Filed 1/5/23 P. v. Durbin CA2/6

Opinion following transfer from 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JAMES NICKOLAS DURBIN,

 Defendant and Appellant.

2d Crim. No. B305999

(Super. Ct. No. KA064692)

(Los Angeles County)

OPINION ON TRANSFER

FROM SUPREME COURT

Appellant Jack Nickolas Durbin was convicted of first 

degree murder in 2005. (Pen. Code, §§ 187, subd. (a), 189.)1 The 

jury found true a special circumstance allegation that the murder 

had been committed while appellant was engaged in the 

commission of robbery. (§ 190.2, subds. (a)(17)(A), (d).) In 2019 

appellant filed a petition to vacate his murder conviction and 

obtain resentencing pursuant to section 1170.95, now section 

1172.6, which was added to the Penal Code by Senate Bill No. 

1 All statutory references are to the Penal Code.
2

1437 (S.B. 1437).2 (Stats. 2018, ch. 1015, § 4.) The trial court 

summarily denied the petition because appellant had failed to 

make a prima facie showing that he could not be convicted of 

murder under current law. (§ 1172.6, subd. (c).)

In our original unpublished opinion (People v. Durbin (May 

24, 2021, B305999)), we held that the jury’s true finding on the 

special circumstance allegation rendered appellant ineligible for 

relief as a matter of law. We therefore affirmed the order 

denying his petition.

On July 29, 2021, the California Supreme Court granted 

review. On November 16, 2022, it transferred the matter back to 

us “with directions to vacate [our] decision and reconsider the 

cause in light of People v. Strong (2022) 13 Cal.5th 698 [Strong].” 

The Attorney General concedes that, pursuant to Strong, 

appellant made a prima facie case for relief. We accept the 

concession. Thus, appellant is entitled to an evidentiary hearing 

under section 1172.6, subdivision (d). We vacate our original 

decision, reverse, and remand for further proceedings. 

Procedural Background

In addition to being convicted of first degree murder, 

appellant was convicted of conspiracy to commit robbery and two 

counts of second degree robbery. (§§ 182, subd. (a)(1), 211, 212.5.) 

The trial court found true one prior serious felony conviction 

(§ 667, subd. (a)(1)) and one prior strike within the meaning of 

California’s “Three Strikes” law. (§§ 1170.12, subds. (a)-(d), 667, 

subds. (b)-(i).) Appellant was sentenced to prison for a 

2 Effective June 30, 2022, section 1170.95 was renumbered 

as section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 

10.) We will refer to the statute as section 1172.6.
3

determinate term of 15 years plus an indeterminate term of life 

without the possibility of parole. 

Appellant appealed from the judgment. In People v. Berry

et al. (Oct. 19, 2006, B183555) [nonpub. opn.], we struck a parole 

revocation fine and affirmed the judgment as modified.3 

In support of his 2019 petition for resentencing, appellant 

declared under penalty of perjury: (1) he was convicted of first 

degree murder under the felony-murder rule or the natural and 

probable consequences doctrine; (2) he could not currently be 

convicted of murder because of changes made by S.B. 1437; (3) he 

was not the actual killer; (4) 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;” and (5) he “was not a 

major participant in the felony or [he] did not act with reckless 

indifference to human life.” 

The trial court denied appellant’s petition because he “is 

not entitled to relief as a matter of law.” The trial court reasoned 

that, based on the record of conviction, the jury had found true 

the special circumstance allegation. “This finding required the 

prosecution to show that the petitioner, as a non-shooter, had the 

intent to kill or acted with reckless indifference to human life 

while acting as a major participant in the robbery.” 

Facts

The following summary of the facts is taken from our 2006 

unpublished opinion in appellant’s appeal from the judgment: 

Three persons were involved in the commission of the 

robbery – appellant, Shawn Berry, and George Berry. While 

Shawn Berry stood outside as a lookout, appellant and George 

3 The opinion is included in the record on appeal. 
4

Berry entered a store. “[T]he victims [inside the store] were 

thrown to the floor, kicked, handcuffed, threatened with a knife 

and revolver, and [they] screamed.” “Brandishing a large bowie 

knife, [appellant] kicked and handcuffed the store owner, ShuYing Chen. George Berry pointed a revolver at Chen’s 

husband, . . . ordered him to the front of the store and pushed 

him down. [Husband] tried to remove his fanny pack and pled, 

‘I’ll give you money, I’ll give you money.’” “George Berry fired 

three shots, killing [husband].” The cause of death was a gunshot 

wound to the chest. “At the preliminary hearing, [appellant] 

blurted out ‘I did this crime’ and declared that Shawn Berry and 

George Berry had nothing to do with the robbery.” At trial 

appellant’s statement was admitted in evidence. 

S.B. 1437

“In Senate Bill No. 1437 . . . , the Legislature significantly 

narrowed the scope of the felony-murder rule. [Pursuant to new 

section 1172.6,] [i]t also created a path to relief for defendants 

who had previously been convicted of murder on a felony-murder 

theory but who could not have been convicted under the new 

law.” (Strong, supra, 13 Cal.5th at p. 703.)

Appellant was convicted of murder on a felony-murder 

theory. In Strong, supra, 13 Cal.5th at p. 708, our Supreme 

Court noted: “Penal Code section 189, as amended [by S.B. 1437], 

now limits liability under a felony-murder theory principally to 

‘actual killer[s]’ (Pen. Code, § 189, subd. (e)(1)) and those who, 

‘with the intent to kill,’ aid or abet ‘the actual killer in the 

commission of murder in the first degree’ (id., subd. (e)(2)). 

Defendants who were neither actual killers nor acted with the 

intent to kill can be held liable for murder only if they were 

‘major participant[s] in the underlying felony and acted with 
5

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

of [Penal Code] Section 190.2’ — that is, the statute defining the 

felony-murder special circumstance. (Id., § 189, subd. (e)(3).)”

Section 1172.6 gives retroactive effect to the changes in 

section 189. It provides, “A person convicted of felony murder . . . 

may file a petition with the court that sentenced the petitioner to 

have the petitioner’s murder . . . conviction vacated and to be 

resentenced on any remaining counts when” certain conditions 

apply. (§ 1172.6, subd. (a).) One of the conditions is that “[t]he 

petitioner could not presently be convicted of murder . . . because 

of changes to Section . . . 189 made [by S.B. 1437] effective 

January 1, 2019.” (Id., subd. (a)(3).) The petition must include a 

declaration by the petitioner showing that he is eligible for the 

relief afforded by section 1172.6. (Id., subd. (b)(1)(A).) 

“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).) “Within 60 days after the 

order to show cause has issued, the court shall hold a hearing to 

determine whether to vacate the murder . . . conviction and to 

recall the sentence and resentence the petitioner . . . .” (Id., subd. 

(d)(1).) 

People v. Strong

In Strong our Supreme Court explained the significance of 

its prior decisions in People v. Banks (2015) 61 Cal.4th 788 

(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark): 

“Banks and Clark both substantially clarified the law governing 

findings under Penal Code section 190.2, subdivision (d): Banks

elucidated what it means to be a major participant and, to a 

lesser extent, what it means to act with reckless indifference to 

human life, while Clark further refined the reckless indifference 
6

inquiry.” (Strong, supra, 13 Cal.5th at pp. 706-707.) Thus, “[f]or 

petitioners [such as appellant] with pre-Banks/Clark findings, no 

judge or jury has ever found the currently required degree of 

culpability for a first time.” (Id. at p. 718.)

The Supreme Court held: “[Un]less a defendant was tried 

after Banks was decided [in 2015], a major participant finding 

will not defeat an otherwise valid prima facie case [under section 

1172.6, subdivision (c)]. And unless a defendant was tried after 

Clark was decided [in 2016], a reckless indifference to human life 

finding will not defeat an otherwise valid prima facie case. 

[¶] Because Strong’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.)

Strong Mandates the Reversal of the Order

Summarily Denying Appellant’s Petition

The trial court denied appellant’s petition without issuing 

an order to show cause because it concluded that the jury’s 

special circumstance findings rendered him ineligible for section 

1172.6 relief as a matter of law. The Attorney General correctly 

acknowledges that, since the jury’s findings were rendered before 

Banks and Clark, they do not preclude appellant from making 

the requisite prima facie showing under section 1172.6, 

subdivision (c). (Strong, supra, 13 Cal.5th at p 721.) We accept 

the Attorney General’s concession that “the matter should be 

remanded for the trial court to issue an order to show cause and 

conduct an evidentiary hearing pursuant to section 1172.6, 

subdivision (d)(3).”
7

We express no opinion on the merits as to whether 

appellant was a “major participant” who acted with “reckless 

indifference to human life.” In the first instance, this is 

addressed to the Superior Court sitting as trier of fact. (People v. 

Schell (2022) 84 Cal.App.5th 437, 442, review denied Dec. 28, 

2022, S277446.)

Disposition

Our original decision filed on May 24, 2021 is vacated. The 

order denying appellant’s section 1172.6 petition is reversed. The 

matter is remanded to the trial court with directions to (1) 

reappoint counsel, (2) issue an order to show cause, and (3) 

conduct an evidentiary hearing in accordance with section 

1172.6, subdivision (d).

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.
Rogelio Delgado, Judge

Superior Court County of Los Angeles

______________________________

Tracy A. Rogers, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Xavier Becerra, Attorneys General, Lance E. 

Winters, Chief Assistant Attorney General, Susan Sullivan 

Pithey, Senior Assistant Attorney General, Michael R. Johnsen, 

Supervising Deputy Attorney General, Michael C. Keller, Charles 

S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.