Specifically, what effect does Curiel have on 

defendant’s arguments that issue preclusion should not apply because: the special 

circumstance allegation was not actually litigated; the issue of his guilt under current 

murder law was not necessarily decided at trial; his trial counsel lacked incentive to 

contest the special circumstance allegation; an unforeseeable change in the law took place 

after defendant’s trial; and his trial counsel was faced with the ‘relatively minor stakes’ of 

the special circumstance allegation and ‘the unforeseeability of the future importance of 
6

argument, and additionally argued based on Curiel that the record of conviction does not 

conclusively establish defendant’s guilt of every element of murder under current law.

We conclude the trial court properly denied defendant’s section 1172.6 petition 

because the record of conviction demonstrates defendant is ineligible for relief as a 

matter of law. The error in not conducting a hearing before issuing this ruling was 

harmless.

A. Legal Principles

Murder is the unlawful killing of a human being with malice aforethought. (§ 187, 

subd. (a).) “ ‘Under the felony-murder doctrine as it existed at the time of [defendant’s] 

trial, “when the defendant or an accomplice kill[ed] someone during the commission, or 

attempted commission, of an inherently dangerous felony,” the defendant could be found 

guilty of the crime of murder, without any showing of “an intent to kill, or even implied 

malice, but merely an intent to commit the underlying felony.” [Citation.] Murders 

occurring during certain violent or serious felonies were of the first degree, while all 

others were of the second degree. [Citations.]’ [Citations.]” (People v. Wilson (2023) 

14 Cal.5th 839, 868 (Wilson).)

Senate Bill 1437 “significantly limited the scope of the felony-murder rule to 

effectuate the Legislature’s declared intent ‘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.’ [Citations.]” (People v. Strong (2022) 13 Cal.5th 698, 707–708 (Strong).) Senate 

Bill 1437 thus amended section 189 to provide that a participant in the perpetration or 

attempted perpetration of a listed felony in which a death occurs is liable for murder only 

that issue’? [¶] Based on the guidance provided in Curiel, does the record of conviction, 

including the jury’s robbery-murder special circumstance finding, ‘conclusively 

establish[] every element of the offense’ under current murder law? (Curiel, supra,

___Cal.5th at___ [p. *52].)”
7

if one of the following is proven: (1) the person was “the actual killer”; (2) the person, 

“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”; or 

(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.” (§ 189, 

subd. (e).)

Senate Bill 1437 added section 1172.6, which provides an avenue for a person 

convicted in a case involving felony murder, murder under the natural and probable 

consequences doctrine, or another theory under which malice is imputed to a person 

based solely on that person’s participation in a crime to petition the sentencing court to 

vacate the conviction and to be resentenced. “If the petition and record in the case 

establish conclusively that the defendant is ineligible for relief, the trial court may 

dismiss the petition. [Citations.] If, instead, the defendant has made a prima facie 

showing of entitlement to relief, ‘the court shall issue an order to show cause.’ 

[Citation.]” (Strong, supra, 13 Cal.5th at p. 708.) “[T]he court may appropriately deny a 

petition at the prima facie stage if the petitioner is ineligible for relief as a matter of law.” 

(People v. Harden (2022) 81 Cal.App.5th 45, 52.) “We independently review a trial 

court’s determination on whether a petitioner has made a prima facie showing. 

[Citation.]” (Ibid.)

B. Analysis

1. Failure to conduct a hearing

Senate Bill 1437 contained no explicit requirement for the trial court to hold a 

hearing before determining whether a defendant has made a prima facie case for relief. 

However, effective January 1, 2022, Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate 

Bill 775) added a sentence to section 1172.6, subdivision (c) that states: “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.” The trial court 
8

issued its order on April 20, 2022, after the effective date of this change. Thus, the trial 

court was required to hold a hearing before determining if defendant made a prima facie 

case for relief under section 1172.6.

Defendant argues the trial court acted outside its jurisdiction in issuing the order 

without conducting a hearing, asserting that: (1) a section 1172.6 proceeding is a “special 

proceeding,” and the trial court’s jurisdiction in such a proceeding “is strictly limited by 

the terms and conditions of the authorizing statute”; and (2) because the hearing was 

provided for by statute, the trial court’s failure to conduct the hearing means its order was 

outside its jurisdiction. However, defendant cites no case that has specifically held that 

the failure to hold a hearing on a section 1172.6 petition at the prima facie stage causes

the trial court’s order denying the petition to be outside its jurisdiction.

In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), the California Supreme Court 

held that the trial court erroneously denied a section 1172.6 petition at the prima facie 

stage without first appointing counsel to represent the defendant, because “only after the 

appointment of counsel and the opportunity for briefing may the superior court consider 

the record of conviction to determine whether ‘the petitioner makes a prima facie 

showing that he or she is entitled to relief.’ [Citation.]” (Lewis, supra, at p. 957.) 

However, the California Supreme Court held that the deprivation of the defendant’s right 

to counsel under the statute was “state law error only,” which is tested for prejudice under 

People v. Watson (1956) 46 Cal.2d 818 (Watson). (Lewis, supra, at pp. 957–958.) The 

Lewis court recognized some state statutory errors may amount to structural error that is 

not tested for prejudice, but it held the deprivation of counsel at the prima facie stage is 

not such a structural error, because “the prima facie stage under subdivision (c) is not 

similarly adversarial” to situations where deprivation of counsel does amount to 

structural error. (Id. at p. 974; see id. at p. 973.) Thus, our Supreme Court held that 

under the Watson standard, “a petitioner ‘whose petition is denied before an order to 

show cause issues has the burden of showing “it is reasonably probable that if [he or she] 
9

had been afforded assistance of counsel his [or her] petition would not have been 

summarily denied without an evidentiary hearing.” ’ [Citation.]” (Lewis, supra, at 

p. 974.)

In People v. Hurtado (2023) 89 Cal.App.5th 887, 889 (Hurtado), the Court of 

Appeal applied Lewis to affirm a trial court’s denial of a section 1172.6 petition at the 

prima facie stage, even though the trial court did not appoint counsel or hold a hearing. 

The court reasoned that in enacting Senate Bill 775, “the Legislature knew that Lewis

applied a harmless error standard in appropriate cases. The Legislature did not intend to 

replace the Lewis harmless error rule with an automatic reversal.” (Hurtado, supra, at 

p. 892.) Thus, the court held: “Senate Bill No. 775 reaffirmed Lewis with modifications, 

preserving Lewis’s recognition of the trial court’s authority to promptly screen out 

petitions by categorically ineligible defendants. The Legislature intended the Lewis

harmless error standard to continue following the enactment of Senate Bill No. 775.” 

(Ibid.)

Here, the trial court’s error in not conducting a hearing before denying the petition 

was harmless. Defendant demonstrates no prejudice he suffered from the error. As 

discussed below, we conclude upon independent review that the record of conviction 

demonstrates as a matter of law that defendant is not entitled to relief under 

section 1172.6. Any argument defendant could make to the trial court in support of his 

petition can also be made to this court. In fact, defendant’s arguments are broader on 

appeal than his arguments in briefing to the trial court. Defendant argues that if a hearing 

had been conducted on his petition, he would have made an offer of proof concerning 

evidence that he asserts demonstrates Christopher M.’s consciousness of guilt, but he has 

made this same offer of proof to this court, and we conclude below that this offered 

evidence would not change the fact that defendant’s petition was properly denied. Thus, 

it is not reasonably probable that if the trial court had conducted the required hearing, 

defendant would have received a different result. (Lewis, supra, 11 Cal.5th at p. 974.)
10

2. Effect of robbery-murder special circumstance finding

The jury found true the allegation that the murder was committed while defendant 

was engaged in or was an accomplice in a robbery, within the meaning of section 190.2, 

subdivision (a)(17). This special circumstance finding required the jury to conclude that 

defendant either intended to kill, or that defendant was a major participant in the crime 

who acted with reckless indifference to human life. Following recent changes to murder 

law, a participant in the perpetration of a listed felony (including robbery) remains liable 

for murder if 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.” 

(§ 189, subd. (e)(3).)

In Strong, supra, the California Supreme Court stated that the court’s earlier

decisions in Banks and Clark “for the first time provided substantial guidance on the 

meaning of the two relevant statutory phrases” of major participant and reckless 

indifference to human life. (Strong, supra, 13 Cal.5th at p. 703.) The Strong court noted 

that Banks “identified a series of considerations” that focused primarily on the definition 

of major participant, although Banks also discussed the meaning of reckless indifference 

to human life. (Strong, supra, at p. 705; see id. at p. 706.) The Strong court also noted 

that in Clark, the California Supreme Court reiterated Banks’s standard for major 

participant but focused on the reckless indifference to human life standard. (Strong, 

supra, at p. 706.) In Clark, the Strong court stated, the California Supreme Court 

“concluded that ‘ “reckless indifference,” . . . encompasses a willingness to kill (or to 

assist another in killing) to achieve a distinct aim, even if the defendant does not 

specifically desire that death as the outcome of his [or her] actions.’ [Citation.]” (Strong, 

supra, at p. 706.) The Strong court stated that in Clark, “[m]uch as in Banks, we set out a 

nonexhaustive list of considerations relevant to this determination, including use of or 

awareness of the presence of a weapon or weapons, physical presence at the scene and 

opportunity to restrain confederates or aid victims, the duration of the crime, knowledge 
11

of any threat the confederates might represent, and efforts taken to minimize risks. 

[Citation.]” (Strong, supra, at p. 706.) Thus, the Strong court stated, “Banks and Clark

both substantially clarified the law governing findings under Penal Code 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 indifference inquiry.” (Id. at pp. 706–707.)

The jury in Strong found true the section 190.2 felony murder special 

circumstance allegations that the defendant was a major participant who acted with 

reckless indifference to human life. (Strong, supra, 13 Cal.5th at p. 703.) This finding 

came before the Banks and Clark decisions. (Strong, supra, at p. 703.) The defendant 

then petitioned for section 1172.6 relief, and on appeal from the denial of the petition at 

the prima facie stage, the California Supreme Court held: “It is undisputed that when 

Senate Bill 1437 amended Penal Code section 189 to incorporate major participation and 

reckless indifference requirements, it codified the understanding of those requirements 

elucidated in Banks and Clark. [Citations.] It is also undisputed that findings made after 

Banks and Clark ordinarily establish a defendant’s ineligibility for resentencing under 

Senate Bill 1437 and thus preclude the defendant from making a prima facie case for 

relief. If a jury has determined beyond a reasonable doubt that a defendant was a major 

participant who acted with reckless indifference to human life, as those phrases are now 

understood and as the Legislature intended them to be understood when incorporating 

them into Penal Code section 189, then that defendant necessarily could still be convicted 

of murder under section 189 as amended. [Citations.]” (Strong, supra, 13 Cal.5th at 

p. 710.) Later, the court again stated that “post-Banks and Clark findings ordinarily do 

foreclose section 1172.6 resentencing,” and that “the Legislature contemplated that many, 

and perhaps most, such findings would be given effect on resentencing.” (Id. at p. 715.) 

However, the court held that findings made before Banks and Clark do not have such 

preclusive effect in section 1172.6 prima facie proceedings, because “Banks and Clark
12

represent the sort of significant change that has traditionally been thought to warrant 

reexamination of an earlier-litigated issue.” (Strong, supra, at p. 717.)

Here, the jury’s true finding on the robbery-murder special circumstance 

allegation was made on July 12, 2017, two years after the California Supreme Court’s 

decision in Banks and one year after the Clark decision. Despite Strong’s statements that 

post-Banks and Clark section 190.2 special circumstance findings will ordinarily 

preclude section 1172.6 relief as a matter of law, defendant contends the trial court erred 

in denying his petition at the prima stage, for three reasons. First, he asserts Strong was 

based on the law of issue preclusion and elements required for issue preclusion to apply 

are not met in his case; thus, the special circumstance finding does not preclude 

defendant from establishing entitlement to section 1172.6 relief. Second, and relatedly, 

he argues issue preclusion does not apply because the jury instruction on the meaning of 

“reckless indifference to human life” was inadequate to show that the jurors “necessarily 

decided” defendant acted with reckless indifference, as that term is now used in section 

189, subdivision (e)(3). Finally, defendant asserts that “[t]he statutory authority for 

[defendant] to adduce new or additional evidence that wasn’t considered in the prior 

proceeding [citation] is also an exception to the People’s claim of issue preclusion, and 

new evidence may be adduced at the prima facie case stage by way of offer of proof.” 

We find none of these arguments persuasive to overcome Strong’s holding that a postBanks and Clark special circumstance finding ordinarily forecloses section 1172.6 relief. 

Thus, we conclude the trial court correctly denied defendant’s petition.

a. Issue preclusion’s applicability to the robbery-murder special 

circumstance finding

First, defendant argues that Strong was based on issue preclusion grounds, and that 

multiple elements of issue preclusion are not met in his case. “As traditionally 

understood and applied, issue preclusion bars relitigation of issues earlier decided ‘only if 

several threshold requirements are fulfilled. First, the issue sought to be precluded from 
13

relitigation must be identical to that decided in a former proceeding. Second, this issue 

must have been actually litigated in the former proceeding. Third, it must have been 

necessarily decided in the former proceeding. Fourth, the decision in the former 

proceeding must be final and on the merits. Finally, the party against whom preclusion is 

sought must be the same as, or in privity with, the party to the former proceeding.’ 

[Citation.] And while these threshold requirements are necessary, they are not always 

sufficient: ‘Even if the[] threshold requirements are satisfied, the doctrine will not be 

applied if such application would not serve its underlying fundamental principles’ of 

promoting efficiency while ensuring fairness to the parties. [Citations.] It is the burden 

of the party seeking to prevent relitigation based on prior findings to raise the defense and 

establish its elements. [Citation.]” (Strong, supra, 13 Cal.5th at p. 716.)

Defendant first asserts that issue preclusion should not apply because his trial 

counsel “lacked incentive” to contest the special circumstance allegation, and that trial 

counsel chose instead to assert defendant’s innocence to the murder charge.5 Second, 

defendant asserts that issue preclusion does not apply because an unforeseeable change in 

the law (Senate Bill 1437’s creation of section 1172.6) took place after defendant’s trial. 

As partial support for this position, defendant cites the following statement from Strong: 

“Even when the threshold requirements for issue preclusion are met, one well-settled 

equitable exception to the general rule holds that preclusion does not apply when there 

has been a significant change in the law since the factual findings were rendered that 

warrants reexamination of the issue. [Citation.]” (Strong, supra, 13 Cal.5th at pp. 716–

717.) Finally, defendant asserts that the combination of the “relatively minor stakes” of 

5 Defendant’s brief later re-asserts that the “actually litigated” element of issue 

preclusion is not met because his trial counsel did not dispute that if defendant was found 

guilty of first degree murder, then the special circumstance allegation should also be 

found true. While defendant frames this second argument under a separate heading, we 

find it appropriate to treat this as one argument that the issue of whether defendant was a 

major participant who acted with reckless indifference to human life was not actually 

litigated in his trial.
14

the special circumstance allegation in his trial and “the unforeseeability of the future 

importance of that issue” means that issue preclusion should not apply.

We conclude that the jury’s special circumstance finding has preclusive effect in 

defendant’s section 1172.6 petition. Strong did not specifically state that full issue 

preclusion requirements necessarily apply in the section 1172.6 context; it stated that one 

of the “background principles” that framed its analysis was that “[i]n general, whether a 

prior finding will be given conclusive effect in a later proceeding is governed by the 

doctrine of issue preclusion, also known as collateral estoppel.” (Strong, supra, 13 

Cal.5th at p. 715.) The Attorney General argues that section 1172.6 “obviates the need to 

rely on traditional issue preclusion, because the statutory scheme makes clear that certain 

factual findings must be considered by the court when evaluating a prima facie showing.” 

Decisions by the Courts of Appeal have taken varying approaches as to whether full issue 

preclusion requirements apply in the context of a section 1172.6 prima facie 

determination. (See, e.g., People v. Bratton (2023) 95 Cal.App.5th 1100, 1127 (Bratton) 

[“We conclude that the Legislature intended that issue preclusion apply at the prima facie 

stage . . . .”]; People v. Arnold (2023) 93 Cal.App.5th 376, 385 [stating that the analysis 

in Strong “suggests that the collateral estoppel doctrine does apply to section 1172.6 

proceedings” but not deciding the issue]; (People v. Jones (2022) 86 Cal.App.5th 1076, 

1085 [“[W]e decline to decide whether issue preclusion can ever apply in the context of a 

section [1172.6] proceeding.”]; People v. Cooper (2022) 77 Cal.App.5th 393, 413 

[because collateral estoppel in the criminal context is a component of the double jeopardy 

clause, “it is not clear whether collateral estoppel principles apply in section [1172.6] 

proceedings.”].) Recently, our Supreme Court in Curiel observed that in Strong, “we 

determined that general principles of issue preclusion informed our consideration of the 

effect of prior jury findings in a resentencing proceeding under section 1172.6.” (Curiel, 

supra, ___ Cal.5th at p. ___ [p. 27], citing Strong, supra, at pp. 715–716.) The Curiel

court stated: “Without deciding whether this doctrine applies wholesale to criminal 
15

resentencing proceedings generally, or even section 1172.6 proceedings specifically, we 

continue to believe its contours are informative in this context and rely on them again 

here.” (Curiel, supra, at p. ___ [p. 27].) Thus, the Curiel court analyzed whether issue 

preclusion applied to a prior jury gang-murder special circumstance finding using 

traditional elements of issue preclusion. (Id. at pp. ___ [pp. 28–53].)

We follow Curiel’s approach by applying the elements of traditional issue 

preclusion to determine that the jury’s robbery-murder special circumstance has 

preclusive effect in the section 1172.6 proceedings. We also follow Strong’s holding that 

post-Banks and Clark special circumstances findings will “ordinarily establish a 

defendant’s ineligibility for resentencing under Senate Bill 1437 and thus preclude the 

defendant from making a prima facie case for relief.” (Strong, supra, at p. 710.) Even if 

all the traditional requirements for issue preclusion to apply must be met in this context,

the jury’s special circumstance finding establishes that defendant acted with the requisite 

mens rea necessary for murder liability under current law.

Defendant’s opening brief argued that the special circumstance allegation was not 

actually litigated at trial, because he chose to assert he was not guilty of the murder and 

thus lacked incentive to contest the special circumstance allegation. However, “[a]n issue 

is actually litigated ‘[w]hen [it] is properly raised, by the pleadings or otherwise, and is 

submitted for determination, and is determined . . . .’ [Citation.]” (People v. Sims (1982) 

32 Cal.3d 468, 484.) In determining whether an issue was actually litigated, “ ‘[i]t is the 

opportunity to litigate that it is important in these cases, not whether the litigant availed 

himself or herself of the opportunity.’ [Citation.]” (Murray v. Alaska Airlines, Inc.

(2010) 50 Cal.4th 860, 872.) Thus, in Curiel, the California Supreme Court held that the 

jury’s previous gang-murder special circumstance finding was actually litigated, rejecting 

Curiel’s argument that “his intent to kill was not actually litigated because his counsel did 

not specifically address the special circumstance in closing argument.” (Curiel, supra, 

___ Cal.5th at p. ___ [p. 30].) The Curiel court stated: “ ‘The rule that collateral 
16

estoppel applies only to those issues that were actually or fully litigated in the prior 

proceeding does not refer to the quality or quantity of argument or evidence addressed to 

an issue. . . . Issue preclusion because of a prior adjudication results from the resolution 

of a question in issue, not from the litigation of specific arguments directed to the issue.’ 

[Citation.]” (Curiel, supra, at p. ___ [p. 31].) Thus, the court in Curiel held: “The 

decision by Curiel’s counsel not to specifically address the special circumstance was a 

matter of trial strategy, which ‘would no more defeat the plea of collateral estoppel than 

the failure of a litigant to introduce relevant available evidence in any other situation.’ 

[Citation.]” (Ibid.) Defendant acknowledges that Curiel “directly rejected” his argument 

that the special circumstance allegation was not actually litigated. We therefore conclude 

that because the special circumstance allegation was alleged in the information, evidence 

concerning the allegation was presented at trial, the issue was presented to the jury, and 

the allegation was found to be true by the jury, the special circumstance allegation was 

actually litigated. The decision by defendant’s trial counsel not to present evidence or 

argument focused on the robbery-murder special circumstance allegation was a matter of 

trial strategy, which does not defeat the applicability of issue preclusion.6

Defendant’s assertion that issue preclusion does not apply because an 

unforeseeable change in the law occurred after his trial is equally not persuasive. He 

argues: “Had counsel in 2017 been able to foresee the enactment of [Senate Bill] 1437 in 

2018, he would have had much more reason to litigate the special circumstance, because 

6 Defendant’s opening brief cited People v. Gonzalez (2021) 65 Cal.App.5th 420 

(Gonzalez) to support his argument that the special circumstance was not actually 

litigated. In Gonzalez, the Court of Appeal held that the defendant’s section 1172.6 

petition was not precluded by the jury’s prior robbery-murder special circumstance 

finding, reasoning: “Because Gonzalez made no effort to litigate the special 

circumstance, and had no reason to do so, the ‘actually litigated’ element of collateral 

estoppel is not satisfied by the jury’s true finding.” (Gonzalez, supra, at p. 433.) 

However, Curiel disapproved of Gonzalez, holding, “Gonzalez failed to appreciate that 

the dispositive question is a litigant’s opportunity to litigate, not the litigant’s actual 

conduct at trial.” (Curiel, supra, ___ Cal.5th at p. ___, fn. 3 [p. 31, fn. 3].)
17

he would have known the issue of intent to kill would become far more important a year 

later. Of course, counsel in 2017 lacked psychic powers. Thus, the unforeseeability of a 

new proceeding that hadn’t been created at the time of the original one, in which the 

allegedly precluded issue (intent to kill) achieved equally unforeseeable extra importance, 

falls within the ‘change of law exception’ to issue preclusion.”

Curiel disposes of this argument, as Curiel held that a substantively identical 

argument to the one defendant raises here “is plainly foreclosed by our opinion in 

Strong.” (Curiel, supra, ___ Cal.5th at p. ___ [p. 45].) The Curiel court held: “Indeed, 

it was undisputed in Strong that jury findings made under the current governing 

substantive legal standard (i.e., post-Banks and Clark) would ‘ordinarily establish a 

defendant’s ineligibility for resentencing under Senate Bill 1437 and thus preclude the 

defendant from making a prima facie case for relief.’ [Citation.] Senate Bill 1437 does 

not itself support an equitable exception to issue preclusion. To the contrary, issue 

preclusion will ‘ordinarily’ apply in such proceedings. [Citation.]” (Id. at p. ___

[pp. 45–46].) This court provided defendant the opportunity in supplemental briefing to 

address the impact of Curiel on this aspect of his argument, and defendant declined to do 

so. We therefore follow Curiel and reject defendant’s argument that the enactment of 

Senate Bill 1437 constitutes an unforeseeable change in the law that warrants an 

exception to the application of issue preclusion.

Finally, we reject defendant’s assertion that issue preclusion should not apply 

because of the combination of the “relatively minor stakes” of the special circumstance 

allegation in his trial and “the unforeseeability of the future importance of that issue.” 

This argument appears to combine defendant’s “actually decided” and “change in the 

law” arguments, arguments we have already rejected. Strong gave no indication that 

issue preclusion should not apply in defendant’s situation; instead, it held that “findings 

made after Banks and Clark ordinarily establish a defendant’s ineligibility for 

resentencing under Senate Bill 1437 and thus preclude the defendant from making a 
18

prima facie case for relief,” despite the change in the law produced by Senate Bill 1437. 

(Strong, supra, 13 Cal.5th at p. 710.)

We recognize that “even where the minimal prerequisites for invocation of the 

doctrine are present, collateral estoppel ‘ “is not an inflexible, universally applicable 

principle; policy considerations may limit its use where the . . . underpinnings of the 

doctrine are outweighed by other factors.” ’ [Citations.]” (Vandenberg v. Superior Court

(1999) 21 Cal.4th 815, 829.) We see no such policy considerations that outweigh the 

application of issue preclusion here. Defendant argues that issue preclusion should not 

apply because his trial counsel lacked incentive to contest the special circumstance 

allegation, instead choosing to assert defendant’s innocence to the murder charge. The 

Bratton court held that an exception to issue preclusion may apply where “ ‘the party 

sought to be precluded . . . did not have an adequate opportunity or incentive to obtain a 

full and fair adjudication in the initial action.’ ” (Bratton, supra, 95 Cal.App.5th at 

p. 1117, quoting Rest.2d Judgments, § 28(5).) However, Bratton rejected a similar 

argument to the one defendant makes here: that the defendant lacked the incentive to 

contest whether he was the shooter because he chose to contest his involvement in the 

underlying crimes. (Bratton, supra, at pp. 1121–1122.) The court held that “trial counsel 

did have an incentive to contest this issue; evidently, he simply made a tactical decision 

not to.” (Id. at p. 1105.) Curiel also rejected the argument that a lack of incentive to 

contest a special circumstance allegation justifies an exception to issue preclusion, 

holding both that under one theory pursued by the prosecution in that case, intent to kill 

was an element of the crime of murder itself, and that “the special circumstance finding 

would have collateral consequences in any future appeal or petition for writ of habeas 

corpus [citation] and could impact a future request for pardon or commutation from the 

Governor.” (Curiel, supra, ___ Cal.5th at p. ___ [p. 44].) Thus, the Curiel court held: 

“We therefore disagree with Curiel that the significance of the special circumstance 
19

finding was ‘minimal’ and it should not be given preclusive effect.” (Id. at p. ___ [p. 44], 

fn. omitted.)

Here, defendant not only had an incentive to contest the special circumstance 

allegation, his trial counsel actually did assert in closing argument that defendant was not 

guilty of the special circumstance allegations, including the robbery-murder allegation.7

Moreover, trial counsel’s closing argument centered on assertions about the lack of 

evidence that defendant was the stabber and evidence of defendant’s intoxication. 

Defendant does not adequately explain on appeal how his defense to the murder charge 

would be inconsistent with contesting the robbery-murder special circumstance allegation 

in more detail than he did. Defendant had the opportunity to contest the robbery-murder 

special circumstance allegation. To the extent that he did not contest the allegation in 

more detail, this represents a “matter of trial strategy” on his part, and issue preclusion 

still applies. (Curiel, supra, at p. ___ [p. 31].) Once again, this court provided defendant 

the opportunity in supplemental briefing to address the impact of Curiel on this aspect of 

his argument, and defendant declined to do so. We therefore follow Curiel in holding 

that issue preclusion applies despite defendant’s argument regarding the stakes of the 

special circumstance allegation and the unforeseeability of the future importance of this 

issue.

Defendant had the opportunity and adequate incentive to contest the special 

circumstance allegation. The jury, having considered the evidence set forth by the 

7 Defense counsel asserted in closing argument that evidence of defendant’s 

voluntary intoxication “applies to all the charges, all four counts, special circumstance 

alleged, which is the robbery, which relates to first-degree murder if you get there.” 

Later, defense counsel asserted that expert testimony regarding defendant’s level of 

intoxication raised a reasonable doubt as to “[f]irst-degree murder in the special 

circumstance robbery and the robberies.” Defense counsel also argued, after asserting

that evidence of defendant’s intoxication demonstrated he did not act with premeditation 

or deliberation, that “you must be convinced that the only reasonable conclusion 

supported by the circumstantial evidence is that the defendant is guilty or the special 

allegations, special circumstance and allegations are true.”
20

prosecution and the defense, determined that defendant’s actions demonstrated that he 

acted with intent to kill or was a major participant in an underlying felony who acted with 

reckless indifference to human life. Our Supreme Court has repeatedly stated that a 

jury’s previous findings are to be used in determining whether a defendant has made a 

prima facie showing of entitlement to section 1172.6 relief. (Lewis, supra, 11 Cal.5th at 

p. 957; Strong, supra, at p. 715; Wilson, supra, 14 Cal.5th at p. 875; Curiel, supra ___ 

Cal.5th at p. ___ [pp. 45–46].) We therefore conclude that even if traditional issue 

preclusion principles apply, the jury’s special circumstance finding has preclusive effect 

in the section 1172.6 proceedings.

b. Jury instructions on “reckless indifference to human life”

Even though in Strong, our Supreme Court stated that it is “undisputed that 

findings made after Banks and Clark ordinarily establish a defendant’s ineligibility for 

resentencing” (Strong, supra, 13 Cal.5th at p. 710), defendant argues that this principle 

does not apply to him because the jury was instructed that reckless indifference to human 

life exists when a defendant knowingly engages in criminal activity that he or she knows 

involves a “grave risk of death.” Defendant argues that this instruction did not capture 

the “ ‘deeper understanding’ ” of the term “reckless indifference to human life” as 

articulated in Clark, and thus “it is not certain that the prior jury decided the issue of 

reckless indifference under the heightened Banks/Clark standard that the Legislature then 

incorporated into [Senate Bill] 1437.” Because of this, defendant argues, the jury did not 

necessarily decide that defendant acted with reckless indifference to human life, as that 

term is now understood. In supplemental briefing, defendant relies on Curiel to support 

this argument, arguing: “Curiel held that ‘necessarily decided’ can only be determined 

based on the jury’s actual instructions.” Thus, defendant argues that the issue of his guilt 

under current murder law was not necessarily decided by the jury’s robbery-murder 

special circumstance finding, building off his issue preclusion argument.
21

CALCRIM No. 703 is used to instruct juries as to the intent requirement for a 

murder special circumstances allegation where the defendant is found not to be the actual 

killer. Under the version of this instruction used in defendant’s case, the trial court 

instructed the jury as follows: “In order to prove this special circumstance for a 

defendant who is not the actual killer but who is guilty of first degree murder as an aider 

and abettor, the People must prove either that the defendant intended to kill, or the People 

must prove all of the following: [¶] 1. The defendant’s participation in the crime began 

before or during the killing; AND [¶] 2. The defendant was a major participant in the 

crime; AND [¶] 3. When the defendant participated in the crime, he acted with reckless 

indifference to human life.” This instruction listed several factors, in accordance with 

Banks, the jury could consider in determining whether defendant was a major participant 

in the robbery. In defining “reckless indifference to human life,” the instruction 

provided: “A person acts with reckless indifference to human life when he knowingly 

engages in criminal activity that he knows involves a grave risk of death.” The 

instructions listed no factors for the jury to consider in deciding whether defendant acted 

with reckless indifference to human life.

The California Supreme Court in Clark held the definition of “reckless 

indifference to human life” “encompasses both subjective and objective elements,” and 

the mere fact that a robbery involves a gun, “on its own and with nothing more presented, 

is not sufficient to support a finding of reckless indifference to human life for the felonymurder aider and abettor special circumstance.” (Clark, supra, 63 Cal.4th at p. 617, fn. 

omitted.) The court in Clark laid out several “case-specific factors” that can assist in 

determining whether an aider and abettor acted with reckless indifference to human life. 

(Id. at p. 618; see id. at pp. 618–622.) The court in Clark did not hold that a jury must be 

instructed on these factors when considering a special circumstance allegation, and it 

stated, “ ‘[n]o one of these considerations is necessary, nor is any one of them necessarily

sufficient.’ [Citation.]” (Id. at p. 618.)
22

In 2020, CALCRIM No. 703 was revised to list in brackets the Clark factors the 

jury may consider in determining whether the defendant acted with reckless indifference 

to human life.8 Bench notes to the instruction state that “[t]he trial court should 

determine whether the Clark factors need be given,” and “[t]he court may give the 

bracketed definition of reckless indifference if requested.” (Jud. Council of Cal., Crim. 

Jury Insts. (2020 ed.) Bench Notes to CALCRIM No. 703.)

In People v. Farfan (2021) 71 Cal.App.5th 942 (Farfan), the Court of Appeal held 

that because the jury found a robbery-murder special circumstance allegation true, the 

defendant was ineligible for section 1172.6 relief as a matter of law. (Farfan, supra, at 

p. 951.) The Farfan decision, which was issued before Strong, noted that at the time, a 

split existed as to whether a pre-Banks and Clark special circumstance finding caused a 

section 1172.6 petitioner to be ineligible for relief as a matter of law. (Farfan, supra, at 

p. 955.) However, in Farfan, the special circumstance finding was made after Banks and 

Clark were decided. (Farfan, supra, at p. 955.) The Farfan court noted that the 

defendant’s jury was not instructed with the Banks and Clark factors; however, it held 

that the trial court was not required to instruct on the Banks and Clark factors that were 

later incorporated into CALCRIM No. 703. (Farfan, supra, at p. 955.) Thus, the court 

8 The full added language in CALCRIM No. 703 as to the definition of reckless 

indifference to human life reads as follows: “[When you decide whether the defendant 

acted with reckless indifference to human life, consider all the evidence. No one of the 

following factors is necessary, nor is any one of them necessarily enough, to determine 

whether the defendant acted with reckless indifference to human life. Among the factors 

you may consider are: [¶] [• Did the defendant know that [a] lethal weapon[s] would be 

present during the <insert underlying felony>?] [¶] [• Did the defendant know that [a] 

lethal weapon[s] (was/were) likely to be used?] [¶] [• Did the defendant know that [a] 

lethal weapon[s] (was/were) used?] [¶] [• Did the defendant know the number of 

weapons involved?] [¶] [• Was the defendant near the person(s) killed when the killing 

occurred?] [¶] [• Did the defendant have an opportunity to stop the killing or to help the 

victim(s)?] [¶] [• How long did the crime last?] [¶] [• Was the defendant aware of 

anything that would make a coparticipant likely to kill?] [¶] [• Did the defendant try to 

minimize the possibility of violence?] [¶] . . . [¶] [• <insert any other relevant 

factors>]].” (Jud. Council of Cal., Crim. Jury Insts. (2020 ed.) CALCRIM No. 703.)
23

held, “even though appellant’s jury was not instructed with the Banks and Clark factors, 

this case falls outside the split of authority to be resolved by our Supreme Court in 

Strong. The jury’s robbery-murder special-circumstance finding constitutes a valid 

finding beyond a reasonable doubt that appellant had the intent to kill or was a major 

participant in the robbery who acted with reckless disregard for human life, and that 

finding makes appellant ineligible for relief under section [1172.6] as a matter of law.” 

(Id. at pp. 955–956.)

Strong did not disapprove of Farfan. Instead, the California Supreme Court cited 

Farfan for the following statement: “If a jury has determined beyond a reasonable doubt 

that a defendant was a major participant who acted with reckless indifference to human 

life, as those phrases are now understood and as the Legislature intended them to be 

understood when incorporating them into Penal Code section 189, then that defendant 

necessarily could still be convicted of murder under section 189 as amended.” (Strong, 

supra, 13 Cal.5th at p. 710.)

Defendant’s argument seems to assert that if a jury is not instructed in accordance 

with the later-added Clark factors, then a special circumstance finding cannot preclude 

relief under section 1172.6, because the jury might not have found under the “grave risk” 

language in the instruction that the defendant acted with reckless indifference to human 

life in the way Clark defined that term. However, Strong reached no such holding, 

instead broadly concluding that “post-Banks and Clark findings ordinarily do foreclose 

section 1172.6 resentencing,” and that “the structure of the statute—which permits trial 

courts to consult the record of conviction to determine whether the defendant has made 

out a prima facie case of eligibility [citation], and which notably does not open 

resentencing to every previously convicted murder defendant—strongly suggests the 

Legislature contemplated that many, and perhaps most, such findings would be given 

effect on resentencing.” (Strong, supra, 13 Cal.5th at p. 715.) Nothing in Strong

indicates that its holding was conditioned on the jury being instructed in accordance with 
24

instructions that were updated in light of Banks and Clark. In fact, the Strong court 

specifically acknowledged: “The jury instruction on the special circumstance, 

CALCRIM No. 703, was not amended after Banks and Clark to require instruction on the 

factors discussed. Instead, these factors were included in brackets as optional additions 

for the trial court to consider giving in its discretion.” (Strong, supra, at p. 719, fn. 4.) 

The Strong court held that pre-Banks and Clark special circumstance findings could not 

be given conclusive effect for reasons that went beyond the instructions, stating: 

“Although the mandatory instructions did not change in the wake of Banks and Clark, 

much else about the trial environment did. For one, the arguments available to counsel 

changed significantly after this court offered a range of guiding factors and made clear 

that simple participation in, e.g., a ‘garden-variety armed robbery’ was not sufficient, 

without more, to establish the truth of the felony-murder special circumstance. 

[Citation.] The newly articulated guiding factors might also have altered what evidence 

defense counsel would have sought to introduce. And more broadly, the clarifications 

Banks and Clark offered about the height of the bar needed to prove a felony-murder 

special-circumstance finding might have fundamentally altered trial strategies, causing 

some defendants to focus on proving they were guilty at most of a noncapital homicide 

once Banks and Clark created more daylight between the proof required to convict of 

murder and the proof required convict of special circumstance murder. As for 

instruction, after Banks and Clark, defense counsel could have asked that optional 

additional instruction on the Banks and Clark factors be given to guide the jury in its 

deliberations [citation], with the possibility that different outcomes might have resulted.” 

(Strong, supra, at pp. 719–720.)

While defendant’s jury was not instructed in accordance with the factors now 

made optional in CALCRIM No. 703, the concerns Strong articulated about granting preBanks and Clark special circumstance findings conclusive effect are not present here, 

where the jury’s finding was made well after Banks and Clark. Defendant was permitted 
25

to structure his trial strategy and arguments at trial in accordance with Banks and Clark. 

He could have asked the trial court to instruct the jury based on the factors Clark had 

articulated a year earlier, but he chose not to do so. Nothing in Strong requires a postBanks and Clark special circumstance finding to have been based on updated 

instructions. In fact, Strong specifically held that many if not most post-Banks and Clark

special circumstance findings would have conclusive effect even though CALCRIM 

No. 703 does not require instruction in accordance with factors articulated in Banks and 

Clark. To the extent defendant’s argument can be interpreted as asserting the jury was 

improperly instructed, a section 1172.6 petition is not the procedure to raise this issue. 

As the Court of Appeal recently held in a similar context in People v. Burns (2023) 95 

Cal.App.5th 862: “Indeed, all the case law on which Burns relies was decided well 

before the jury verdict in his trial. [Citation.] His remedy for any alleged instructional 

error that affected the verdict was his appeal from the judgment of conviction. His failure 

to raise the argument on direct appeal forfeited that claim [citation], and the subsequent 

petition process created by the Legislature when it enacted Senate Bill No. 1437 did 

nothing to change the applicable law so as to resurrect an argument he had already 

abandoned.” (Id. at pp. 867–868, fns. omitted.) Defendant raised an instructional error 

claim in his direct appeal, but he did not challenge the CALCRIM No. 703 instruction. 

In accordance with Strong and Farfan, the jury’s post-Banks and Clark special 

circumstance finding precludes defendant from section 1172.6 relief as a matter of law.

At oral argument and in supplemental briefing, defendant cited the California 

Supreme Court’s decision in Curiel as support for his position that the jury’s robberymurder special circumstance finding does not conclusively establish his guilt under 

current murder law. Defendant cites the following statement by the court in Curiel: “At 

the prima facie stage, a court must accept as true a petitioner’s allegation that he or she 

could not currently be convicted of a homicide offense because of changes to Section 188 

or 189 made effective January 1, 2019, unless the allegation is refuted by the record. 
26

[Citation.] And this allegation is not refuted by the record unless the record conclusively 

establishes every element of the offense.” (Curiel, supra, ___ Cal.5th at p. ___ [p. 52].) 

Defendant argues that under Curiel, “a preclusion question requires reference to what 

was actually before the jury, not principles of law that appear in the Official Reports but 

the jury never heard.” We conclude that Curiel does not alter Strong’s holding that 

“many, and perhaps most,” post-Banks and Clark felony murder special circumstance 

findings “would be given effect on resentencing.” (Strong, supra, 13 Cal.5th at p. 715.)

In Curiel, our Supreme Court noted that the issue of the defendant’s intent to kill 

was established by the jury’s gang-murder special circumstance finding. The court held: 

“The record here shows that Curiel’s intent to kill was actually litigated and necessarily 

decided. The prosecution alleged the gang-murder special circumstance, which included 

an intent to kill element, and Curiel put all elements of the special circumstance at issue 

by pleading not guilty. [Citation.] The court instructed the jury it could not find the 

special circumstance allegation true unless it determined Curiel ‘intended to kill.’ By 

finding the special circumstance allegation true, the jury necessarily found beyond a 

reasonable doubt that Curiel intended to kill. [Citation.]” (Curiel, supra, ___ Cal.5th at 

p. ___ [pp. 29–30].) Thus, Curiel supports the conclusion that the jury necessarily 

decided that defendant acted either with the intent to kill or with reckless indifference to 

human life.

Curiel then held even though the jury’s special circumstance finding was given 

preclusive effect in the section 1172.6 proceedings, the jury’s finding did not necessarily 

establish the defendant’s guilt under current murder law. The court stated: “Although 

we conclude the jury’s intent to kill finding should be given preclusive effect, it remains 

to be determined what that effect should be, i.e., how a trial court should apply the intent 

to kill finding in resentencing proceedings under section 1172.6.” (Curiel, supra, ___ 

Cal.5th at p. ___ [p. 46].) The court held that the special circumstance finding was 

“certainly relevant to the trial court’s consideration of a petitioner’s prima facie 
27

showing,” but that it was not dispositive, as “an intent to kill finding does not itself 

conclusively establish that a petitioner is ineligible for relief.” (Id. at pp. ___ [pp. 46–

47].) In Curiel, the defendant’s section 1172.6 petition alleged, among other matters, that 

he had been convicted of first degree murder under the natural and probable 

consequences doctrine and that he could not be convicted of murder under current law, 

while the prosecutor argued at trial that Curiel was guilty under current murder law as a 

direct aider and abettor of the murder and also under the natural and probable 

consequences doctrine. (Curiel, supra, at pp. ___ [pp. 2, 13].) The California Supreme 

Court noted that Senate Bill 1437’s amendments to section 188 “did not simply ‘add the 

element of malice aforethought’ to existing theories of murder liability,” but rather 

“eliminated the doctrine of natural and probable consequences in its entirety . . . .” 

(Curiel, supra, at p. ___ [p. 50].) Thus, the Curiel court stated: “[A]fter the enactment of 

Senate Bill 1437, a defendant cannot be convicted of murder based on the doctrine of 

natural and probable consequences, even with a showing of malice aforethought. 

[Citation.] It is an invalid theory. Murder liability requires a different, valid theory, such 

as direct aiding and abetting. [Citation.] And it requires a different, valid theory because 

of the changes to section 188 in Senate Bill 1437. It was those changes that persuaded 

this court that the doctrine of natural and probable consequences could no longer support 

murder liability, with or without malice. [Citation.] Consequently, a petitioner who 

alleges that he or she could not currently be convicted because of a homicide offense 

‘because of changes to Section 188 or 189 made effective January 1, 2019’ (§ 1172.6, 

subd. (a)(3)) puts at issue all elements of the offense under a valid theory.” (Id. at 

pp. ___ [pp. 50–51].)

Having held that a section 1172.6 petition puts at issue all elements of the offense 

under a valid theory, the California Supreme Court held that the record of conviction in 

Curiel did not conclusively establish that all elements of a still-valid theory of murder 

liability were met. It held that the jury’s special circumstance finding of the defendant’s 
28

intent to kill did not conclusively establish the defendant’s guilt under a still-valid theory, 

stating that intent to kill “is only one element. It does not by itself establish any valid 

theory of liability. [Citation.]” (Curiel, supra, ___ Cal.5th at p. ___ [p. 52].) For 

example, the Curiel court noted that under a direct aiding and abetting theory, the record 

of conviction would need to conclusively establish that the defendant aided in the 

commission of an offense perpetrated by another with knowledge of the direct 

perpetrator’s unlawful intent and with an intent to assist in achieving those unlawful ends, 

while under a theory of implied malice, the record must conclusively establish that the 

aider and abettor aided in the commission of a life-endangering act with knowledge that 

the perpetrator intended to commit the act, with intent to aid the perpetrator in the 

commission of the act, with knowledge that the act was dangerous to human life, and 

with conscious disregard for human life. (Id. at pp. ___ [pp. 52–53].) The Curiel court 

held: “A finding of intent to kill does not, standing alone, cover all of the required 

elements. It does not itself show that a petitioner like Curiel is liable for murder under 

any valid theory.” (Id. at p. ___ [p. 53].)

Our Supreme Court noted in Curiel that “[o]ther aspects of the record, such as 

additional jury findings, might be relevant to the remaining elements of the relevant 

homicide offense and conclusively refute a petitioner’s allegation that he or she could not 

be convicted of murder under current law.” (Curiel, supra, ___ Cal.5th at p. ___ [p. 53].) 

However, the court held that based on the record of conviction before it, “the jury did not 

necessarily find the requisite mens rea for direct aiding and abetting liability,” because 

intent to kill “standing alone is insufficient to render a person culpable for another’s acts” 

under a direct aiding and abetting theory. (Id. at pp. ___ [pp. 62–63].)

The instant matter is readily distinguishable from Curiel, and the record of 

conviction—including the robbery-murder special circumstance finding—conclusively 

establishes defendant’s guilt under current murder law. Curiel involved a defendant who 

may have been convicted under the natural and probable consequences doctrine, a 
29

doctrine that Curiel observed was “eliminated” by Senate Bill 1437. (Curiel, supra, ___ 

Cal.5th at p. ___ [p. 50].) Conversely, the record in the instant matter conclusively 

establishes that defendant was not convicted under the natural and probable consequences 

doctrine. The jury was not instructed on the natural and probable consequences doctrine. 

Instead, the trial court instructed the jury that the jury could find defendant guilty of first 

degree murder under the theory of felony murder. The jury returned a true finding on the 

robbery-murder special circumstance allegation. Defendant’s brief to the trial court 

concerning his section 1172.6 petition analyzed whether he remained liable for murder 

under a felony-murder theory; it did not assert he was convicted under the natural and 

probable consequences doctrine. The trial court likewise held: “by finding the felony 

murder special circumstances true, Alvarez’s jury made precisely the same findings it 

would be required to make in order to convict him of felony murder under current law.”

Senate Bill 1437 did not eliminate the felony-murder rule, as it did with the natural 

and probable consequences doctrine. Instead, Senate Bill 1437 amended section 189, 

subdivision (e) to provide that “[a] participant in the perpetration or attempted 

perpetration of a felony listed in subdivision (a) 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.” (§ 189, subd. (e).) The trial court instructed 

defendant’s jury that to find the robbery-murder special circumstance allegation true, the 

jury had to find that defendant intended to kill or he was a major participant in the crime

who acted with reckless indifference to human life. If the jury concluded that defendant 

was a major participant who acted with reckless indifference to human life, then 

defendant remains liable for murder under amended section 189, subdivision (e)(3). If 
30

the jury concluded that defendant aided and abetted Christopher M. with the intent to kill, 

then defendant remains liable for murder under amended section 189, subdivision (e)(2). 

No further elements remain to be established by the jury’s robbery-murder special 

circumstance finding.

Because the instant case involves the felony-murder rule and not the natural and 

probable consequences doctrine, Curiel is distinguishable. Instead, Strong controls this 

matter, as Strong dealt with the preclusive effect of a robbery-murder special 

circumstance finding in a prosecution under the felony-murder rule. (Strong, supra, 13 

Cal.5th at p. 703.) Curiel recognized that its holding was limited and would not 

necessarily apply in other settings, stating: “[W]e note that our holding today does not 

necessarily apply to other cases where the jury found intent to kill, or even other cases 

where the jury found true the gang-murder special circumstance. The jury instructions in 

other cases might be materially different, and they might therefore have required different 

factual findings by the jury. We hold only that under the jury instructions here, the 

findings the jury must have made are insufficient to conclusively establish that Curiel is 

liable for murder under current law.” (Curiel, supra, ___ Cal.5th at p. ___ [p. 69].) 

Curiel involved a different special circumstance finding under different theories of 

murder under current law. Regardless of the fact that the jury was not instructed in 

accordance with the Banks and Clark factors – factors that Strong recognized are not 

mandatory and that Strong indicated are not required to be instructed upon for a felony 

murder special circumstance finding to be given preclusive effect – the jury necessarily 

found that defendant acted with intent to kill or as a major participant who acted with 

reckless indifference to human life, as those terms are now defined. The jury’s robberymurder finding in the instant matter “establish[es] conclusively that the defendant is 

ineligible for relief, “ and thus the trial court did not err in denying defendant’s petition at 

the prima facie stage. (Strong, supra, 13 Cal.5th at p. 708.)
31

c. Defendant’s offer of proof on consciousness of guilt

Finally, defendant argues that he could have made an offer of proof at a hearing on 

his petition to demonstrate that Christopher M. exhibited consciousness of guilt, and that 

this offer of proof would have further supported the conclusion that he established a 

prima facie case for relief under section 1172.6. He cites numerous contradictions 

Christopher M. provided in an interview with police as evidence of Christopher M.’s 

consciousness of guilt, and he argues that the issue of whether this evidence was 

admissible was not placed at issue in his original appeal. Defendant asserts that the offer 

of proof of this evidence “more than raises a reasonable doubt of [his] guilt of murder 

under current law.”

We find no merit in this argument. Nothing in section 1172.6, subdivision (c) 

permits a trial court to consider evidence outside the record of conviction at the prima 

facie stage. Instead, the California Supreme Court in Lewis held that “the trial court may 

look at the record of conviction after the appointment of counsel to determine whether a 

petitioner has made a prima facie case for section [1172.6] relief,” and that “ ‘if the 

record, including the court’s own documents, “contain[s] facts refuting the allegations 

made in the petition,” then “the court is justified in making a credibility determination 

adverse to the petitioner.” ’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 971.) “In 

reviewing any part of the record of conviction at this preliminary juncture, a trial court 

should not engage in ‘factfinding involving the weighing of evidence or the exercise of 

discretion.’ [Citation.]” (Id. at p. 972.) “If the petition and record in the case establish 

conclusively that the defendant is ineligible for relief, the trial court may dismiss the 

petition. [Citations.]” (Strong, supra, 13 Cal.5th at p. 708.)

Nothing in section 1172.6 supplies the trial court the authority to consider the offer 

of proof of Christopher M.’s police interview. Even assuming the trial court could have 

entertained defendant’s offer of proof at the prima facie stage, however, nothing in 

Christopher M.’s police interview negates the jury’s special circumstance finding that 
32

defendant either had intent to kill or was a major participant in an underlying felony who 

acted with reckless indifference to human life. At most, the interview indicates 

Christopher M.’s shifting accounts of the robbery-murder and thus his consciousness of 

guilt. Defendant seems to assert that this evidence would help establish that Christopher 

M. was the person who stabbed the victim, but the jury’s not true finding to the allegation 

that defendant used a knife in the murder and the robbery of the murder victim is already 

part of the record of conviction. The offer of proof does not demonstrate defendant did 

not act with intent to kill or reckless indifference to human life, a matter established as a 

matter of law by the jury’s special circumstance finding. If Christopher M.’s interview 

has any relevance, that relevance arose at defendant’s trial, not at the prima facie stage of 

defendant’s section 1172.6 petition. “ ‘The purpose of section [1172.6] 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.’ ” (Farfan, supra, 71 Cal.App.5th at p. 947.)

3. Conclusion

The trial court’s error in not conducting a hearing before denying the petition was 

harmless, as it is not reasonably probable that defendant would have received a different 

result if the trial court had conducted the required hearing. Even if full issue preclusion 

principles apply, the jury’s post-Banks and Clark special circumstance establishes 

conclusively that defendant is ineligible for relief under section 1172.6, and thus the trial 

court correctly denied defendant’s petition at the prima facie stage. This conclusion is 

not affected by the instructions the jury received as to the definition of “reckless 

indifference to human life,” or by the offer of proof defendant asserts he wished to make 

to the trial court. The record of conviction, including the jury’s robbery-murder special 

circumstance finding, establishes as a matter of law that defendant either acted with intent 

to kill or was a major participant in an underlying felony who acted with reckless 
33

indifference to human life, and thus he remains liable for felony murder under current 

law. (Strong, supra, 13 Cal.5th at p. 708.)9

IV. DISPOSITION

The trial court’s order denying defendant’s petition for resentencing is affirmed.

9 Our resolution of this matter means we need not address two arguments raised by 

the Attorney General: first, that defendant is judicially estopped from asserting 

entitlement to section 1172.6 relief because in a supplemental filing in his direct appeal, 

he asserted that section 1172.6 did not apply to him; and second, that the jury’s true 

finding that the murder was committed for the benefit of, at the direction of, or in 

association with a criminal street gang necessarily means that the jury found defendant 

acted with the intent to kill.
BAMATTRE-MANOUKIAN, J.

WE CONCUR:

GREENWOOD, P.J.

BROMBERG, J.

People v. Alvarez

H050011