Filed 10/26/22 P. v. Bergman CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN MICHAEL BERGMAN,

Defendant and Appellant.

 B315257

 (Los Angeles County

 Super. Ct. No. NA078839)

APPEAL from an order of the Superior Court of Los 

Angeles County, Richard M. Goul, Judge. Reversed and 

remanded with directions.

Corey J. Robins, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Kenneth C. Byrne and David A. Wildman, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Kevin Michael Bergman 

(defendant) appeals from the denial of his petition for 

resentencing brought pursuant to former section 1170.95 of the 

Penal Code, now section 1172.6.1 Defendant contends that the 

trial court erroneously found that he was ineligible for relief 

under the statute as a matter of law. We conclude the denial was 

improper under our Supreme Court’s recent decision in People v. 

Strong (2022) 13 Cal.5th 698 (Strong) and reverse the order.

2

BACKGROUND

In 2009, a jury convicted defendant of first degree murder 

and found true the special circumstances that the murder was 

committed during the commission of a robbery within the 

meaning of section 190.2, subdivision (a)(17)(A) and a burglary, 

within the meaning of section 190.2, subdivision (a)(17)(G). 

Defendant was sentenced to prison for life without parole. We 

affirmed the judgment in People v. Bergman (Feb. 23, 2011,

B219309) (nonpub opn.).

1 Effective June 30, 2022, Penal Code section 1170.95 was 

renumbered section 1172.6, with no significant change in text. 

(Stats. 2022, ch. 58, § 10.) For the sake of simplicity, we will 

refer to the section by its new numbering only. All further 

statutory references are to the Penal Code, unless otherwise 

indicated.

2 The parties both responded to our invitation to address the 

consequence of People v. Strong, supra, 13 Cal.5th 698 on this 

case, which we considered.
3

The underlying crime

In May 2008, defendant was angry with victim Dean 

Modica because he believed Modica owed him money. After 

defendant learned that Modica sold drugs and where he kept 

them, defendant and three friends including Trevor Cooper and 

Sean Schuck, went to Modica’s home to steal them. While two of 

the friends remained in their car, defendant and Schuck found 

Modica in his front yard and went into the house with him. After 

about 10 minutes, Cooper went to check on them. Hearing a 

commotion when he approached the front door, he entered, and 

saw defendant and Modica wrestling or fighting upright, with 

Modica’s back against the wall. Cooper saw Schuck approach 

defendant from behind and lunge over him toward Modica. 

Cooper claimed not to have seen a knife. Modica died as a result 

of multiple sharp force injuries and sustained cuts consistent 

with defensive wounds. The medical examiner could not confirm 

whether Modica was or was not standing when he received the 

injuries.

Petition for resentencing

In January 2019 defendant filed a petition to vacate his 

murder conviction and for resentencing.3 Section 1172.6 

3 Effective January 1, 2019, the Legislature amended the 

laws pertaining to felony murder and murder under 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 

Legislature also added former section 1170.95 (now section 

1172.6), which provides a procedure for convicted murderers to 
4

authorizes a petitioner “convicted of felony murder or murder 

under the natural and probable consequences doctrine” to vacate 

his murder conviction if, as a threshold matter, he makes a 

“prima facie showing” of entitlement to relief. (§ 1172.6, subds. 

(a) & (c).) Such a petitioner is entitled to relief if he “could not 

presently be convicted of murder” under the amendments to the 

murder statutes that became effective on January 1, 2019. (Id., 

subd. (a)(3).) As relevant here, the murder statutes, even after 

the amendments, still authorize a murder conviction based on 

murder committed by someone else in the course of a jointly 

committed felony as long as the defendant “was a major 

participant in the underlying felony and acted with reckless 

indifference to human life.” (§ 189, subd. (e)(3).)

Where a petition alleges the statutory conditions to 

eligibility, as was done here, the trial court must appoint counsel, 

entertain briefing by both parties, and then “proceed[] to 

subdivision (c) to assess whether the petitioner has made ‘a 

prima facie showing’ for relief. (§ [1172.6], subd. (c).)” (Lewis, 

supra, 11 Cal.5th at p. 960; see id. at p. 962.) If the court 

determines that a prima facie showing has been made, it issues 

an order to show cause and then holds an evidentiary hearing 

pursuant to section 1172.6, subdivision (d) to determine whether 

to vacate the conviction and resentence the petitioner.

At the prima facie stage, the court must accept the 

petitioner’s factual allegations as true and make a preliminary 

assessment of entitlement to relief if the allegations were proved;

seek retroactive relief if they could not be convicted under 

sections 188 and 189 as amended effective January 1, 2019. 

(People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
5

and only where the record of conviction contains established facts 

showing that the petitioner is ineligible for resentencing as a 

matter of law may the court find that no prima facie showing has 

been made and deny the petition without issuing an order to 

show cause. (Lewis, supra, 11 Cal.5th at p. 971; see People v. 

Duchine (2021) 60 Cal.App.5th 798, 815.)

After he filed his petition, the trial court appointed counsel 

for defendant, ordered the People to respond, received briefing 

from both sides, and, after several continuances and further 

briefing, held a prima facie review hearing. On September 8, 

2021, after hearing the argument of counsel, the trial court 

denied the petition upon finding that defendant had not made a 

prima facie showing of eligibility for relief under the statute.

Defendant filed a timely notice of appeal from the order.

DISCUSSION

Defendant contends that the trial court erroneously denied 

his petition by relying on facts and factual findings set forth in 

the appellate opinion on direct appeal (People v. Bergman, supra, 

B219309) and engaging in improper factfinding under a 

substantial evidence standard at the prima facie stage.

Explaining its ruling, the trial court stated that “while . . . 

there is no evidence that the defendant was the actual killer, the 

jury did find beyond a reasonable doubt and the Court of Appeal 

did affirm that evidence supported the conclusion that the 

defendant was, if not the actual killer, a significant participant in 

the attack under the act of reckless indifference to human life.” 

Both defendant and the People interpret the court’s ruling as a 

finding that the special circumstances the jury found true 
6

pursuant to section 190.2, subdivision (a)(17) rendered defendant 

ineligible for relief as a matter of law.

In support of his petition in the trial court, defendant cited 

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

Clark (2016) 63 Cal.4th 522 (Clark), arguing that, after he was 

convicted in 2009, these authorities and subsequent cases 

clarified the requirements to a determination of whether a 

defendant was a major participant who acted with reckless 

indifference to human life, and thus a special circumstance 

finding does not preclude eligibility as a matter of law. Renewing 

that argument here, defendant contends that the special 

circumstance instruction given to the jury at his trial was 

inadequate to explain the requirements necessary to make the 

special circumstance findings. Defendant asks that the order 

therefore be reversed with directions to the trial court to conduct 

an evidentiary hearing.

At defendant’s trial, the jury was instructed that if the 

defendant committed an act causing death during the 

commission of a robbery or burglary either as the perpetrator or 

aider and abettor of the robbery or burglary, he could be guilty of 

first degree murder whether the killing was unintentional,

accidental, or negligent. The jury was also instructed that to find 

the alleged special circumstances true, it was required to find 

beyond a reasonable doubt that defendant acted with the intent 

to kill or was a major participant in the crime and acted with 

reckless indifference to human life. The instructions did not 

define those terms or provide factors to guide the determination.

After initial briefing was complete in this appeal, the 

California Supreme Court published Strong, supra, 13 Cal.5th 

698. There, as here, the defendant was tried prior to the 
7

publication of Banks and Clark, and, under similar facts, the jury 

found true a special circumstance alleged pursuant to section 

190.2, subdivision (a). (See Strong, at pp. 703-704.) As in this 

case, the trial court summarily denied the defendant’s section 

1172.6 petition on the ground that the jury’s special circumstance 

finding precluded the defendant from making a prima facie 

showing of eligibility. (Strong, at p. 709.) In Strong our Supreme 

Court held that this was wrong, reasoning that Banks and Clark

“substantially clarified” and narrowed the meaning of the terms 

“major participant” and “reckless indifference”; and thus 

“[f]indings issued by a jury before Banks and Clark” are not 

preclusive. (Id. at pp. 721, 710.) More to the point, they “do not 

preclude a defendant from making out a prima facie case for 

relief.” (Id. at pp. 710, 716-717.)

Following the Strong opinion, the People concede their 

original arguments have been rejected and agree that this 

“matter should be remanded for the superior court to issue an 

order to show cause and conduct an evidentiary hearing wherein 

relief should be denied if the prosecution proves ‘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. 

(§ 1172.6, subdivision (d)(3).)”

As defendant’s petition alleged the conditions for relief 

under section 1172.6, and the trial court found no facts in the 

record which conclusively refuted the allegations as a matters of 

law, defendant made the required prima facie showing under 

section 1172.6, subdivision (c), and the matter must proceed to an 

evidentiary hearing under subdivision (d).
8

DISPOSITION

The order denying the petition is reversed. The matter is 

remanded with directions to the superior court to issue an order 

to show cause, appoint counsel, and proceed with an evidentiary 

hearing under section 1172.6, subdivision (d).

________________________

CHAVEZ, J.

We concur:

________________________

LUI, P. J.

________________________

ASHMANN-GERST, J.