Filed: 3/12/21 P. v. Paulino CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DELBERT PAULINO,

Defendant and Appellant.

 B298401

 (Los Angeles County

 Super. Ct. No. BA138096-02)

APPEAL from an order of the Superior Court of 

Los Angeles County, Robert J. Perry, Judge. Reversed and 

remanded with directions.

Winston Kevin McKesson for Defendant and Appellant. 

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Idan Ivri, Analee J. Brodie and 
2

Amanda Lopez, Deputy Attorneys General, for Plaintiff and 

Respondent.

______________________

Delbert Paulino, convicted in 2011 of first degree felony 

murder, appeals the superior court’s postjudgment order denying 

his petition for resentencing under Penal Code section 1170.95,

1

arguing the court abused its discretion in determining, without 

issuing an order to show cause and conducting an evidentiary 

hearing, he could still be convicted of felony murder as a major 

participant in kidnapping for robbery who had acted with 

reckless indifference to human life. As we recently held in People 

v. Harris (Feb. 16, 2021, B300410) __ Cal.App.5th ___ 

[2021 Cal.App. Lexis 127] (Harris), a jury’s felony-murder

special-circumstance finding under section 190.2, 

subdivisions (a)(17) and (d), prior to 2015 does not necessarily 

preclude relief under 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 specialcircumstance allegation true. Here, because the record of 

conviction does not establish Paulino’s ineligibility for 

resentencing as a matter of law, we reverse the superior court’s 

ruling and remand with directions to issue an order to show 

cause and to proceed in accordance with section 1170.95, 

subdivision (d). 

1 Statutory references are to this code.
3

FACTUAL AND PROCEDURAL BACKGROUND

1. Paulino’s Felony-murder Conviction

As summarized in our opinion affirming Paulino’s 

convictions following a retrial (People v. Paulino (Nov. 4, 2014, 

B239878 & B246625) [nonpub. opn.]),2 Paulino, Austin Hemsley,

Gerald McKenzie and Equilla Jones devised a plan to rob Aundra

Boykins, who had been dating Jones and had been seen carrying 

large amounts of cash. On the evening of January 3, 1996 the 

three men followed Jones and Boykins to a motel. As Jones was 

parking in the motel lot, Paulino stopped his car directly behind

her. Hemsley and McKenzie got out, grabbed Boykins and forced 

him into the backseat of Paulino’s car. As the other men held

Boykins, Paulino used duct tape to secure Boykins’s hands 

behind his back. Paulino then resumed driving while the others 

searched Boykins.

Boykins had only a small amount of cash in his possession. 

After being beaten by Hemsley and McKenzie, Boykins said he

had a large sum of money in a closet at his home. While Paulino 

stayed with Boykins in the car, Hemsley and McKenzie went to 

Boykins’s house to search for the money. They eventually 

returned empty-handed. 

Paulino told the others that they should let Boykins go, but 

Hemsley refused. At Hemsley’s direction, Paulino drove the 

group to a secluded area where Hemsley shot and killed Boykins.

2 Paulino had previously been tried and convicted, but the 

judgment, affirmed on appeal, was set aside by the federal court 

in Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083 and Paulino v. 

Harrison (9th Cir. 2008) 542 F.3d 692 based on violation of 

Paulino’s constitutional rights under Batson v. Kentucky (1986) 

476 U.S. 79.
4

After he was arrested some months later, Paulino admitted 

his involvement in the events to detectives during recorded 

interviews, which were played for the jury, and in a handwritten, 

signed statement. Paulino insisted he had not shot Boykins and 

did not intend for him to be killed. At trial Paulino testified he 

wanted to release Boykins once he realized the man did not have 

any money, but he feared he would be killed if he let Boykins go 

free.

The jury found Paulino guilty of first degree murder (§ 187,

subd. (a)) with a special circumstance finding that the murder

had occurred during the commission of a kidnapping for robbery

(§ 190.2, subds. (a)(17), (d)), second degree robbery (§ 211) and

kidnapping for robbery (§ 209, subd. (b)). As to each count the

jury found true that a principal had been armed with a firearm

during the commission of the crime (§ 12022, subd. (a)(1)). The

trial court sentenced Paulino to life in prison without parole plus

one year on the firearm enhancement.3 

2. Paulino’s Petition for Resentencing

On October 16, 2018 Paulino, represented by counsel, 

petitioned to have his murder conviction vacated and to be 

resentenced pursuant to section 1170.95, contending he could not 

3 On appeal Paulino argued only that the trial court had

abused its discretion when it denied in part his motion for an in

camera review of law enforcement personnel records pursuant to

Pitchess v. Superior Court (1974) 11 Cal.3d 531 and had erred

when it denied his postverdict motion to compel discovery of 

information related to the jury commissioner’s method of 

allocating prospective jurors for assignment to local courthouses

in Los Angeles County. Paulino specifically contended Black 

people were underrepresented in the jury venire for the Central 

District (downtown Los Angeles). We rejected both arguments.
5

be convicted of felony murder under amendments to sections 188 

and 189 made by Senate Bill No. 1437 (2017-2018 Reg. Sess.) 

(Stats. 2018, ch. 1015) (Senate Bill 1437), which would become

effective January 1, 2019. Specifically, Paulino argued under 

new section 189, subdivision (e), he could not be found guilty of 

felony murder because he was not Boykin’s actual killer, had not 

aided or abetted the kidnapping or robbery of Boykin with the 

intent to kill and had not been a major participant in the

underlying felonies who had acted with reckless indifference to 

human life.

The prosecutor filed an opposition to resentencing on 

March 14, 2019, arguing the jury’s special-circumstance felonymurder finding pursuant to section 190.2, subdivisions (a)(17) 

and (d), rendered Paulino ineligible for resentencing as a matter 

of law. The memorandum attached as exhibits the minute order 

from Paulino’s January 26, 2012 sentencing hearing and a copy of 

a now-superseded version of CALCRIM No. 703, the felonymurder special-circumstance instruction, developed for use 

sometime after the 2015 decision in Banks, supra, 61 Cal.4th 

788—that is, three years after Paulino’s trial. The instruction 

actually given at Paulino’s trial was not provided to the court.4

On March 15, 2019, without allowing time for Paulino’s 

counsel to file a reply to the prosecutor’s memorandum and 

without appearances by any party, the superior court denied the 

petition, finding Paulino ineligible for resentencing based on the 

4 The version of CALCRIM No. 703 read to Paulino’s jury 

stated, without elaboration, “A person acts with reckless 

indifference to human life when he or she knowingly engages in 

criminal activity that he or she knows involves a grave risk of 

death.”
6

jury’s special circumstance finding, which not only had been 

affirmed on appeal, but also, according to the court, had been 

unsuccessfully challenged in 2016 by a petition for writ of habeas 

corpus following the Supreme Court’s decision in Banks, supra, 

61 Cal.4th 788.

5 As an independent ground for denying the 

petition, the court ruled Senate Bill 1437 and section 1170.95 are

unconstitutional—an argument the Attorney General does not 

advance on appeal.6

DISCUSSION

1. Senate Bill 1437 and the Section 1170.95 Petition 

Procedure

Senate Bill 1437 eliminated the natural and probable 

consequences doctrine as a basis for finding a defendant guilty of 

murder (People v. Gentile (2020) 10 Cal.5th 830, 838-839

5 In its ruling the superior court stated, “In 2016, Paulino filed 

a petition for writ of habeas corpus and asserted the jury’s special 

circumstances finding should be voided due to the passage of People 

v. Banks (2015) 61 Cal.4th 788, 803. On April 28, 2016, the Court 

rejected his claim and held his participation was substantial and 

clearly qualified as the acts of a ‘major participant’ in the special 

circumstance murder in this case. The Court is unaware of any 

attempt to appeal that decision[,] and it would appear to constitute a 

final decision on this issue.” Neither the petition referred to by the 

court nor the court’s order denying it is part of the record on appeal.

6 The superior court’s constitutional concerns have been 

thoroughly considered and persuasively rejected in a number of

comprehensive opinions (e.g., People v. Marquez (2020) 

56 Cal.App.5th 40; People v. Johns (2020) 50 Cal.App.5th 46; 

People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270; 

People v. Lamoureux (2019) 42 Cal.App.5th 241) and need not be 

addressed yet again by this court.
7

(Gentile))7 and significantly limited the felony-murder exception 

to the malice requirement for murder, permitting a murder 

conviction for a death that occurred during the commission of 

certain serious felonies only when the defendant was the actual 

killer, aided or abetted the underlying felony with the intent to 

kill, or was a major participant in the felony and acted with 

reckless indifference to human life. (See, e.g., People v. Rodriguez

(2020) 58 Cal.App.5th 227, 236, review granted Mar. 10, 2021, 

S266652; People v. Bascomb (2020) 55 Cal.App.5th 1077, 1080.)

Senate Bill 1437 also authorized, through new 

section 1170.95, an individual convicted of felony murder or 

murder under a natural and probable consequences theory to 

petition the sentencing court to vacate the conviction and be 

resentenced on any remaining counts if he or she could not have 

been convicted of murder because of Senate Bill 1437’s changes to 

the definition of the crime. (See Gentile, supra, 10 Cal.5th at 

pp. 852-853.) The petition must include a declaration the 

petitioner is eligible for relief under section 1170.95 and a 

statement whether the petitioner requests the appointment of 

counsel. (§ 1170.95, subd. (b)(1); see People v. Verdugo (2020) 

44 Cal.App.5th 320, 326-327 (Verdugo), review granted Mar. 18, 

2020, S260493.)

7 New section 188, subdivision (a)(3), provides, “Except as 

stated in subdivision (e) of Section 189 [governing felony murder], 

in order to be convicted of murder, a principal in a crime shall act 

with malice aforethought. Malice shall not be imputed to a 

person based solely on his or her participation in a crime.” By 

requiring proof of malice except in cases of felony murder, 

Senate Bill 1437 thus eliminated natural and probable 

consequences liability for murder “regardless of degree.” (Gentile,

supra, 10 Cal.5th at pp. 848, 851.) 
8

If the petition contains all required information, 

section 1170.95, subdivision (c), prescribes a process for the court 

to determine whether an order to show cause should issue: “The 

court shall review the petition and determine if the petitioner has 

made a prima facie showing that the petitioner falls within the 

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

the court shall appoint counsel to represent the petitioner. The 

prosecutor shall file and serve a response . . . and the petitioner 

may file and serve a reply. . . . If the petitioner makes a prima 

facie showing that he or she is entitled to relief, the court shall 

issue an order to show cause.” 

As we held in Verdugo, supra, 44 Cal.App.5th at page 328,

review granted, this language authorizes the superior court to 

proceed in two steps, “one made before any briefing to determine 

whether the petitioner has made a prima facie showing he or she 

falls within section 1170.95—that is, that the petitioner may be 

eligible for relief—and a second after briefing by both sides to 

determine whether the petitioner has made a prima facie 

showing he or she is entitled to relief.” (Accord, People v. Soto

(2020) 51 Cal.App.5th 1043, 1054, review granted Sept. 23, 2020, 

S263939; People v. Drayton (2020) 47 Cal.App.5th 965, 975; 

People v. Torres (2020) 46 Cal.App.5th 1168, 1177, review 

granted June 24, 2020, S262011; but see People v. Cooper (2020) 

54 Cal.App.5th 106, 118, review granted Nov. 10, 2020, S264684 

[section 1170.95, subdivision (c), contemplates only one prima 

facie review before an order to show cause issues].)8

8 The disagreement between Verdugo, supra, 44 Cal.App.5th 

320, review granted, and the many subsequent cases that have 

agreed with our interpretation of section 1170.95, subdivision (c), 

on the one hand, and People v. Cooper, supra, 54 Cal.App.5th 106,
9

Once the order to show cause issues, the court must hold a 

hearing to determine whether to vacate the murder conviction 

and to recall the sentence and resentence the petitioner on any 

remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo, supra,

44 Cal.App.5th at p. 327, review granted.) At the hearing the 

prosecution has the burden of proving beyond a reasonable doubt 

that the petitioner is ineligible for resentencing. (§ 1170.95, 

subd. (d)(3); People v. Rodriguez, supra, 58 Cal.App.5th at p. 230, 

review granted; People v. Lopez (2020) 56 Cal.App.5th 936, 949, 

review granted Feb. 10, 2021, S265974; but see People v. Duke

(2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 2021, 

S265309 [prosecutor must only prove a reasonable jury could find 

the defendant guilty of murder with the requisite mental state; 

“[t]his is essentially identical to the standard of substantial 

evidence”].)9 The prosecutor and petitioner may rely on the 

review granted, on the other, will likely be resolved by the 

Supreme Court in People v. Lewis (2020) 43 Cal.App.5th 1128, 

review granted March 18, 2020, S260598, in which briefing and 

argument have been limited to the following issues: “(1) May

superior courts consider the record of conviction in determining

whether a defendant has made a prima facie showing of 

eligibility for relief under Penal Code section 1170.95? (2) When 

does the right to appointed counsel arise under Penal Code 

section 1170.95, subdivision (c)?”

9 In granting review in People v. Duke, S265309, the 

Supreme Court limited the issue to be briefed and argued to the 

following: “Can the People meet their burden of establishing a 

petitioner’s ineligibility for resentencing under Penal Code 

section 1170.95, subdivision (d)(3) by presenting substantial 

evidence of the petitioner’s liability for murder under Penal Code 

sections 188 and 189 as amended by Senate Bill No. 1437 

(Stats. 2018, ch. 1015), or must the People prove every element of 
10

record of conviction or offer new or additional evidence to meet 

their respective burdens. (See People v. Tarkington (2020) 

49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020, 

S263219; People v. Drayton, supra, 47 Cal.App.5th at p. 981.)

2. Paulino May Challenge the Special Circumstance 

Finding in a Section 1170.95 Petition

a. Banks and Clark

Section 189, subdivision (e), which permits a felony-murder 

conviction only when specified facts relating to the defendant’s 

individual culpability have been proved, incorporates in 

subdivision (e)(3) the same requirements for proving the 

defendant acted with reckless indifference to human life as a 

major participant in one of the identified serious felonies as 

necessary for a felony-murder special-circumstance finding under 

section 190.2, subdivision (d). The factors properly considered in 

assessing such a felony-murder special-circumstance finding were 

clarified in Banks, supra, 61 Cal.4th 788 and Clark, supra, 

63 Cal.4th 522, several years after Paulino’s retrial and 

conviction. 

In Banks the Supreme Court identified factors courts 

should consider in determining whether a defendant was a 

“major participant” under section 190.2, subdivision (d): “What 

role did the defendant have in planning the criminal enterprise 

that led to one or more deaths? What role did the defendant have 

in supplying or using lethal weapons? What awareness did the 

defendant have of particular dangers posed by the nature of the 

crime, weapons used, or past experience or conduct of the other 

liability for murder under the amended statutes beyond a 

reasonable doubt?”
11

participants? Was the defendant present at the scene of the 

killing, in a position to facilitate or prevent the actual murder, 

and did his or her own actions or inaction play a particular role in 

the death? What did the defendant do after lethal force was 

used?” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)

In both Banks and Clark the Court explained that, to 

determine whether the defendant acted with reckless 

indifference, courts must “look to whether a defendant has 

‘“knowingly engag[ed] in criminal activities known to carry a 

grave risk of death.”’” (Banks, supra, 61 Cal.4th at p. 801.) As 

further refined in Clark, “reckless indifference” “encompasses 

both subjective and objective elements. The subjective element is 

the defendant’s conscious disregard of risks known to him or 

her. . . . [R]ecklessness is also determined by an objective 

standard, namely what ‘a law-abiding person would observe in 

the actor’s situation.’” (Clark, supra, 63 Cal.4th at p. 617.) 

The Supreme Court in Clark identified a series of 

considerations relevant to determining whether a defendant had 

acted with reckless indifference to human life (with some obvious 

overlap with the major-participant factors specified in Banks). 

Among others, was the defendant aware that guns would be used; 

did the defendant himself or herself use a gun; did the defendant 

have an opportunity to reduce the overall risk of violence during 

the felony or to aid the victim; did the defendant know his or her 

cohorts were likely to use lethal force? (Clark, supra, 63 Cal.4th 

at pp. 618-622.) Specifically with respect to the facts before it, 

the Clark Court emphasized, “[W]hile the fact that a robbery

involves a gun is a factor beyond the bare statutory requirements

for first degree robbery felony murder, this mere fact, on its own

and with nothing more presented, is not sufficient to support
12

a finding of reckless indifference to human life for the felonymurder aider and abettor special circumstance.” (Id. at p. 618.)10

b. The jury’s pre-Banks/Clark felony-murder specialcircumstance finding does not preclude relief as a 

matter of law

The felony-murder special-circumstance allegation required 

the jury to find that Paulino had acted with reckless indifference 

to human life and as a major participant in the robberykidnapping that resulted in Boykin’s death (§ 190.2, 

subds. (a)(17), (d)). The Attorney General argues the jury’s 

finding precludes relief under section 1170.95 as a matter of law 

and insists any challenge to the evidentiary support for that

10 The Supreme Court in Banks and Clark did not expressly 

require that juries be instructed on the factors it had identified. 

Optional language describing those factors has been added to 

CALCRIM No. 703; and the bench notes expressly direct the trial 

court to determine whether the Banks and Clark factors “need be 

given.” Accordingly, it is not necessarily the case that a postBanks/Clark jury will have received instructions that differ from 

those given to a pre-Banks/Clark jury that made a major 

participant/reckless indifference finding. Nonetheless, posttrial, 

appellate and postconviction review of a felony-murder specialcircumstance finding after Banks and Clark must consider the 

factors, issues and questions posited in those cases. (See, e.g., 

In re Scoggins (2020) 9 Cal.5th 667, 671 [habeas petitioner’s 

conduct did not support a finding of reckless indifference to 

human life under Banks and Clark notwithstanding affirmance 

on direct appeal of a pre-Banks and Clark robbery-murder 

special-circumstance finding]; In re Bennett (2018) 

26 Cal.App.5th 1002 [granting habeas relief and vacating 

robbery-murder special circumstance finding in light of Banks

and Clark notwithstanding prior opinion affirming the special 

circumstance finding].) 
13

finding based on Banks and Clark had to be made by petition for 

writ of habeas corpus. Although this position has been upheld in 

several court of appeal decisions, we rejected it in Harris, supra, 

__ Cal.App.5th ___, as have several other courts of appeal, as 

contrary to the language and intent of section 1170.95.

As we explained in Harris, supra, __ Cal.App.5th at 

page ___, a section 1170.95 petition challenges the murder

conviction, not the special circumstance finding. (See 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”].) To be 

sure, section 189, subdivision (e)(3), as amended by Senate Bill 

1437, is now “the same as the standard for finding a special 

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

provision expressly incorporates the latter.” (In re Taylor (2019) 

34 Cal.App.5th 543, 561; accord, York, at p. 258 [“[t]he language 

of section 189, subdivision (e)(3), as amended by Senate Bill 1437, 

tracks the language of the special circumstance provision”].) But 

“[w]hat permits a defendant convicted of felony murder to 

challenge his or her murder conviction based on the contention 

that he or she was not a major participant in the underlying 

felony who acted with reckless indifference to human life, are the 

changes Senate Bill 1437 made to sections 188 and 189, and in 

particular the addition of section 189, subdivision (e)(3), not the 

rulings in Banks and Clark.” (York, at p. 261.) Thus, Paulino’s 

petition is made possible by the changes made to section 189, not 

because of the clarifications made in Banks and Clark. (See 

§ 1170.95, subd. (a)(3) [allowing petition if “the petitioner could 
14

not be convicted of first or second degree murder because of 

changes to Section 188 or 189 made effective January 1, 2019”].)

Similarly, although Paulino’s jury was instructed that to 

find true the special-circumstance allegation under section 190.2, 

subdivisions (a)(17) and (d), it had to find he aided and abetted 

the robbery and kidnapping that led to the victim’s death while 

acting as a major participant with reckless indifference to human 

life, the same element now found in section 189, 

subdivision (e)(3), that pre-Banks/Clark finding, without more, 

does not preclude relief under section 1170.95. (See In re 

Scoggins (2020) 9 Cal.5th 667, 673-674 [“Where a decision 

clarifies the kind of conduct proscribed by a statute, a defendant 

whose conviction became final before that decision ‘is entitled to 

post-conviction relief upon a showing that his [or her] conduct 

was not prohibited by the statute’ as construed in the decision. 

[Citation.] “In such circumstances, it is settled that finality for 

purposes of appeal is no bar to relief, and that habeas corpus or 

other appropriate extraordinary remedy will lie to rectify the 

error’”]; York, supra, 54 Cal.App.5th at p. 262, review granted [“a

pre-Banks and Clark special circumstance finding—necessarily 

made on the basis of our former, and significantly different, 

understanding of what the terms ‘major participant’ in the 

underlying felony and ‘reckless indifference’ to human life 

meant—does not preclude relief under section 1170.95 as a 

matter of law”]; People v. Law (2020) 48 Cal.App.5th 811, 825, 

review granted July 8, 2020, S262490 [“the trial court erred by 

concluding the special circumstance finding, on its own, rendered 

Law ineligible for relief—that is, the court erred by failing to 

determine whether Law qualified as a major participant who 

acted with reckless indifference to human life under Banks and
15

Clark”]; People v. Torres, supra, 46 Cal.App.5th at p. 1180, review 

granted [because no court has affirmed the special circumstance 

findings at issue post-Banks and Clark, “[t]here is therefore a 

possibility that Torres was punished for conduct that is not 

prohibited by section 190.2 as currently understood”]; but see 

People v. Nunez (2020) 57 Cal.App.5th 78, 93, review granted 

Jan. 13, 2021, S265918) [disagreeing with York, Law and 

Torres].)

We disagree with the Attorney General’s additional 

argument that section 1170.95, subdivision (d)(2), supports his 

position that a pre-Banks/Clark felony-murder specialcircumstance finding necessarily has preclusive effect. That 

subdivision provides, “If there was a prior finding by a court or 

jury that the petitioner did not act with reckless indifference to 

human life or was not a major participant in the felony, the court 

shall vacate the petitioner’s conviction and resentence the 

petitioner.” The Attorney General posits a negative pregnant, 

contending that this provision means section 1170.95 relief is 

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

finding has been successfully overturned by a habeas petition. 

But 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

(fn. omitted), review granted; 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 
16

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”].) 

c. The record of conviction does not establish Paulino is 

ineligible for resentencing as a matter of law

Although the jury’s pre-Banks/Clark felony-murder specialcircumstance finding, without more, does not preclude 

resentencing under section 1170.95, the superior court was 

authorized to review the record of conviction, including this 

court’s opinion affirming Paulino’s convictions, to determine 

whether he was ineligible for resentencing under section 1170.95 

as a matter of law. (See Verdugo, supra, 44 Cal.App.5th at 

p. 330, review granted [“[t]he record of conviction might also 

include other information that establishes the petitioner is 

ineligible for relief as a matter of law because he or she was 

convicted on a ground that remains valid notwithstanding 

Senate Bill 1437’s amendments to sections 188 and 189”]; People 

v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted 

Mar. 18, 2020, S260410 [record must show defendant is 

“indisputably ineligible for relief”].) However, in making that 

determination—that is, in evaluating whether a petitioner has 

made a prima facie showing he or she is entitled to relief—the 

superior court cannot engage in factfinding, as the superior court 

did in this case. As the court of appeal explained in People v. 

Drayton, supra, 47 Cal.App.5th at page 980, “The trial court

should not evaluate the credibility of the petition’s assertions, but

it need not credit factual assertions that are untrue as a matter
17

of law—for example, a petitioner’s assertion that a particular

conviction is eligible for relief where the crime is not listed

in subdivision (a) of section 1170.95 as eligible for resentencing.

Just as in habeas corpus, if the record ‘contain[s] facts refuting

the allegations made in the petition . . . the court is justified in

making a credibility determination adverse to the petitioner.’ 

[Citation.] However, this authority to make determinations 

without conducting an evidentiary hearing pursuant to

section 1170.95, subdivision (d) is limited to readily ascertainable 

facts from the record (such as the crime of conviction), rather 

than factfinding involving the weighing of evidence or the 

exercise of discretion (such as determining whether the petitioner 

showed reckless indifference to human life in the commission of 

the crime).” (Accord, People v. Perez (2020) 54 Cal.App.5th 896, 

903-904, review granted Dec. 9, 2020, S265254; People v. Nguyen

(2020) 53 Cal.App.5th 1154, 1165-1166.)

Even without attempting to evaluate the significance of a 

post-Banks, pre-Clark order denying the petition for writ of 

habeas corpus, which was briefly described by the superior court 

in its ruling,11 Paulino’s status as a major participant in the 

11 As discussed, neither the petition for writ of habeas corpus 

nor the superior court’s order is in the appellate record. Without 

providing any additional detail about that proceeding, the 

Attorney General, while stating the issue “is not necessarily 

based on law of the case or collateral estoppel,” nonetheless 

argues, “A defendant’s prior failure to obtain Banks/Clark relief 

on habeas review necessarily means the existing special 

circumstance conviction remains in effect.” (But see Gomez v. 

Superior Court (2012) 54 Cal.4th 293, 305, fn. 6 [“the summary 

denial of a habeas corpus petition does not establish law of the 

case and does not have a res judicata effect in future 
18

kidnapping-robbery of Boykins seems irrefutable: At the outset 

of the crime, he used his car to block Jones and Boykins in the 

motel parking lot so his confederates could capture Boykins. 

Once Boykins was in Paulino’s car, Paulino used duct tape to 

restrain Boykins and drove around while the other two men 

searched Boykins for cash. Then Paulino kept Boykins captive, 

rather than releasing him, while the other two men searched 

Boykins’s home. Finally, at Hemsley’s direction Paulino drove 

the group to a secluded area near a freeway off-ramp, where 

Hemsley shot Boykins multiple times.

The evidence of Paulino’s reckless indifference to human 

life when viewed in light of Clark, supra, 63 Cal.4th 522 is not 

nearly as clear. Most significantly, Paulino consistently 

insisted—during police interviews and again when testifying at 

trial—that he tried to persuade Hemsley and McKenzie to let 

Boykins go free once they learned he had nothing worthwhile to 

steal and that his continued participation in holding Boykins and 

driving to the murder site was prompted by his own fear of the 

other two perpetrators. In addition, although Paulino was 

carrying a gun, he testified he never took it out during the course 

of the robbery-kidnapping and also testified in the prior robbery 

he had committed with Hemsley the victim had neither been 

beaten nor shot. That testimony, not contradicted at trial, was

not inconsistent with a pre-Banks/Clark finding of reckless 

indifference, but precludes a finding, as a matter of law, that 

Paulino was willing to assist in killing Boykins if necessary to 

successfully complete the robbery. (See Clark, at p. 617 [reckless 

indifference encompasses a willingness to assist another in 

proceedings”]; People v. Torres, supra, 46 Cal.App.5th at p. 1180, 

fn. 6, review granted [same].)
19

killing to achieve a particular goal, even if the victim’s death was 

not specifically intended].) Factfinding following an evidentiary 

hearing is necessary to determine whether Paulino 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.

DISPOSITION

The order denying Paulino’s section 1170.95 petition is 

reversed, and the matter remanded with directions to issue an 

order to show cause and to proceed in accordance with 

section 1170.95, subdivision (d). 

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.