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Filed 11/1/22 P. v. Thompson CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

BERTRAND THOMPSON,

Defendant and Appellant.

C090225

(Super. Ct. Nos. 

STK-CR-CNV-1998-0016794, 

SP062695C)

OPINION ON TRANSFER

In 1999, a jury found defendant Bertrand Thompson guilty of three murders 

occurring during two robberies, and they also found true robbery-murder special 

circumstances for each of the murders. Defendant petitioned the trial court for 

resentencing under Penal Code section 1172.61 based on changes made to the felonymurder rule by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). The trial 

1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, 

the Legislature renumbered former section 1170.95 as section 1172.6. (Stats. 2022, ch. 

58, § 10.) There were no substantive changes to the statute. Although defendant filed his 

petition under former section 1170.95, we cite the current section number throughout this 

opinion.
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court denied defendant’s petition, finding that the record established defendant was

ineligible for resentencing because he was the actual killer in two of the murders and the 

jury found true special circumstances for the third murder. On appeal, defendant initially

argued he was entitled to counsel and a hearing on the merits of his petition.

In an unpublished opinion, we affirmed the order denying defendant’s petition for 

resentencing. (People v. Thompson (Dec. 16, 2020, C090225) [nonpub. opn.].) The 

Supreme Court granted review and transferred the matter back to us with directions to 

vacate our decision and reconsider the cause in light of its recent opinions in People v. 

Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952

(Lewis). Defendant and the People declined to file a posttransfer brief. 

We now find the trial court’s denial of defendant’s petition is inconsistent with 

section 1172.6, Lewis, and Strong, and accordingly reverse and remand for further 

proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was involved in the murder of three people during two separate 

robberies. (People v. Webb et al. (Apr. 3, 2002, C034507) [nonpub. opn.].)2 In 1999, the 

jury found defendant guilty of three counts of first degree murder (§ 187) and two counts 

of second degree robbery. (§ 211.) They also found true special circumstance allegations

that defendant was armed in the commission of one of the murders and one of the 

robberies (§ 12022, subd. (a)), that he personally used a firearm in the commission of 

another murder and the other robbery (§ 12022.5, subd. (a)), two of the murders were 

2 On our own motion, we take judicial notice of this prior decision. (Evid. Code, 

§ 452, subd. (d).) We provide this summary of facts from the prior opinion in 

defendant’s direct appeal solely for context and do not rely on these facts for our analysis 

or disposition here. (See § 1172.6, subd. (d)(3).)
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multiple murders (§ 190.2, subd. (a)(3)), and the special circumstances that all three

murders were committed during robberies. (§ 190.2, subd. (a)(17)(A).) 

Defendant “was sentenced to a determinate term of eight years and three 

consecutive indeterminate terms of life without the possibility of parole.” Defendant 

appealed his conviction, arguing (1) instructional error on the robbery counts;

(2) ineffective assistance of counsel; and (3) the robbery counts should have been stayed 

under section 654. We stayed the sentences imposed for the robbery convictions but 

otherwise affirmed. 

In January 2019, defendant filed a petition for resentencing under section 1172.6. 

Defendant declared in his petition that the prosecution proceeded “under a theory of 

felony murder or murder under the natural and probable consequences doctrine,” he “was 

convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural 

and probable consequences doctrine,” and he “could not now be convicted of 1st or 2nd 

degree murder.” He also requested appointment of counsel during the resentencing 

process. 

The trial court issued an interim order appointing defendant’s trial counsel to 

represent him. The prosecutor filed a response to the petition, arguing defendant was not 

eligible for resentencing under section 1172.6. At the hearing on the petition, defendant’s 

counsel had not been aware of his assignment and therefore did not prepare a brief in 

support of the petition. Instead of permitting a response to the prosecutor’s opposition, 

the court vacated the order appointing counsel stating, “I’m not going to find prima facie. 

I don’t believe [defendant] qualifies under [Senate Bill] 1437 because he was convicted 

as the actual killer on two of the homicides. It was the third one that I was concerned 

about, but now that I go back and review it, he was convicted of the special circumstance, 

which also makes him ineligible under this, so the Court is going to vacate its previous 

order.” The court then denied defendant’s petition by form written order, checking a box

stating “[t]he Petitioner has not made a prima facie showing.” (Italics omitted.) 
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DISCUSSION

Defendant argues on appeal that the trial court violated section 1172.6 because it

failed to appoint substitute counsel and conduct a hearing on the allegations of 

defendant’s petition prior to its denial. We find the trial court did not adhere to the prima 

facie procedures. 

I

Legal Standards

Senate Bill 1437 was enacted to “amend the felony murder rule and the natural 

and probable consequences doctrine . . . to ensure that murder liability is not imposed on 

a person who is not the actual killer, did not act with the intent to kill, or was not a major 

participant in the underlying felony who acted with reckless indifference to human life.” 

(Stats. 2018, ch. 1015, § 1(f).) Senate Bill 1437 achieves these goals by amending 

section 188 to require that a principal act with express or implied malice (§ 188, as 

amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state that a 

person can be liable for felony murder only if (1) “[t]he person was the actual killer”; 

(2) the person, with an intent to kill, was an aider or abettor in the commission of murder 

in the first degree; or (3) “[t]he person was a major participant in the underlying felony 

and acted with reckless indifference to human life . . . .” (§ 189, subd. (e), as amended by 

Stats. 2018, ch. 1015, § 3.)

Senate Bill 1437 also added section 1172.6 to provide a resentencing petition 

process for any “person convicted of felony murder or murder under the natural and 

probable consequences doctrine.” (§ 1172.6, subd. (a).) There have been changes made 

to section 1172.6 since the trial court denied defendant’s petition. (Stats. 2021, ch. 551, 

§ 2.) These changes are retroactively applied to defendant’s case, which is not yet final. 

(People v. Basler (2022) 80 Cal.App.5th 46, 56 [“These procedures within section 

[1172.6] apply retroactively to defendants whose cases are not yet final”].)
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The new section 1172.6 permits those convicted of felony murder or murder under 

the natural and probable consequences doctrine to petition the sentencing court to vacate 

the conviction and to be resentenced on any remaining counts where: “(1) A complaint, 

information, or indictment was filed against the petitioner that allowed the prosecution to 

proceed under a theory of felony murder, murder under the natural and probable 

consequences doctrine or other theory under which malice is imputed to a person based 

solely on that person’s participation in a crime . . . . [¶] (2) The petitioner was convicted 

of murder . . . following a trial . . . . [¶] (3) The petitioner could not presently be 

convicted of murder . . . because of changes to Section 188 or 189 made effective January 

1, 2019.” (§ 1172.6, subd. (a).) 

If a petitioner files a facially sufficient petition, the trial court shall appoint 

counsel, if requested, receive briefing from the parties, and “shall hold a hearing to 

determine whether the petitioner has made a prima facie case for relief” under section 

1172.6, subdivision (c). (§ 1172.6, subds. (b)(3), (c); Lewis, supra, 11 Cal.5th at pp. 961-

962.) “If the petitioner makes a prima facie showing that the petitioner is entitled to 

relief, the court shall issue an order to show cause.” (§ 1172.6, subd. (c).) If the court 

does not issue an order to show cause, it “shall provide a statement fully setting forth its 

reasons for doing so.” (§ 1172.6, subd. (c).)

When an order to show cause is issued, the court must hold a hearing within 60 

days to determine whether to vacate the murder conviction. (§ 1172.6, subd. (d)(1).) At 

this third and final stage of the proceeding, the prosecution has the burden of proving,

“beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder 

under California law as amended by the changes to Section 188 or 189 made effective 

January 1, 2019. . . . A finding that there is substantial evidence to support a conviction 

for murder, attempted murder, or manslaughter is insufficient to prove, beyond a 

reasonable doubt, that the petitioner is ineligible for resentencing. . . .” (§ 1172.6, subd. 

(d)(3).)
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The Supreme Court clarified the prima facie analysis in Lewis, stating the “ ‘prima 

facie bar was intentionally and correctly set very low.’ ” (Lewis, supra, 11 Cal.5th at p. 

972.) It explained trial courts may rely on the record of conviction, but a “ ‘court should 

not reject the petitioner’s factual allegations on credibility grounds without first 

conducting an evidentiary hearing.’ [Citations.] ‘However, if the record, including the 

court’s own documents, “contain[s] facts refuting the allegations made in the petition,”

then “the court is justified in making a credibility determination adverse to the 

petitioner.” ’ ” (Lewis, at p. 971.) 

II

Special Circumstances after Banks and Clark3

Section 190.2, subdivision (d) provides that for the purposes of those special 

circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), 

which include robbery and burglary, an aider and abettor must have been a “major 

participant” and have acted “with reckless indifference to human life.” (§ 190.2, subd.

(d); Banks, supra, 61 Cal.4th at p. 798.) Thus, on its face, a special circumstance finding 

satisfies the requirements for accomplice murder liability even after Senate Bill 1437. 

(§ 189, subd. (e).)

Since defendant’s conviction, however, the Supreme Court has refined the analysis 

for who qualifies as a major participant acting with reckless indifference to human life in 

Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. In Banks, the court 

identified a series of considerations, none of which are “necessary, nor is any one of them 

necessarily sufficient,” for determining whether a defendant was a major participant: 

“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? 

3 People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 

63 Cal.4th 522 (Clark). 
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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 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, at p. 803, fn. 

omitted.)

Similarly, in Clark, the court found “ ‘reckless indifference’ ” to “encompass[] a 

willingness to kill (or to assist another in killing) to achieve a distinct aim.” (Clark, 

supra, 63 Cal.4th at p. 617.) It also provided a nonexhaustive list of factors to consider in 

making 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 of any threat the confederates might 

represent, and efforts taken to minimize risks. (Id. at pp. 618-623.)

In Strong, the Supreme Court addressed the impact of Banks/Clark on section 

1172.6 petitions for defendants with special circumstance findings. The court found 

“Banks and Clark both substantially clarified the law governing findings under [] section 

190.2, subdivision (d)” such that they “represent the sort of significant change that has 

traditionally been thought to warrant reexamination of an earlier-litigated issue.” 

(Strong, supra, 13 Cal.5th at pp. 706, 717.) Consequently, prior special circumstance 

findings made before Banks and Clark “do not preclude a defendant from making out a 

prima facie case for relief under Senate Bill 1437. This is true even if the trial evidence 

would have been sufficient to support the findings under Banks and Clark.” (Strong, at p. 

710.) Thus, a defendant with a special circumstance finding applying for relief through a 

section 1172.6 petition may still be ineligible for relief, but it must be determined beyond 

a reasonable doubt the defendant was a major participant who acted with reckless 

indifference to human life under the Banks/Clark analyses. (Strong, at p. 720.) And 

though a special circumstance finding can be challenged through a habeas corpus 
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petition, “nothing in section 1172.6 says that a defendant must always do so before 

seeking resentencing.” (Strong, at p. 713, italics omitted.)

III

Prima Facie Errors

The trial court here reviewed the record of conviction and concluded defendant did 

not make a prima facie showing of eligibility because he was the actual killer for two 

murders and that the jury found true special circumstances for the third murder; the court 

did this all without any briefing from defense counsel, holding a prima facie hearing, or 

fully explaining its reasons for not issuing an order to show cause. These clearly violate 

the procedures now afforded to petitioners under section 1172.6.

Procedural errors during the prima facie stage are prejudicial if the petitioner can 

show it is “ ‘reasonably probable’ ” the petition would not have been denied absent the 

errors. (Lewis, supra, 11 Cal.5th at p. 974.) Errors at the prima facie stage can be 

harmless if the defendant is ineligible for relief as a matter of law. (See People v. Flores

(2022) 76 Cal.App.5th 974, 987-989 [determining whether prima facie errors were 

overcome by the defendant’s ineligibility as a matter of law].)

The errors here were not harmless. The trial court found that defendant’s preBanks and pre-Clark special circumstance finding rendered him ineligible as a matter of 

law for resentencing on the third conviction. This finding is no longer valid under 

Strong. Defendant may well have been a major participant who acted with reckless 

indifference to human life in all three convictions under the new Banks/Clark standards. 

But the court can only make this determination after an evidentiary hearing under section 

1172.6, subdivision (d), and must do so under the beyond-a-reasonable-doubt standard. 

As for the other two murder convictions, the trial court provided no basis for its 

finding that defendant was the “actual killer.” To find defendant failed to make a prima 

facie case on this basis, there must be records in the court’s file necessarily determining 

as a matter of law defendant was the actual killer, such as with jury instructions, verdicts, 
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or stipulations made at defendant’s earlier trial. (See People v. Harden (2022) 81 

Cal.App.5th 45, 52 [“if the record shows that the jury was not instructed on either the 

natural and probable consequences or felony-murder doctrines, then the petitioner is 

ineligible for relief as a matter of law”].) Due to the lack of briefing on this issue and 

lack of reasoning provided by the trial court, we cannot determine whether that is the case 

here for these convictions, so it is reasonably probable the petition would not have been 

denied had the proper procedures been followed.

Consequently, we reverse the trial court’s order denying defendant’s petition and 

remand for it to conduct the prima facie procedures under section 1172.6, subdivision (c), 

Lewis, and Strong. If it cannot determine defendant is ineligible as a matter of law on

any of the convictions, it must issue an order to show cause and hold a hearing under 

section 1172.6, subdivision (d).

DISPOSITION

The trial court’s order denying defendant’s section 1172.6 petition is reversed and 

the matter is remanded for the trial court to conduct proceedings consistent with section 

1172.6, subdivision (c).

 KRAUSE , J.

We concur:

 ROBIE , Acting P. J.

 BOULWARE EURIE , J.