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.

 B298642

 (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.

Emry J. Allen, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Acting Senior Assistant Attorney General, David E. Madeo, 

Deputy Attorney General, Idan Ivri, Acting Supervising

Deputy Attorney General, for Plaintiff and Respondent.
2

__________________________

Defendant and appellant David Shawn Smith appeals 

from a postjudgment order denying his petition for 

resentencing pursuant to Penal Code section 1170.951 and 

Senate Bill No. 1437 (Senate Bill 1437). As relevant here, 

the statute and Senate bill provide for vacatur 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 

kill, and (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 unconstitutionally amends section 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 indicated.

2 Smith also contends that the trial court was required 

to issue an order to show cause and conduct a hearing on the 

matter. The court has no duty to do so prior to appointment 

of counsel and briefing, and Smith does not argue otherwise. 

As we are remanding for appointment of counsel and 

briefing, the issue is premature and we decline to address it 

here.
3

that the trial court’s ruling should be affirmed 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 trial court. 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 PROCEDURAL HISTORY

Murder 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 of a 

robbery pursuant 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 three counts of rape (§§ 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 with his co-defendants 

Anthony D. Jefferson and Reginald Ray York, as recited in 
4

Appeal

Smith appealed, contending, as pertinent here, that 

there was insufficient evidence that 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. 12–13.) This 

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 

subjective appreciation 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 indifference (CALJIC No. 8.80.1). (Id. at 

p. 13.)

Section 1170.95 Petition for Resentencing

Petition for Resentencing

On January 25, 2019, Smith petitioned for 

resentencing 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 section 1170.95 and was 

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 trial court denied 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 his 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 Smith was convicted by jury and was 

sentenced 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 16, 1996), ___ Cal.App.3d ___ (York) [nonpub. 

opn.])

“The Court of Appeal opinion described the crimes 

committed by Petitioner and his co-conspirators.

“In this case, substantial evidence of reckless 

indifference to human life exists. York and Jefferson 
6

kidnapped the Howard sisters at gunpoint from the parking 

lot where they worked. 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 drove the sisters around for hours. They 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 

Reginald Ervin. They threatened to torture 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 gunpoint and in 

handcuffs 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 free 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. He also 

claims he was not a major participant 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 find 

that defendants 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 knowledge by a defendant 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 reckless indifference to human life during 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 ground for denying 

Smith’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 in 1978 by 

Proposition 7 and may not be 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 section 

190, and that he was entitled to appointment 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 1994 robbery murder special circumstance finding 

does not bar him from relief, as the People argue.

The People concede, and we agree, that section 1170.95 

does not unconstitutionally amend section 190. Although we 

disagree with Smith’s characterization of the petitioning 

process, and specifically, the point at which entitlement to 

counsel attaches, we conclude 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 of counsel and an 

opportunity for briefing.

4

 

4 Contrary to Smith’s position that appointment of 

counsel requires no prima facie showing whatsoever, we 

have previously held that a petitioner is entitled to counsel 

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 1168, 1178 (Torres)) However, because Smith 

has made a prima facie showing that he falls within section 

1170.95’s provisions, he is nonetheless entitled to 

appointment of counsel.
9

Constitutionality

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 People concede, and we agree, that this was error. 

Three 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 (Gooden) (2019) 42 Cal.App.5th 270, 280–284; People 

v. Lamoureux (2019) 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.

Merits and Appointment 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. 

Section 1170.95 initially requires a court to determine 
10

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), including 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) [t]he 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) [t]he petitioner could not be convicted of first or 

second degree murder because of changes to Section 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 

establish 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 consequences or felony murder theory 

of liability, the petitioner could not demonstrate eligibility as 

a matter of law because relief is restricted to persons 

convicted under one of those two theories. (See People v. 

Lewis (2020) 43 Cal.App.5th 1128, 1138–1139, review 

granted Mar. 18, 2020, S260598 (Lewis) [appellate court 

opinion holding that jury convicted defendant of murder 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 appoint counsel and 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 court to 

determine that Smith does not fall within section 1170.95’s 

provisions, such that it could deny his petition without 

appointing counsel. More specifically, the question is 

whether the trial court properly concluded as a matter of law

that the record on appeal precludes Smith from showing that 

he was not a major participant in the robbery and did not act

with reckless indifference to human life. We conclude the 

record provides no basis for such a determination.

The Jury’s Special Circumstance Finding Does 

Not Preclude Eligibility

The People urge us to affirm the trial 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 jury’s true finding was predicated on its 

determination that Smith was both a “major participant” in 

the robbery and acted with “reckless indifference to human 
12

life.” Under section 1170.95, the petitioner must make a 

prima facie showing that he “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)(3).) The language of section 189, subdivision (e)(3), as 

amended by Senate Bill 1437, tracks the language of the 

special circumstance 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 participant 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 appeal: the plain 

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 liability under amended section 189. A difficulty 

arises, however, because 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.4th 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, the 
13

factual issues that the jury was asked to resolve in 1994 are 

not the same factual issues our Supreme Court has since 

identified as controlling. It would be inappropriate to 

“treat[] [the 1994] findings as if they resolved key disputed 

facts” when the jury 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 indifference to human life as those terms were 

interpreted at the time” when determining the 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 that our understanding of 

“major participant” and “reckless indifference to human life” 

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 “was obligated 

to assume the conviction was lawful and comported with the 

post-Banks guidelines.” We disagree, as the People’s 

contention is inconsistent with the language and operation of 

section 1170.95. Section 1170.95 provides that “[a] person 

convicted of felony murder or murder under a natural and 

probable consequences theory may file a petition with the 

court that sentenced the petitioner to have the petitioner’s 

murder conviction vacated . . . .” (§ 1170.95, subd. (a).) The 

statute only specifically references special circumstance 

findings in subdivision (d)(2), which states, “If there was a 
14

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 shall vacate the 

petitioner’s conviction and resentence the petitioner.” There 

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. 

Determining 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 special circumstance 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 outlined in section 

1170.95 indicate that the Legislature anticipated some

special 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. Section 1170.95, subdivision (d)(3) provides, “If 

the prosecution fails to sustain its burden of proof, the prior 

 

6 We do not address whether a jury’s post-Banks and 

Clark special circumstance true finding or a court’s 

affirmance of a special circumstance finding following Banks

and 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 remaining 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 vacated as well.

In this case, the jury’s special circumstance finding 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 trial court’s ruling 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 filing, 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 

that Smith was a major participant in the underlying 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 for purposes of section 1170.95.
16

Where the record 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 relief. 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 presented 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 opportunity to develop, with the aid of 

counsel, a factual record beyond the record of conviction. 

Only after giving a petitioner 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 position to evaluate 

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 record evidence to inquire whether the 

deprivation of counsel was harmless error, as our colleagues 

in Division Two of the Fourth District did in People v. Terrell 

 

7 The prosecution is also permitted to rely on evidence 

outside the record of conviction to meet its burden. (§ 1170, 

subd. (d)(3).)
17

Law (Apr. 27, 2020, E072845) ___ Cal.App.5th ___ [2020 WL 

2125716] (Law). The procedural 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 special circumstance true finding made 

before our Supreme Court had issued its decisions in Banks

and Clark. (Law, supra, ___ Cal.App.5th ___ [2020 WL 

2125716, p. 1].) On appeal from the denial of Law’s section 

1170.95 petition, the appellate court held that the existence 

of a pre-Banks and Clark special circumstances finding alone

did not preclude relief (a holding consistent with our ruling 

here). Rather than remand the case to the trial court for 

appointment of counsel, however, the Law court undertook 

its own analysis of the existing record facts to affirm the 

lower court’s summary dismissal of the petition. With 

respect to appointment of counsel, the court held that, 

regardless of whether Law was entitled to counsel, any error 

was harmless, because counsel could not have obtained a 

more favorable result, “[g]iven the trial evidence.” (Law, 

supra, ___ Cal.App.5th ___ [2020 WL 2125716, pp. 5, 7].)

We respectfully disagree with this reasoning. In 

enacting Senate Bill 1437, the Legislature provided that a 

petitioner may meet his or her burden by offering new or 

additional evidence. Therefore, we cannot say at this stage 

of the proceedings that failure to appoint counsel was 

harmless “given the trial evidence”; by the express terms of 

section 1170.95, subdivision (d)(3), counsel is not limited to 

the trial evidence.
18

Because neither of the trial court’s reasons for denying 

Smith’s petition is valid, and it does not appear that he is 

otherwise ineligible for relief as a matter of law as the 

People argue, we reverse and remand the matter to the trial 

court to appoint counsel and consider briefing.

DISPOSITION

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.