Filed 2/10/23 P. v. Guzman CA5

Opinion following transferfrom Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

JOSE PEDRO GUZMAN,

Defendant and Appellant.

F081436

(Super. Ct. No. 04CM0295-003)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Valerie R. 

Chrissakis, Judge.

Cliff Gardner, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. 

Indermill, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for 

Plaintiff and Respondent.

-ooOoo-

* Before Poochigian, Acting P. J., Franson, J. and Smith, J.
2.

INTRODUCTION

In 2005, a jury convicted petitioner Jose Pedro Guzman of the first degree murder 

of Paul Lemos (Pen. Code,1 § 187, subd. (a), count 1). The jury found true the special 

circumstance that petitioner committed the murder while engaged in the commission or 

attempted commission of robbery (§ 190.2, subd. (a)(17)(A)).2 The trial court sentenced 

petitioner to a term of life without the possibility of parole and imposed a consecutive 

25-year-to-life term for a firearm enhancement (§ 12022.53, subds. (d), (e)(1)) and a 

consecutive one-year prior prison term enhancement pursuant to section 667.5, former 

subdivision (b).3 (People v. Guzman (Sept. 21, 2006, F048683) [nonpub. opn.] 

(Guzman).) 

In 2019, petitioner filed a petition for resentencing on his murder conviction 

pursuant to section 1172.6 (former § 1170.95).4 The court summarily denied the petition 

at the prima facie stage finding that petitioner was a major participant who acted with 

reckless indifference to human life, a disqualifying factor pursuant to section 1172.6.

On appeal, petitioner contends he has established a prima facie case for 

entitlement of relief because the special circumstance finding cannot establish his 

ineligibility for resentencing as a matter of law because his conviction predates our 

1 All further statutory references are to the Penal Code unless otherwise specified. 

2 The jury found true additional enhancements, as described below.

3 Section 1171.1, subdivision (a) states, “[a]ny sentence enhancement that was 

imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for 

any enhancement imposed for a prior conviction for a sexually violent offense . . . is 

legally invalid.” Petitioner has not raised the applicability of this provision to his 

sentence in the trial court, and we will not address this issue in the opinion. However, 

petitioner retains any remedies to address this in the future. 

4 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with 

no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the current section 1172.6 

in this opinion.
3.

Supreme Court’s decisions in Banks/Clark,

5 which clarified the meaning of “major 

participant” and “reckless indifference to human life.” 

While petitioner’s appeal was pending, our Supreme Court held a pre-Banks/Clark

special circumstance finding does not render a section 1172.6 petitioner ineligible for 

relief as a matter of law. (People v. Strong (2022) 13 Cal.5th 698 (Strong).) Therefore, 

based on Strong, we must vacate the trial court’s order and remand the matter for further 

proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are from our nonpublished opinion in petitioner’s prior direct appeal.6

“. . . Accomplice Testimony

“Laura Holt was with [petitioner], [Jose] Perez, and [Eduardo] 

Hernandez on December 29, 2003. They spent part of the evening drinking 

at someone’s house in Laton, and then Holt drove the group in her car to a 

basketball game in Riverdale. As it turned out, they did not attend the 

game and after a short period of time they returned to Laton and went to the 

home of Jose [R.] . . . .

“Holt, [petitioner], Hernandez and Perez smoked methamphetamine 

with [Jose R.], joined by Anthony [Ru.] . . . . [Petitioner], Hernandez and 

Perez began talking about robbing someone. [Petitioner] asked [Jose R.]

for a gun. [Jose R.] did not want to give it to him. [Petitioner] told [Jose

R.] that he was not going to shoot the gun; he only needed it to scare 

someone while he robbed them. [Jose R.] gave the gun to [petitioner]. 

5 People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63 

Cal.4th 522 (Clark).

6 We previously granted petitioner’s “APPLICATION TO INCORPORATE BY 

REFERENCE PURSUANT TO RULE 8.147” the prior record in Guzman, supra, 

F048683. We provide these facts from the record for background purposes because they 

were cited by both parties in their briefs. However, we do not rely on these facts in 

resolving the issues presented in this appeal. (See § 1172.6, subd. (d)(3).) 

Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their 

first names. No disrespect is intended
4.

“At trial, Holt was shown a picture of a gun, and testified that the 

gun looked like the gun [Jose R.] gave to [petitioner]. 

“Holt, [petitioner], Hernandez and Perez left in Holt’s car. Holt was 

driving. They drove around trying to decide where to go to rob someone. 

While driving around, Perez, [petitioner] and Hernandez talked about the 

robbery. They discussed stealing a vehicle with a stereo system. They 

drove to Hanford to find their target. They drove around the Hanford mall 

parking lot to look at cars. They did not find anything that suited their 

purposes. 

“Discussions continued, and Perez said he wanted to do a carjacking. 

Hernandez wanted to do a home invasion. [Petitioner] did not join in this 

discussion. [Petitioner] and Perez argued over who was going to possess 

the gun. [Petitioner] finally let Perez have his way and possess the gun. 

The gun had been loaded previously in the car by [petitioner]. 

“The group then drove to a residential area and looked around. 

Again finding nothing, they returned to the area of the mall. They saw a 

blue Chevrolet truck, lowered, with tinted windows, driven by Paul Lemos, 

the victim. Hernandez liked the truck and told Holt to follow it. She did. 

Holt parked her car nearby while Lemos drove through the drive-through at 

Taco Bell and purchased food.

“Holt continued to follow the truck. At one stop light the victim’s 

truck was next to another nice truck. The group decided that the victim’s 

truck was the nicest. Perez got out and started to go towards the truck when 

[petitioner] and Hernandez told him to get back in the car.

“They followed the victim in his truck until the victim arrived at his 

house. Holt backed the car up and stopped at the corner. She could not see 

the truck from her location. Perez and Hernandez jumped out and ran 

towards the truck. Hernandez told Holt to follow them after they obtained 

the truck. [Petitioner] got out shortly afterwards and stood near the car. 

Holt was not sure if [petitioner] stayed near the car because she was feeling 

ill from the drugs and was not paying attention. She kept the engine 

running. 

“Holt heard two gunshots. [Petitioner] got in the car. Perez and 

Hernandez ran to the car and got in. They told her to take off. She did. 

“In the car, Hernandez said that he was punching the victim. The 

victim was scared and crying. Hernandez told Perez he should have used 

his hands instead of a gun to take things from the victim. Perez stated that 
5.

he thought he shot the victim in the shoulder and missed with the other two 

shots. Hernandez said that Perez should have taken the victim’s wallet 

while Hernandez was punching him. 

“Holt drove the group back to Laton. She was told not to say 

anything. Holt dropped Perez off at his house so he could change his 

clothes and wash up to get rid of any gun residue. Holt, [petitioner], and 

Hernandez drove back to [Jose R.]’s home and again used drugs. 

[Anthony] was still there. Hernandez and [petitioner] told [Jose R.] he 

needed to get rid of the gun. Perez showed up shortly thereafter. The 

group stayed there about an hour. During this time the gun was returned to 

[Jose R.]. They then decided they would go to Fresno to try and find some 

more drugs. Their trip was unsuccessful, and they returned to the home of 

[Jose R.] and used more drugs. 

“Holt, [petitioner], Hernandez, and Perez left in Holt’s car. They 

were stopped by police. When they were stopped, Hernandez ran and was 

not captured. The others discussed their alibi. They decided they would 

say that Holt had picked them up from City Lights in Fresno. [Petitioner] 

came up with a name he would use. Officers removed them individually 

from the car and separated them. They were eventually allowed to leave. 

Holt went with [petitioner] to his brother’s house. 

“Two months before trial Holt was in a holding cell. Perez, 

Hernandez, and [petitioner] were being held in the same area. Perez asked 

Holt to take back her deal and not testify; Hernandez joined in asking Holt 

to change her mind. [Petitioner] told her he wanted to marry her.

“. . . Nonaccomplice Evidence

“Christina P[.] knew the victim. On December 29, 2003, she had a 

cellular telephone conversation with Lemos while she was riding in a van. 

She heard a loud sigh and Lemos stopped talking. She heard the beeping 

sound that is made when the door to a vehicle is open and the keys are left 

in the ignition. 

“Diana D. lived next door to Lemos. On the night of December 29, 

2003, she was outside on her front porch. She heard someone say, ‘F[***] 

you b[ ], you f[** *]in’ scrap.’ She looked and saw two men standing 

near each other by the back of the truck. One of the individuals had a gun 

pointed sideways at Lemos. Diana went inside of her house. She heard 

three shots. She looked out and saw Lemos fall to his knees in the 

driveway; the other individuals ran away. She heard two car doors close 
6.

and heard a car ‘screech off.’ She came out of her house and saw Lemos on 

the ground holding the back of his head and making moaning sounds. 

“When Diana first spoke to an investigator that evening, she told 

them she did not see anything. She was afraid. Her husband told her to tell

the truth, and later that evening she told officers what she had seen. 

“Diana identified Perez as the person with the gun she saw standing 

by the victim’s truck at the time he was shot. 

“Shirley V[.] was driving by the park. She drove further down the

street and parked on the street near the victim’s house so she could talk 

with a friend in the car. She saw a small white car parked on the corner. 

She heard two gunshots. She saw two people run to the car and get in. The 

car took off with the headlights off. [Shirley] followed them trying to get 

their license number. She stopped following the car when the car turned 

left towards Laton. She went back to the area and told law enforcement 

officers what she had seen. 

“Hanford police officer [R.] Pontecorvo responded to the scene of 

the murder. The truck was parked in the driveway. The driver’s door was 

open; there was a Taco Bell bag on the ground as well as a Taco Bell cup. 

A cellular telephone was on the ground by the truck. The[] keys were in 

the ignition of the truck. The stereo system in the truck was not missing. 

There were no shell casings in the area. 

“In the early morning hours of December 30, 2003, Pontecorvo 

drove to Laton looking for the vehicle. He observed a vehicle that matched 

the description of the vehicle leaving the crime scene. Pontecorvo followed 

the vehicle. The occupants of the vehicle kept looking back at Pontecorvo 

as he followed it. Pontecorvo stopped the vehicle. One person fled the 

scene. He removed the other three occupants of the car. Holt was the 

driver of the car. [Petitioner] was seated in the front passenger seat; he 

misidentified himself as Alex Gutierrez. Perez was in the rear passenger 

seat. Holt said that she had picked up the men from City Lights in Fresno. 

“Lemos died from a single gunshot wound to the left side of his 

head. In addition, he had swelling to his right eye that was not consistent 

with a gunshot wound but was consistent with blunt force trauma. A 

deformed slug was recovered from the victim’s brain. 

“Several days after the murder, a search was conducted at the home 

of [Jose R.]. [Jose R.] was there, as was [Anthony]. In addition, Manuel 

T[.] and Raul G[.] were there. Officers found weapons, ammunition, drugs, 
7.

and drug paraphernalia. [Jose R.] said that he gave the gun to [petitioner]

for protection but the gun was never returned to him. 

“The home of Robert G[.] was searched. The weapon was not 

found. Several days later, Robert turned a weapon over to law 

enforcement. Robert is the brother of Raul G[.] and the uncle of Manuel 

T[.], one of the individuals at the home of [Jose R.] when it was searched 

for the weapon. Robert said he had received an anonymous call regarding 

the location of the gun. He went to the location and found the gun in a 

paper bag by the side of the road. He refused to provide any further details 

about the gun. 

“Robert testified that he received a call and the unidentified male 

caller asked him if he was going to testify. The caller said he knew where 

he lived. When the gun was turned in, Robert said he got the gun from 

Manuel T[.]. 

“A criminalist test-fired the gun turned in by Robert. Because the 

gun was worn and old, the criminalist was not able to get nice crisp 

characteristics to compare to the fragment recovered from the victim, but 

the bullets agreed as far as land, grooves and twists and the bullet retrieved 

from the victim was consistent with being fired from the gun. 

“Jose R[.] testified that he did not know [petitioner], did not know 

Manuel T[.], and did not give [petitioner] a gun. He additionally testified 

that he did not know Perez or [petitioner] even though there were pictures 

of them found in his trailer. He admitted he was convicted of possession of 

methamphetamine for sale and possession of a firearm as a result of the 

search of his house for the gun. Manuel T[.] was present when the search 

was conducted. 

“Pontecorvo said that when officers searched the home of Jose R[.], 

[Jose R.] said that [petitioner] had not given the gun back to him. 

“On February 22, 2004, officers went to the home of Mimi P[.] to 

serve an arrest warrant for Hernandez and [petitioner]. They knocked on 

the door. Mimi answered and said [petitioner] was inside with Hernandez. 

Officers posted at the rear of the house apprehended Hernandez and 

[petitioner] after they ignored orders to go to the ground and tried to escape. 

“Mimi . . . testified that she was living with Hernandez and 

[petitioner] on February 22, 2004. Luis H[.] is the father of her children 

and also the cousin of [petitioner] and Hernandez. [Mimi] was having a 

relationship with [petitioner] at this time. Prior to the arrest of [petitioner] 
8.

and Hernandez, [Mimi] had several conversations with them. . . . [T]he 

mother of Hernandez’s children, was present during some of the 

conversations. 

“During the conversations, Hernandez told them that Perez shot the 

person in the truck and Holt drove them. [Petitioner] said that Perez liked 

the victim’s truck and Perez told Holt to follow it. Perez said he was going 

to take the victim’s money and his truck. [Petitioner] also said that Perez 

shot the victim. [Mimi] was told that Perez told the victim to give him all 

of the money and the victim asked not to be killed. The victim reached for 

something and Hernandez said the victim was reaching for a gun. Perez 

shot the victim. When [petitioner] talked about the incident he cried and 

said he did not do it. 

“Numerous law enforcement officials described contacts with 

[petitioner], Hernandez, and Perez involving the Laton Bulldog gang and 

their membership in the gang. 

“[R.] Paolinelli, an expert on the Laton Bulldogs gang, testified that 

‘scrap’ is a term used by Norte[ñ]o Bulldogs to disrespect Sure[ñ]os. The 

Laton Bulldogs are rivals with both the Sure[ñ]o and Norte[ñ]o gangs. It 

was Paolinelli’s opinion that Hernandez, Perez, and [petitioner] are 

members of the Bulldog gang. 

“An officer searched the victim’s bedroom, finding nothing 

associated with any type of gang affiliation.” (Guzman, supra, F048683, 

italics added, fn. omitted.)

On June 20, 2005, the Kings County District Attorney filed an amended 

information charging petitioner with the first degree murder of Lemos (§§ 187, subd. (a), 

189; count 1) with the special circumstances petitioner committed the murder while an 

active participant in a criminal street gang (§ 190.2, subd. (a)(22))7 and that the murder 

was committed during the commission or attempted commission of a robbery (§ 190.2, 

subd. (a)(17)(A)). It was further alleged the murder was committed in furtherance of a 

criminal street gang (§ 186.22, subd. (b)(1)) and that a principal personally and 

intentionally discharged a handgun which proximately caused death to Lemos 

7 Upon stipulation and motion by the district attorney this special circumstance 

was dismissed prior to jury deliberations.
9.

(§§ 12022.53 subds. (b), (c), (d), (e)(1), 12022.5, subd. (a)). Finally, the information 

alleged petitioner suffered a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12, 

subds. (a)–(d)), and had served a prior prison term (§ 667.5, former subd. (b)).

On July 15, 2005, the jury convicted petitioner8 of first degree murder and found 

true the special circumstance that the murder was committed during the commission or 

attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)). The jury also found true 

the enhancements the murder was committed in furtherance of a criminal street gang 

(§ 186.22, subd. (b)(1)) and that the principal personally and intentionally discharged a 

firearm causing death to Lemos (§ 12022.53, subds. (d), (e)). In addition, petitioner 

admitted the allegations that he suffered a prior strike conviction and served a prior 

prison term. (Guzman, supra, F048683.) 

On August 12, 2005, the trial court sentenced petitioner to a term of life without 

the possibility of parole with a consecutive term of 25 years to life for the firearm 

enhancement (§ 12022.53, subds. (d), (e)(1)) and a consecutive one-year term for the 

prison prior (§ 667.5, former subd. (b)). As to the gang enhancement (§ 186.22, 

subd. (b)(1)), the trial court sentenced petitioner to the upper term of 10 years, but stayed 

the sentence pursuant to section 654.

In petitioner’s direct appeal, he argued in relevant part there was insufficient 

evidence to support the jury’s true finding on the robbery special circumstance. 

(Guzman, supra, F048683.) This court disagreed and concluded substantial evidence 

existed to support the finding. (Ibid.) Specifically, this court stated: 

“In this case, [petitioner] was the individual who acquired the gun 

and loaded it. He participated fully in the plans to commit an armed 

8 Petitioner and Hernandez were tried together and both were convicted of first

degree murder and additional allegations. Perez was tried separately and was convicted 

of first degree murder, two special circumstances, plus firearm and gang allegations. 

Both Hernandez and Perez were the subjects of separate appeals. Holt testified as an 

accomplice in both trials. (Guzman, supra, F048683.) 
10.

robbery. He participated in the stalking of the victim and called off Perez 

when he started to approach the victim on a public street. [Petitioner] got 

out of the car, presumably acting as a lookout, while Perez and Hernandez 

committed the attempted robbery. [Petitioner] heard the gunshots and 

jumped in the car, not offering any assistance to the victim. Under these 

facts the jury could properly have found that [petitioner] was a major 

participant and acted with a reckless indifference to human life. Substantial 

evidence supports the special circumstance.” (Guzman, supra, F048683.)

Accordingly, this court affirmed the judgment. (Ibid.) 

On August 12, 2019, petitioner, in propria persona, filed a petition for 

resentencing on his murder conviction pursuant to section 1172.6. In an attached 

declaration, petitioner stated that an information was filed against him that allowed the 

prosecution to proceed under a theory of first degree felony murder; a jury convicted 

petitioner of first degree murder pursuant to the felony-murder rule and/or the natural and 

probable consequences doctrine; 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 also stated he was not the actual killer; he did not, with the intent to kill, aid, 

abet, counsel, command, induce, solicit, request, or assist the actual killer in the 

commission of murder in the first degree; he was not a major participant in the felony or 

did not act with reckless indifference to human life; and the victim of the murder was not 

a peace officer acting in the performance of his duties. Moreover, as a part of his 

petition, petitioner argued the evidence presented in his trial was insufficient to support 

the robbery special circumstance finding based on the five-factor test set forth in Banks, 

supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. Petitioner did not request 

appointed counsel in his petition. 

The district attorney filed a response arguing that petitioner is ineligible for 

section 1172.6 resentencing relief because he was a principal in the murder who acted 

with implied malice. The People additionally argued that Senate Bill No. 1437 
11.

(2017–2018 Reg. Sess.) (Senate Bill No. 1437) is unconstitutional. Petitioner, in propria 

persona, filed a reply arguing that he is eligible for relief and that Senate Bill No. 1437 is 

constitutional. The trial court, without addressing the constitutionality of Senate Bill 

No. 1437 and without appointing counsel for petitioner, denied the petition on the basis 

that:

“The California Court of Appeal, Fifth Appellate District has found that 

Petitioner was a major participant in a felony enumerated in Penal Code 

§ 189(a) and that he acted with reckless indifference to human life:

“ ‘In this case, [petitioner] [Guzman] was the individual who 

acquired the gun and loaded it. He participated fully in the plans to 

commit robbery. He participated in the stalking of the victim and 

called off Perez when he started to approach the victim on a public 

street. [Petitioner] got out of the car, presumably acting as a 

lookout, while Perez and Hernandez committed the robbery. 

[Petitioner] heard gun shots and jumped in the car, not offering any 

assistance to the victim. Under these facts, the jury could properly 

have found that [petitioner] was a major participant and acted with 

reckless indifference to human life. Substantial evidence supports 

[the conviction].’ [Citation.]

“Since the record establishes that Petitioner was a major participant in a 

felony enumerated in Penal Code § 189(a) and acted with reckless 

indifference to human life in the commission of that felony, his first degree 

murder conviction shall stand despite the enactment of Senate Bill 

[No.] 1437.”

A timely appeal followed. In a nonpublished opinion filed May 16, 2022, we 

affirmed the trial court’s order denying resentencing. (People v. Guzman (May 16, 2022, 

F081436).)

On June 16, 2022, petitioner filed a petition for review arguing that a special 

circumstance finding prior to Banks and Clark should not preclude resentencing relief as 

a matter of law. On July 20, 2022, our Supreme Court granted review and deferred 

consideration and disposition in light of its decision in Strong. On December 21, 2022, 

our Supreme Court transferred the matter back to this court with directions to vacate our
12.

May 16, 2022 opinion and reconsider the cause in light of Strong. We afforded the 

parties an opportunity to file supplemental briefing. On January 4, 2023, the People filed 

a supplemental brief conceding that based on Strong this case should be reversed and 

remanded for further proceedings. Petitioner filed no response. Pursuant to our Supreme 

Court’s order, we vacated our prior opinion in an order filed January 20, 2023. Based on 

the People’s concession, the trial court’s order denying the section 1172.6 petition is 

reversed and the matter remanded for further proceedings. 

DISCUSSION

I. Applicable Law

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “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, 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 felonymurder 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 

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 
13.

indifference to human life, as described in subdivision (d) of Section 

190.2.”9 (§ 189, subd. (e); accord, Gentile, at p. 842.)

Finally, the bill added section 1172.6 (former § 1170.95) to provide a procedure for those 

convicted of a qualifying offense “to seek relief under the two ameliorative provisions 

above.” (Gentile, at p. 843.) This procedure is available to persons convicted of “felony 

murder or 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, attempted murder under the natural and probable consequences doctrine, or 

manslaughter.” (§ 1172.6, subd. (a).)

“Section [1172.6] lays out a process” for a person convicted of one of the 

aforementioned offenses “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, 

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, or attempted murder under the natural and 

probable consequences doctrine[;]

“(2) The petitioner was convicted of murder, attempted murder, or 

manslaughter following a trial or accepted a plea offer in lieu of a trial at 

which the petitioner could have been convicted of murder or attempted 

murder[; and]

“(3) The petitioner could not presently be convicted of murder or attempted 

murder because of changes to Section 188 or 189 made effective January 1, 

2019.” (§ 1172.6, subd. (a)(1)–(3); see § 1172.6, subd. (b)(1)(A); accord, 

People v. Lewis (2021) 11 Cal.5th 952, 959–960 (Lewis).) 

9 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.)
14.

Additionally, the petition shall state “[w]hether the petitioner requests the appointment of 

counsel.” (§ 1172.6, subd. (b)(1)(C).) 

If a petition fails to contain the required information and the information cannot be 

“readily ascertained” by the court, the petition may be denied without prejudice to the 

filing of another petition. (§ 1172.6, subd. (b)(2).) Otherwise, counsel must be 

appointed, if requested. (§ 1172.6, subd. (b)(3).) The prosecutor must file a response and 

the petitioner may file a reply. The trial court must then hold a hearing to determine if 

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

(§ 1172.6, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961–963, 967.) In making

this determination, the court may rely on the record of conviction, which includes, but is 

not limited to, jury instructions and verdict forms. (Lewis, at pp. 970–971, 972.) 

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 declines to make an order to show cause, 

it shall provide a statement fully setting forth its reasons for doing so.” (§ 1172.6, 

subd. (c).) 

On the other hand, 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[, attempted murder, or manslaughter] conviction 

and to resentence the petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at 

p. 853; accord, § 1172.6, subds. (c), (d)(1).) At the hearing, the prosecution must “prove, 

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

subd. (d)(3).) The prosecutor and the petitioner may offer new or additional evidence to 

meet their respective burdens. The admission of evidence at the hearing is governed by 

the Evidence Code. However, the court also “may consider evidence previously admitted 

at any prior hearing or trial that is admissible under current law, including witness 

testimony, stipulated evidence, and matters judicially noticed,” as well as the “procedural
15.

history of the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3).) 

Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) 

of section 872 is inadmissible at the evidentiary hearing, unless made admissible by 

another exception to the hearsay rule. (§ 1172.6, subd. (d)(3).) 

II. Analysis

Petitioner contends the jury’s special circumstance finding cannot establish his 

ineligibility for resentencing as a matter of law because his conviction predates our 

Supreme Court’s decisions in Banks/Clark, which clarified the meaning of “major 

participant” and “reckless indifference to human life.” Based on our Supreme Court’s 

holding in Strong, we agree.10

Prior to Strong, the Courts of Appeal were split on the question of whether a 

special circumstance finding entered prior to Banks and Clark renders a petitioner 

ineligible for section 1172.6 resentencing relief as a matter of law. Our Supreme Court 

recently resolved this split and made clear that when, as here, a petitioner’s case “was 

tried before both Banks and Clark, the special circumstance findings do not preclude him 

from making out a prima facie case for resentencing under section 1172.6.” (Strong, 

supra, 13 Cal.5th at p. 721.) “This is true even if the trial evidence would have been 

sufficient to support the findings under Banks and Clark.” (Id. at p. 710.) The Strong

court noted the Banks and Clark cases “both substantially clarified the law governing 

findings under . . . section 190.2, subdivision (d).” (Strong, at p. 706.) Further, the court 

articulated a pre-Banks and Clark special circumstance finding does not negate the 

showing a petitioner could not presently be convicted of murder or attempted murder 

because of changes to section 188 or 189 “because the finding alone does not establish 

that the petitioner is in a class of defendants who would still be viewed as liable for 

10 Petitioner further contends the trial court erred in failing to appoint counsel at 

the prima facie stage. Because we conclude petitioner established a prima facie case for 

relief under section 1172.6, we do not address this argument in this opinion.
16.

murder under the current understanding of the major participant and reckless indifference 

requirements.” (Strong, at p. 718.) Moreover, “there is nothing in section 1172.6 to 

indicate that such arguments may be made only after a petitioner has had the prior special 

circumstance findings set aside in a separate habeas corpus or other proceeding.” (Id. at 

p. 714.) 

Because of the differences between the pre- and post-Banks and Clark special 

circumstance requirements, the Supreme Court stated the changes may “have altered 

what evidence defense counsel would have sought to introduce[,] . . . might have 

fundamentally altered trial strategies” (Strong, supra, 13 Cal.5th at p. 719), and may have 

affected what jury instructions were requested or given (id. at p. 720). “An after-the-fact 

court review of a pre-Banks and Clark record does not account for all these 

differences. . . . And as the Legislature has made explicit in a recent amendment to the 

predecessor to section 1172.6, a court determination that substantial evidence supports a 

homicide conviction is not a basis for denying resentencing after an evidentiary hearing. 

[Citation.] Nor, then, is it a basis for denying a petitioner the opportunity to have an 

evidentiary hearing in the first place.” (Ibid.) “For petitioners with pre-Banks/Clark

findings, no judge or jury has ever found the currently required degree of culpability for a 

first time. Allowing reexamination of the issue under these circumstances does not 

permit ‘a second bite of the apple’ because the changes in the law mean there is now ‘a 

different apple.’ ” (Id. at p. 718.) Thus, neither “the jury’s pre-Banks and Clark findings 

nor a court’s later sufficiency of the evidence review amounts to the determination 

section 1172.6 requires, and neither set of findings supplies a basis to reject an otherwise 

adequate prima facie showing and deny issuance of an order to show cause.” (Id. at 

p. 720.) 

Here, the jury found true the section 190.2, subdivision (a)(17)(A) special 

circumstance before Banks and Clark were decided. Pursuant to Strong, this finding does 

not preclude petitioner from stating a prima facie case for relief. (Strong, supra, 13 
17.

Cal.5th at p. 721.) Moreover, a petitioner’s prima facie case is not barred even if the 

evidence is sufficient to support the special circumstance post-Banks and Clark. (Id. at 

p. 710; Lewis, supra, 11 Cal.5th at p. 972 [In reviewing the record at the prima facie 

stage, “a trial court should not engage in ‘factfinding involving the weighing of evidence 

or the exercise of discretion.’ ”].)

Petitioner’s section 1172.6 petition was facially sufficient and alleged the essential 

facts necessary for relief under section 1172.6. Nothing in the record indicates petitioner 

is ineligible for relief as a matter of law, and thus, we must remand the matter for the trial 

court to issue an order to show cause, and, to the extent necessary, conduct an evidentiary 

hearing. (§ 1172.6, subds. (c), (d)(1) & (3).) We express no opinion on the ultimate 

resolution on the petition. 

DISPOSITION

The trial court’s order denying petitioner’s section 1172.6 petition is reversed. On 

remand, the trial court is directed to issue an order to show cause and, to the extent 

necessary, hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).