Filed 5/15/20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID SHAWN SMITH

,
Defendant and Appellant. B29 8642

(Los Angeles County Super. Ct. No. BA042241)

APPEAL from an order of the Superior Court of Los Angeles County, Robert Perry, Judge. Reversed and remanded, with instructions.
Em r y J. Allen , under appointment by the Court of Appeal, for Defendant and A ppellant.
Xavi er Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, David E. Madeo, Dep u ty Attorney General, Idan Ivri, Acting Supervis ing Deputy Attorney General , for Plaintiff and Respondent.2 __________________________

Defendant and appellant Davi d Shawn Smith appeals from a postjudgment order denying his petition for resentencing pursuant to Penal Code section 1170.95 1 and Senate Bill No. 1437 (Senate Bill 1437 ). As relevant here, the statute and Senate bill provide for vacat ur of a defendant’s murder conviction and resentencing if the defendant was convicted of felony murder and the defendant (1) was not the actual killer, (2) did not act with the intent to
ki ll, an d (3) was not a major participant who acted with reckless indifference to human life. (§ 189, subd. (e)(3).)
Smith contends the trial court erred by summarily denying his petition on the merits and on the basis that
Senate Bill 1437 unconstitutional ly ame nds secti on 190 , and by failing to appoint counsel prior to determining his eligibility for resentencing

. 2 The People agree that section 1170.95 and Senate Bill 1437 do not unconstitutionally amend section 190 , but argue

1 All further statutory references are to the Penal Code unless otherwise indica t ed.

2 Smith also contends that the trial court was required to issue an order to show cause and conduct a hearing on the
matte r. T he court h as no duty to do so prior to appointment of counsel and briefing, and Smith does not argue otherw ise. As we are r emanding for appointment of counsel and briefing, the issue is premature and we decline to address it here.3

that the trial court’s ruling shoul d be affi rmed because in
1994 the jury found true the special circumstance that the murder was committed during the commission of a robbery (§ 190.2 , subd. (a)(17)), a finding which we affirmed on direct appeal in 1996.
We reverse and remand to the t rial c ourt. We agree with the parties that section 1170.95 and Senate Bill 1437 do not unconstitutionally amend section 190. We further
conclude that Smith should have been appointed counsel before the trial court ruled on his petition.

FACTS AND PROCED URAL H ISTORY

M urder Conviction

In 1994, Smith was convicted of first degree murder (§ 187, subd. (a) [count 1]) under a felony murder theory of liability. The jury found true the special circumstance that the murder was committed during the commission o f a

ro bbery pur suant to section 190.2, subdivision (a)(17). Smith was additionally convicted of two counts of kidnapping (§ 209; [counts 2 & 3]), two counts of burglary (§ 459; [counts 4 & 5]), one count of residential robbery (§ 211; [count 7]),
and thre e coun ts of rap e (§§ 261, subd. (a)(2), 264.1, 289; [counts 8

– 10]). He was sentenced to life in state prison without the possibility of parole, plus sixteen years. 3

3 Smith ’s offenses, carried out wi th his co

- defendants Anthony D. Jefferson and Reginald Ray York, as recited in4

Appeal

Smith appealed, contending, as pertinent here, that
there was insufficient evidenc e tha t he acted with “reckless
indifference to human life

, ” as required to support the jury’s robbery murder special circumstance finding, and that the trial court gave an erroneous instruction regarding “reckless
indifference

. ” ( York

, supra , B088372, at pp. 1 2

– 13.) Th is court concluded that the jury’s robbery

- murder special circumstance finding was supported because substantial evidence was presented to demonstrate that Smith acted with “reckless indifference to human life,” i.e. that he had “a subjectiv e app reciation or knowledge .

. . [that his] acts involved a grave risk that such acts could result in the death of an innocent human being.” ( Id . at p. 12.) We also held that there was no error in the instruction given to the jury regarding reckless ind iffer ence (CALJ IC No. 8.80.1). ( Id . at

p. 13.)

Section 1170 .95 Petition for Resentencing

Petition for Re sentenc ing

On Januar y 25 , 2019, Smith petitioned for

res entencing under section 1170.95. He declared that he

our unpublished opinion, People v. York et al . (Jan. 16, 1996, B088372) ( York )

, are described in the trial court’s ruling, post

.5

met all of the requirements for sectio n 117 0.95 and w as eligible for relief. Smith further declared that he was not a “major participant” in the murder and did not act with
“reckless indifference.” Smith requested that counsel be appointed to him.

Trial Court’s Ruling

The tr ial court denie d the petition on February 19

, 2019. The trial court’s written ruling discussed the reasons
for denial as follows: “On April 25, 1991, Otis Ervin robbed an armored car of $500,000. Six weeks later, Defendant David Shawn Smith joined with two other men to rob Ervin of h is ill

- gotten gains. The intended robbery spiraled into a major crime spree which included rape in concert, rape by a foreign object in concert, burglaries, residential robberies, kidnappings and
murder.

“ Defendant Smi th was convicted by ju ry and was

sent enc ed to life without parole plus 16 years. His conviction was affirmed by the Court of Appeal in 1996 in an unpublished opinion. ( People v. Reginald Ray York, et al

., (January 1 6, 1996), _

_ _ Cal.App.3d _

_ _ ( York ) [no npub. opn.]) “The Cour t of Appeal opi nion described the crimes committed by Petitioner and his co

- conspirators. “In this case, substantial evidence of reckless
indifference to human life exists. York and Jefferson6

kidnapped the Howard sisters at gunpoint from the parking
lot w here they worke d. They handcuffed the two sisters and threatened repeatedly to kill them. They informed the sisters that they knew where they and their family lived and had been observing the family. They were joined by Smith
and d rove the sisters aroun d for hours. T hey burglarized Reginald Ervin’s apartment. “At the Perry residence, they held the entire Perry household, including four small children, at gunpoint, while they ransacked the house. They kicked, slapped

, and beat Regi nald Ervin. They thre atened to tortu re and kill the family. They raped Yolanda, while continuing to hold her family at gunpoint. “It is apparent defendants knew that their acts involved a grave risk of the death of an innocent human being. They held two young women at gunpoi nt and in
handc uffs for hours, they held a family, including young children, at gunpoint while they ransacked the residence and raped a sister. They threatened to torture and kill the young women and the family. When Reginald Ervin attempted to break fre e to get a gun to protect his family,
defendants shot and killed him.’ ( People v. Reginald Ray York, el al., Id ., pp. 12, 13.)
“In his petition

, Smith claims he was not the actual
killer and he did not act with the intent to kill. H e also
claims he was n ot a major part icipant in the felony and did
not act with reckless indifference to human life in this matter. The Court of Appeal found otherwise.7 “The jury was instructed that in order to find the felony

- murder special circumstance to be true, it must fi nd
that defenda nts were major participants in the underlying
felonies and acted with reckless indifference to human life. (CALJIC No. 8.80.1.) ‘ Reckless indifference to human life ’ refers to a mental state which includes subjective appreciation or knowle dge by a defend ant that the defendant’s acts involved a grave risk that such acts could result in the death of an innocent human being. ( People v. Reginald Ray York, et al., Id .) “The Court also observed that ‘substantial evidence of
reckless indifference to human life’ existed for each of the defendants and it was ‘apparent defendants knew that their acts involved a grave risk of the death of a human being

. ’ ( Id .)

“ Smith was a major participant in the events and acted
with obvious re ckless indifference to human life dur ing the course of the many major crimes, including murder, committed in this case. He is not eligible for sentencing relief pursuant to Penal Code § 1170.95. See Penal Code §§ 189(e)( 1 ) and 1170.95 (a)(3)

. “As a second and independent groun d for denying
S mith ’s petition for resentencing, the court finds SB 1437 and Penal Code § 1170.95 violate the California Constitution because the Legislature unconstitutionally amended Penal Code § 190 which was passed by referendum i n 1978 by Proposition 7 and may not b e amended or repealed unless by vote of the People.8 “The petition for resentencing is denied.”

DISCUSSION

On appeal, Smith argues that section 1170.95 and
Senate Bill 1437 do not unconstitutionally amend s ection 190, and that he was entitl ed to appoint me nt of counsel prior

to the trial court making any determination as to whether a prima facie case for relief exists. He further contends that the jury’s 199 4 robbery murder special circumstance fi nding does not bar him from relief, as the Pe ople argue.
The People concede, and we agree, that section 1170.95
does not unconstitutional ly amend section 190

. Although we disagree with Smith’s characterization of the petitioning process, and specifically, the point at which entitlement to
counsel at taches, we conc lude that Smith , in the words of section 1170.95, subdivision (c), “ made a prima facie showing
that [ he ] falls within the provisions of th [at] section

, ” and was therefore entitled to appointment o f counsel and an opportunity for briefing

. 4

4 Contrary to Smith’s position th at appointment of counsel requires no prima facie showing whatsoever, we have previously held that a petitioner is entitled to c o unsel only after he has made a prima facie showing that he falls within the statute’s provisions. ( People v. Torres (2020) 46 Cal.App.5th 116 8, 117 8 ( Torres ) ) However, because Smith has made a prima facie showing that he falls within section 1170.95’s p r ovisions, he is nonetheless entitled to appointment of counsel.9

C onstitutionalit

y

The trial court denied Smith ’s petition because Senate Bill 1437 unconstitutionally amended section 190, which was passed by referendum in 1978 through Proposition 7

, and
cannot be amended or repealed except by the people’s vote.
The Peo ple concede, an d we agree, that this was error.
T hree of our sister courts have held that Senate Bill 1437 does not directly modify or amend the statutory changes effected by Proposition 7 or amend the voter’ s intent in passing Proposition 7. ( People v. Bucio (Apr. 27, 2020, B299688) ___ Cal.App.5th ___ [2020 WL 1983347, p. 2]; People v. Solis (2020) 46 Cal.App.5th 762, 774

– 780; People v.
Cruz (2020) 46 Cal.App.5th 740,753

– 759; People v. Superior
Court ( Goode n ) (2019) 42 Cal.App.5th 270, 280

– 284; People

v . Lamoureux (20 19) 42 Cal.App.5th 241, 250

– 251.) We agree with the results reached in these cases, and as the parties are also in agreement that Senate Bill 1437 does not unconstitutionally amend section 190, we do not address the
issue further here.

Mer its and Appoint ment of Counsel

Through section 1170.95, Senate Bill 1437 created a petitioning process by which a defendant convicted of murder under a felony murder theory of liability could petition to have his conviction vacated and be resentenced

. Se ction 1170.95 i nitially requires a court to determine10

whether a petitioner has made a prima facie showing that he or she falls within the provisions of the statute as set forth in subdivision (a) , inc luding that “ (1) [a] complaint, information, or indictme nt was filed ag ainst the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[,] [ ¶ ] ( 2) [t] he petitioner w as convicted of first degree or second degree murder fol lowing 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) [t] he petitioner could not be convicted of first or second degree murder because of changes to Sec tion 188 or
189 made effective January 1, 2019.” ( See § 1170.95, subd. (c); People v. Verdugo (2020) 44 Cal.App.5th 320, 327, review granted Mar. 18, 2020, S260493 ( Verdugo ).) If it is clear
from the record of conviction that the petitioner cannot
establ ish eligibility as a matter of law, the trial court may deny the petition. 5 ( Id . at p. 330.) If, however, a determination of eligibility requires an assessment of the

5 For example, if the jury was not instructed on a natural and probable conseq uences or felony murder theory of liability, the petitioner could not demonstrate eligibility as a matter of law b ecause relief is restricted to persons convicted under one of those two theories. (See People v. Lewis (2020) 43 Cal.App.5th 1 128, 1138

– 1139, review granted Mar. 18, 2020, S260598 ( Lewis ) [appellate court opinion holding that jury convicted defendant of m urder as a direct aider and abettor barred defendant from relief as a matter of law].)11

evidence concerning the commission of the petitioner’s
offense , the trial court must ap point counsel a nd permit the filing of the submissions contemplated by section 1170.95. ( Id

. at p. 332; Lewis

, supra , 43 Cal.App.5th at p. 1140.)

Analysis

In this case, the issue is whether there is anything in the record of conviction that would permit the trial cour t to determine that Smith does not fall within section 1170.95’s provisions, such that it could deny his petition wit hout appointing counsel . More specifically, the question is whether the trial court properly concluded as a matter of law

t hat the record on appeal precludes Smith from showing that he was not a major participant in the robbery and did not act
with reckle ss indifference to human life. We conclude the record provides no basis for such a determination

.

The Jury’s Special Circu mstance Finding Does Not Preclude Eligibility

The People urge us to affirm the tri al court’s denial of
Smith ’s petition on the basis of the jury’s 1994 robbery murder special circumstance finding (§ 190.2, subd. (a)(17)),
which we affirmed in 1996. The ju ry’s true findi ng was predicated on its
determination that Smith was both a “major participant” in the robbery and acted with “reckless indifference to human12

life

. ” Under section 1170.95, the petitioner must make a prima facie showing that he “ could not b e convicted of first or second degree murder because of changes to Section 188 or

1 89 made effective January 1, 2019. ” ( § 1170.95, subd

. (a)(3).) The language of section 189, subdivision (e)(3), as amended by Senate Bill 1437, tracks the language of the special circums tance provision. Section 189, subdivision (e) now provides that “[a ] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [(in this case, robbery)] in which a death occurs is liable for murder only if one of the following is proven: [¶]

. . . [¶] (3) The person was a major pa rticipant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” The People’s argument has facial ap peal: the plai n language of the requirements underlying the jury’s robbery
murder special circumstance finding in Smith’s case (i.e. “major participant” and “reckless indifference to human life”) is identical to the language setting forth the requirements
for murder lia bility under amended section 189. A difficulty arises, however, bec ause the jury’s special circumstance finding was made prior to issuance of our Supreme Court’s opinions in People v. Banks (2015) 61 Cal.4th 788 ( Banks )
and People v. Clark (2016) 63 Cal.4 th 522 ( Clark ), which construed the meanings of “major participant” and “reckless indifference to human life” “in a significantly different, and narrower manner than courts had previously.” ( Torres

, supra , 46 Cal.App.5th at p. 1179.) As a consequence, th e13

factual issues that the jury was asked to resolve in 199 4 are
not the same factual issues our Supreme Court has since identified as controlling . It would be inappropriate to “treat[] [the 199 4 ] findings as if they resolved key disputed
fa cts” when the j ury did not have the same questions before them. ( Id . at p. 1180.) As we recently held, courts may not “defer to the jury’s pre

- Banks and Clark factual findings that [the petitioner] was a major participant who acted with
reckless indiffer ence to human l ife as those terms were interpreted at the time” when determining th e petitioner’s eligibility for resentencing as a matter of law , in light of the considerations identified in those two opinions . ( Id . at

p. 1179.) The People acknowledge t hat our underst anding of “major participant” and “reckless indifference to human li fe”
have evolved with the issuance of Banks and Clark , but argue that, in the absence of a successful challenge to the special circumstance findings, the trial court “w as ob ligated

to assu me the conviction was lawful and comported with the post

- Banks guide lines .” We disagree , as the People’s
contention is inconsistent with t he language and operation of
section 1170.95. S ection 1170.95 provides that “[a] person convicted of felony murder o r murder under a natural and probable consequences theory m ay file a petition with the court that sentenced the pe titioner to have the petitioner’ s murder conviction vacated

. . . .” ( § 1170.95, subd. (a).) The

statute only specifically re ferences specia l circumstance findings in subdivision (d)(2), which states , “If there was a14

prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court sh all vacate the petitioner’s conviction and resentence the petitioner.” Th ere is no corresponding provision indicating that a jury’s prior special circumstance true finding, or a court of appeal’s affirmation thereof, operates as an automatic statutory bar to eligibility . The absence of such a provision makes sense.
Determinin g whether a petitioner was a “major participant”
who acted with “reckless indifference” as those terms are currently used in section 189 may require more than deference to a jury’s s pecial circumst ance true finding

— indeed, in cases like Smith’s

, where the finding was made
before Banks and Clark were issued and not affirmed subsequent to those cases, it requires an analysis of the facts
involved. 6 Moreover, the potential remedies outli ned in section 1170.95 indicate that the Legislature anticipated some

spe cial circumstance findings would not preclude eligibility as a matter of law, and that those findings would be
inconsistent with vacatur of the corresponding murder
conviction. Secti on 1170.95, sub division (d)(3) provides, “If the prosecution fai ls to sustain its burden of proof, the prior

6 We do not address whether a jury’s pos t

- Banks and Cla rk special circumstance true finding or a court’s affirmance of a special circumstance finding following Banks

an d Clark may be dispositive as a matter of law, as neither question is before us in the present case.15

conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be
resentenced on the remain ing charges.” (Italics added.) The

statute is clearly designed to resolve the question of whether
a murder conviction

— not a special circumstance

— is sufficiently supported. If the conviction cannot stand, the special circumstance will necessarily be vaca ted as well.
In this case, the jury’s special circumstance findi ng was affirmed in 1996, approximately two decades before Banks
and Clark were decided. No court has affirmed the special circumstance finding post

- Banks and Clark

. We cannot
affirm the tria l court’s rulin g on this ground, as the People

urge.

The Trial Court Erred in Summarily Denying the

Petition Based on Its Evaluation of Facts Recited in the Record of Conviction

Here, without appointing counsel to Smith or permitting counsel to make a fi ling, the trial court reviewed

our 1996 appellate opinion and considered the facts as described in our discussion of the sufficiency of the evidence supporting the special circumstance. The trial court made a
determination that those facts were sufficient to establish

t hat Smith was a major participant in the u nderlying felony
and acted with reckless indifference to human life. But that
factual record is not the only consideration that the trial
court must take into account f or purposes of section 1170.95

.16

Where the r e cord of conviction does not preclude a petitioner from making a prima facie showing that he falls within the statute’s provisions as a matter of law, the petitioner is not confined to presenting evidence contained in the record of
conviction in seeking re l ief. Section 1170.95 provides “ the petitioner may rely on the record of conviction or offer new or
additional evidence to meet [his] burden[]

. ” 7 ( § 1170, subd. (d)(3).) It is conceivable that Smith may be able to provide
evidence not pres ented at trial that would demonstrate either that he was not a major participant in the robbery or did not act with reckless indifference to human life. By ruling prior to the appointment of counsel, the trial court deprived Smith of the oppor t unity to de velop

, with the aid of
counsel

, a factual record beyond the record of conviction. Only after giving a petit i oner the opportunity to file a reply, in which he may develop a factual record beyond the record of conviction, is a trial court in a p o sition to e valuate
whether there has been a prima facie showing of entitlement
to relief.
We therefore cannot conduct our own assessment of the
trial evidence to determine whether Smith was a major participant and acted with reckless indifference to human life, or to use that recor d evidence to inquire whether the deprivation of counsel was harmless error , as o ur colleagues
in Division Two of the Fourth District did in People v. Terrell

7 The prosecution is also p ermitted to rel y on evidence outside the record of conviction to meet its burden. (§ 1170, subd. (d)(3).)17

Law ( A pr. 27 , 2020, E072845) ___ Cal.App.5th ___ [ 2020 WL
2125716 ] ( Law )

. T he pro cedural posture in Law was similar

to the instant case. The trial court denied Law’s section 1170.95 petition prior to appointment of counsel on the basis of a robbery

- murder spe c ial circumstance true finding made before our Supreme Court had issued its d ecisions in Ban ks

a nd Clark

. ( Law

, supra , ___ Cal.App.5th ___ [ 2020 WL 2125716, p. 1 ] .) On appeal from the denial of Law’s section 1170.95 petition, t he appellate court held tha t the existence of a pre

- Banks and Clark special circumstances finding alone did not preclud e relief (a holding consistent with our ruling here)

. Rather than remand the case to the trial court for appointment of counsel, however, t he Law court undertook
i t s own analysis of the existing record facts to affirm the
lower court’s summ ary dismissal o f the petition. With respect to appointment of counsel, the court held that, regardless of whether Law was entitled to couns e l, any error was harmless, because counsel could not have obtained a
more favorable result

, “ [g]iven the trial evid ence

. ” ( Law

,

s upra , ___ Cal.App.5th ___ [ 2020 WL 2125716, p p

. 5, 7 ] .) We respectfully disagree with this reasoning

. I n enacting Senate Bill 1437, the Legislature provided that a petitioner may meet his or her burden by offer ing new or additional evidence

. Therefore, w e cannot say at this stage of the proceedings that failure to appoint counsel was harmless “given the trial evide n ce”; by the express terms of section 1170.95, subd ivision (d)(3), counsel is not limited to
the trial evidence.18 Because neither of the trial c ourt’s reasons for denying
Smith ’s petition is valid, and it does not appear that he is otherwise ineligible for r elief as a matter of law as the People argue, we reverse and remand the matter to the trial court to appoint counsel and consid er briefing

.

D ISPOSITION

The trial court’s order denying Smith ’s resentencing petition is reversed and the matter remanded for the trial court to appoint counsel and conduct further proceedings in
accordance with the terms of section 1170.95.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.