Filed 10/20/21 P. v. Mitchell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RICKY MARSDEN MITCHELL,

Defendant and Appellant.

F081153

(Super. Ct. No. SC052002A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Michael G. 

Bush, Judge.

Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Eric L. 

Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Hill, P. J., Poochigian, J. and Detjen, J.
2.

INTRODUCTION

In 1993, petitioner Ricky Marsden Mitchell entered a plea of no contest to the 

murder of Verlin Mitchell1(Pen. Code,2 § 187, subd. (a)), and admitted the special 

circumstance of murder during the commission or attempted commission of a burglary 

(§ 190.2, former subd. (a)(17)(VII)).

3

 For this offense, he was sentenced to a term of life 

without the possibility of parole. 

In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. 

The court summarily denied the petition without stating its reasons. 

On appeal, petitioner asserts he established a prima facie claim for resentencing 

relief, and the court therefore erred in denying the petition without issuing an order to 

show cause and holding an evidentiary hearing. We conclude the court did not err in 

summarily denying the petition without issuing an order to show cause or holding an 

evidentiary hearing because the record establishes petitioner is ineligible for resentencing 

as a matter of law. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The facts underlying the offenses are not relevant to our determination, and we 

therefore summarize them only briefly.4 

1 Although petitioner and the decedent share the same last name, they do not appear 

to be related. To avoid confusion, we refer to Verlin by his first name. No disrespect is 

intended.

2 Undesignated statutory references are to the Penal Code.

3 Petitioner was originally charged with additional offenses, as described below.

4 We deny petitioner’s November 18, 2020 request for judicial notice of the record 

in his prior appeal, People v. Mitchell, F020913. (See People v. Sanders (2003) 31 

Cal.4th 318, 323, fn. 1 [declining to take judicial notice of documents that were not 

before the trial court]; see also People v. Young (2005) 34 Cal.4th 1149, 1171, fn. 3 

[judicial notice cannot be taken of any matter that is irrelevant].)

Our factual summary is derived from records contained in the record on appeal in 

the instant case, specifically a summary of police reports contained in the probation 
3.

On October 5, 1992, Verlin was found lying face down, bound, and dead on his 

bed from multiple gunshot wounds to the head and a broken neck caused by either a blow 

to the head with an object or by being “stomped on.” The residence appeared to have 

been ransacked and both his vehicles were missing. Petitioner, Mike G., Charles O., and 

Larry F.5 were stopped that afternoon in New Mexico in one of Verlin’s vehicles and 

arrested. Two firearms were found in the vehicle. Each of the individuals made 

incriminating statements. Relevant here, petitioner told police that Mike planned the 

burglary and murder, hit Verlin on the head and neck with an ax, and then shot Verlin. 

Charles told police that petitioner and Mike were both armed, and Mike shot Verlin twice 

after being urged to do so by petitioner. Mike told police that petitioner was armed, 

directed the others to restrain Verlin, and told Mike he had to shoot Verlin or petitioner 

would kill Mike’s parents. Larry’s statements were generally consistent with the others, 

although he was unsure who killed the victim. 

On November 13, 1992, the Kern County District Attorney charged petitioner with 

premeditated murder (§ 187, subd. (a); count 1), with the special circumstance that the 

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

(§ 190.2, former subd. (a)(17)(VII)); two counts of residential burglary (former § 460.1; 

counts 2 & 5); and two counts of vehicle theft (Veh. Code, § 10851, subd. (a); counts 3 

& 4). As to count 1, the People also alleged petitioner personally used a firearm 

(§ 12022.5, subd. (a)), and a principal was armed with a firearm (§ 12022, subd. (a)(1)). 

On September 29, 1993, petitioner entered a plea of no contest to count 1, and 

admitted the burglary special circumstance. The parties stipulated that petitioner was not 

the shooter in the murder. The remaining counts and allegations were dismissed. 

officer’s report. The parties previously stipulated that the police reports provided part of

the factual basis for the plea. 

5 Mike, Charles, and Larry were minors at the time of the offense. Charles and 

Larry are brothers. 
4.

On November 29, 1993, the court sentenced petitioner on count 1 to a term of life 

without the possibility of parole. 

On February 7, 2019, petitioner, in propria persona, filed a petition for 

resentencing pursuant to section 1170.95. In the form petition, petitioner stated that a 

complaint, information, or indictment was filed against him that allowed him to be 

prosecuted under a theory of felony murder or murder under the natural and probable 

consequences doctrine; he pled guilty or no contest to first or second degree murder; and 

he could not now be convicted of first or second degree murder because of changes made 

to sections 188 and 189, effective January 1, 2019. He further averred that he was not the 

actual killer, did not act with an intent to kill, and was not a major participant in the 

underlying felony or did not act with reckless indifference to human life in the course of 

the crime. 

The court appointed counsel to represent petitioner. 

On March 5, 2019, the People filed an opposition to the petition and a motion to 

dismiss the petition, both arguing section 1170.95 is unconstitutional.

6

 On March 29, 

2019, the People filed an opposition on the merits to petitioner’s petition, arguing that the 

facts, as testified to at the preliminary hearing, demonstrated petitioner was a major 

participant in the crime and acted with reckless indifference to human life. 

On May 15, 2019, petitioner’s counsel was relieved due to a conflict of interest 

and new counsel was appointed. 

On September 19, 2019, the People filed a motion to dismiss the petition arguing 

that the facts, as testified to at the preliminary hearing, demonstrated petitioner was a 

major participant in the crime and acted with reckless indifference to human life, and 

additionally aided and abetted in the murder with the intent to kill. The People also 

6 The motion was fully briefed and eventually denied by the court. 
5.

argued petitioner’s admission of the burglary-murder special circumstance constituted an 

admission that his conviction did not fall within the provisions of section 1170.95. 

On April 14, 2020, petitioner filed a reply, arguing that the record did not rebut his 

assertion that he is entitled to relief and the court could not resolve whether petitioner 

was a major participant who acted with reckless indifference to human life without 

resolving factual questions at an evidentiary hearing. 

On April 17, 2020, the People filed a reply to petitioner’s reply, arguing once 

again that the special circumstance admission rendered petitioner ineligible for relief. 

On May 11, 2020, the court denied the petition in a minute order without 

providing a statement of reasons. 

This timely appeal followed. 

DISCUSSION

I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95 

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 

Reg. Sess.) “to amend the felony murder rule and the natural and probable consequences 

doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person 

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

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

(Stats. 2018, ch. 1015, § 1, subd. (f).) The bill accomplished this task by adding three 

separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 

(Gentile).) First, to amend the natural and probable consequences doctrine, the bill added 

section 188, subdivision (a)(3), which requires a principal to act with malice aforethought 

before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at 

pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189, 

subdivision (e):

“A participant in the perpetration or attempted perpetration of [qualifying 

felonies] in which a death occurs is liable for murder only if one of the 
6.

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.”7 (§ 189, subd. (e); accord, Gentile, at p. 842.)

Finally, the bill “added section 1170.95 to provide a procedure for those convicted of 

felony murder or murder under the natural and probable consequences doctrine to seek 

relief under the two ameliorative provisions above.”

8

 (Gentile, at p. 843.)

“Section 1170.95 lays out a process for a person convicted of felony murder or 

murder under a natural and probable consequences theory to seek vacatur of his or her 

conviction and resentencing.” (Gentile, supra, 10 Cal.5th at p. 853.) First, “an offender 

must file a petition in the sentencing court averring that: ‘(1) A complaint, information, 

or indictment was filed against the petitioner that allowed the prosecution to proceed 

under a theory of felony murder or murder under the natural and probable consequences 

doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder 

following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be 

convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could 

not be convicted of first or second degree murder because of changes to Section 188 or 

189 made effective January 1, 2019.’ (§ 1170.95, subd[]. (a)(1)-(3); see also § 1170.95,

subd. (b)(1)(A).) Additionally, the petition shall state ‘[w]hether the petitioner requests 

the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply 

with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of 

7 Additionally, section 189 was amended to allow for felony-murder liability where 

the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57 

Cal.App.5th 666, 672, review granted Feb. 24, 2021, S266336.)

8 The Legislature recently passed, and the Governor signed, a bill amending section 

1170.95. (Sen. Bill No. 775 (2021-2022 Reg. Sess.).) The amendments are not yet 

effective (Cal. Const., art. IV, § 8, subd. (c)(1)) and, in any event, would not alter our 

analysis. We quote from the version of section 1170.95 presently in effect.
7.

another petition.’ (§ 1170.95, subd. (b)(2).)” (People v. Lewis (2021) 11 Cal.5th 952, 

959-960 (Lewis).)

Where the petition complies with the requirements of section 1170.95, subdivision 

(b)(1), counsel must be appointed, if requested. The prosecutor must file a response and 

the petitioner may file a reply. The trial court must then review the petition to determine 

if the petitioner has made a prima facie showing that he or she is entitled to relief. 

(§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this 

determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.) 

However, the prima facie inquiry is limited and, at this stage of the proceedings, the court 

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

discretion.’ ” (Id. at pp. 971-972.) 

If the court determines the petitioner has met his or her prima facie burden, “the 

trial court must issue an order to show cause and hold a hearing to determine whether to 

vacate the murder conviction and to resentence the petitioner on any remaining counts.

(§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a 

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

subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of conviction or 

offer new or additional evidence to meet their respective burdens.’ (Ibid.)” (Gentile,

supra, 10 Cal.5th at p. 853.)

To demonstrate prejudice from the denial of a section 1170.95 petition before the 

issuance of an order to show cause, the petitioner must show it is reasonably probable 

that, absent error, his or her petition would not have been summarily denied without an 

evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson

(1956) 46 Cal.2d 818, 836.)

II. The Petition was Properly Denied 

Petitioner contends he set forth a prima facie claim for relief and the trial court 

erred in denying his petition without issuing an order to show cause. We conclude the 
8.

petition was properly denied at the prima facie stage because petitioner’s admission of 

the special circumstance establishes petitioner is ineligible for resentencing as a matter of 

law. 

To be eligible for relief pursuant to section 1170.95, petitioner must not have been 

the actual killer, must not have acted with the intent to kill, and must not have been a 

major participant in the underlying felony who acted with reckless indifference to human 

life. (§§ 189, subd. (e), 1170.95, subd. (a)(3); see Gentile, supra, 10 Cal.5th at p. 842.) 

Here, petitioner admitted a burglary-murder special circumstance pursuant to section 

190.2, subdivision (a)(17). In so doing, petitioner admitted he acted “with reckless 

indifference to human life and as a major participant” in aiding or abetting the 

commission of the underlying felony. (§ 190.2, subd. (d); People v. Gutierrez-Salazar

(2019) 38 Cal.App.5th 411, 419.) In other words, “[t]he language of the special 

circumstance tracks the language of Senate Bill [No.] 1437 and the new felony-murder 

statutes.” (Gutierrez-Salazar, at p. 419.) By admitting this special circumstance, 

petitioner admitted the facts necessary to sustain a felony-murder conviction under the 

amended law. Petitioner’s admission on the burglary-murder special circumstance 

establishes that he is ineligible for resentencing as a matter of law.

Nonetheless, petitioner argues the special circumstance admission, standing alone, 

is insufficient to render him ineligible for resentencing as a matter of law. In support, he 

relies on People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 

Cal.4th 522 (Clark), both decided after his conviction was final. “Banks and Clark

‘clarified “what it means for an aiding and abetting defendant to be a ‘major participant’ 

in a crime who acted with a ‘reckless indifference to human life.’ ” ’ [Citation.] Banks

identified certain factors to consider in determining whether a defendant was a major 

participant; Clark identified factors to guide the determination of whether the defendant 

acted with reckless indifference to human life.” (People v. Gomez (2020) 52 Cal.App.5th 

1, 13, fn. 5, review granted Oct. 14, 2020, S264033 (Gomez).) Courts of Appeal are split 
9.

on the question of whether a special circumstance finding entered prior to Banks and 

Clark renders a petitioner ineligible for section 1170.95 resentencing relief as a matter of 

law (see People v. Jones (2020) 56 Cal.App.5th 474, 478-479 [collecting cases], review 

granted Jan. 27, 2021, S265854 (Jones)), and our Supreme Court has granted review to 

decide the issue (People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review 

granted Mar. 10, 2021, S266606). 

Courts which have held that a pre-Banks and Clark felony-murder specialcircumstance finding bars section 1170.95 resentencing relief have reasoned that Banks 

and Clark merely clarified the law as it always was. (Jones, supra, 56 Cal.App.5th at 

pp. 482, 484, review granted; accord, People v. Nunez (2020) 57 Cal.App.5th 78, 92, 

review granted Jan. 13, 2021, S265918; People v. Allison (2020) 55 Cal.App.5th 449,

458.) These courts further note that our Supreme Court does not require juries to be 

instructed on the Banks and Clark clarifications. “Rather, while CALCRIM No. 703 now 

includes optional language drawn from Banks and Clark regarding the factors a jury may 

consider, ‘[t]he bench notes to the instruction state that Banks “stopped short of holding 

that the court has a sua sponte duty to instruct on those factors,” and Clark “did not hold 

that the court has a sua sponte duty to instruct on those factors.” ’ ” (Nunez, at pp. 92-93;

accord, Jones, at p. 484; Allison, at pp. 458-459.) Thus, these courts found “no basis to 

conclude as a general matter that a pre-Banks and Clark jury was instructed differently 

than a post-Banks and Clark jury, or resolved different factual issues, answered different 

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

These courts have also held that an attack on a special circumstance finding in a 

section 1170.95 proceeding effectively constitutes a collateral attack on the judgment. 

(People v. Galvan (2020) 52 Cal.App.5th 1134, 1142, review granted Oct. 14, 2020, 

S264284; Gomez, supra, 52 Cal.App.5th at p. 16, review granted.) According to these 

courts, a petitioner who wishes to argue the special circumstance finding is invalid under 

current law must first seek to invalidate that finding through a petition for writ of habeas 
10.

corpus before seeking resentencing pursuant to section 1170.95. (Galvan, at p. 1142; 

Gomez, at p. 17; Jones, supra, 56 Cal.App.5th at p. 485, review granted.) These courts 

reason that a contrary interpretation “would read into section 1170.95 a new procedure 

allowing petitioners to ignore a special circumstance finding—no matter how well 

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

petitioners would be allowed to relitigate a prior jury finding at an evidentiary hearing 

where the prosecution bears the burden of proving the truth of the finding, beyond a 

reasonable doubt, a second time.” (Jones, at p. 485.)

On the other hand, courts that have found a special circumstance finding 

insufficient to render a petitioner ineligible for relief have reasoned that Banks and Clark

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

manner than courts had previously construed the statute.” (People v. Torres (2020) 46 

Cal.App.5th 1168, 1179, review granted June 24, 2020, S262011, abrogated on another

ground by Lewis, supra, 11 Cal.5th at pp. 962-963; accord, People v. Harris (2021) 60 

Cal.App.5th 939, 958, review granted Apr. 28, 2021, S267802.) Thus, these courts 

surmised that a petitioner with a pre-Banks and Clark special circumstance finding may 

have been convicted based on “conduct that is not prohibited by section 190.2 as 

currently understood.” (Torres, at p. 1180; accord, Harris, at p. 958; People v. York

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

Smith (2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835.) To the 

extent the jury’s finding on a felony-murder special circumstance is legally insufficient 

under Banks and Clark, it cannot refute a prima facie showing of entitlement to 

resentencing relief. (People v. Secrease (2021) 63 Cal.App.5th 231, 256.) Accordingly, 

in considering whether a petitioner is entitled to relief pursuant to section 1170.95, the 

trial court must first determine whether “the evidence presented at trial was sufficient to 

support the felony-murder special-circumstance finding under Banks and Clark.” 

(Secrease, at p. 264.) 
11.

A panel of this court has recently resolved to follow the line of authority holding 

that a special circumstance finding precludes relief as a matter of law. (People v. 

Simmons (2021) 65 Cal.App.5th 739, 748-749, review granted Sept. 1, 2021, S270048.) 

We agree. Banks and Clark did not state a new rule of law. Rather, they relied on the 

United States Supreme Court’s decisions in Enmund v. Florida (1982) 458 U.S. 782 and 

Tison v. Arizona (1987) 481 U.S. 137 to clarify principles that had long been in existence 

at the time petitioner was convicted. (See In re Miller (2017) 14 Cal.App.5th 960, 978; 

accord, People v. Allison, supra, 55 Cal.App.5th at p. 458; Gomez, supra, 52 Cal.App.5th 

at p. 13, fn. 5, review granted.) Enmund prohibited felony-murder liability for a 

defendant that “did not commit the homicide, was not present when the killing took 

place, and did not participate in a plot or scheme to murder,” and explained that, to be 

liable for felony murder, the aider and abettor must himself “kill, attempt to kill, or intend 

that a killing take place or that lethal force will be employed.” (Enmund, at pp. 795, 

797.) Tison held that, “major participation in the felony committed, combined with 

reckless indifference to human life, is sufficient to satisfy the Enmund culpability 

requirement.” (Tison, at pp. 151, 158.) As Banks noted, this language from Tison was 

later codified by the California electorate in section 190.2, subdivision (d). (Banks,

supra, 61 Cal.4th at p. 800.) To the extent Banks and Clark illuminated factors a fact 

finder might consider in determining whether a defendant was a major contributor who 

acted with reckless indifference to human life, they drew those factors from Edmund and 

Tison. (See Banks, at pp. 801, 803; see also Clark, supra, 63 Cal.4th at pp. 615, 618-

623.) These principles existed when petitioner was convicted. There is no basis to 

conclude petitioner’s admission involved different standards than those described in 

Banks and Clark.

Petitioner is ineligible for resentencing as a matter of law, and the court was not 

required to issue an order to show cause or hold an evidentiary hearing. The petition was 

properly denied. (Lewis, supra, 11 Cal.5th at pp. 970-971.) 
12.

DISPOSITION

The order is affirmed.