Filed 1/29/21 P. v. McDermott CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ROHAN MCDERMOTT,

Defendant and Appellant.

B302013

(Los Angeles County

Super. Ct. No. SA052445)

APPEAL from an order of the Superior Court of Los 

Angeles County, Mark E. Windham, Judge. Affirmed.

Robert D. Bacon, 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, Assistant 

Attorney General, Charles S. Lee and Charles J. Sarosy, Deputy 

Attorneys General, for Plaintiff and Respondent.

________________________
2

Rohan McDermott appeals from the trial court’s denial of 

his Penal Code section 1170.95 petition1for vacation of his first 

degree murder conviction and resentencing. Because McDermott

is ineligible for relief as a matter of law, we affirm the court’s 

order. 

FACTUAL AND PROCEDURAL BACKGROUND2

1. The murder and McDermott’s conviction 

In 2004, McDermott and Alcliff Daley planned to steal 

marijuana from Troy Lewis and Dwane Godoy. After luring the 

men into Daley’s apartment, Daley pointed a gun at Godoy and 

Lewis, and McDermott taped their hands behind their backs. 

Daley threatened to kill them and leave their bodies to rot in a 

closet. When Daley noticed that Godoy had managed to free his 

hands, he put the gun to Godoy’s head and again threatened to 

kill him. McDermott retaped Godoy’s hands and also taped his 

feet. When McDermott and Daley exited the apartment, Godoy 

1 All further undesignated statutory references are to the 

Penal Code.

2 On May 20, 2020, the People filed a motion requesting that 

we take judicial notice of portions of the record in case 

No. B193585, including our prior unpublished opinion, excerpts of 

the clerk’s transcript (including the verdict and a portion of the 

jury instructions), an order denying McDermott’s state petition 

for writ of habeas corpus, a report and recommendation and order 

regarding the denial of his federal petition for writ of habeas 

corpus, the Ninth Circuit Court of Appeals’ order denying his 

request for a certificate of appealability, and the United States 

Supreme Court’s order denying a writ of certiorari. We grant the 

motion. (Evid. Code, §§ 451, subd. (a), 452, subd. (d).) We derive 

the factual and procedural background primarily from our 

unpublished opinion in this case.
3

managed to free himself. But, when he tried to flee, McDermott 

was at the apartment’s front door. McDermott told Godoy, 

“ ‘You’re not going nowhere.’ ” The two men struggled, and Godoy 

got away. McDermott chased him, but he hid underneath a car 

in a neighboring yard. Lewis did not escape. His body was 

discovered in the apartment; he had been shot in the forehead, 

and his hands were bound behind his back with tape. 

A jury found McDermott guilty of first degree murder with 

true findings on special circumstance allegations that the murder 

was committed during an attempted kidnapping for ransom and 

an attempted robbery. (§ 190.2, subd. (a)(17)(A) & (B)). It also 

found true an allegation that a principal was armed during the 

offense. (§ 12022, subd. (a)(1).) The trial court sentenced 

McDermott to life in prison without the possibility of parole, plus 

one year. In 2007, this division affirmed the judgment of 

conviction. (People v. McDermott (June 28, 2007, B193585) 

[nonpub. opn.].)

2. Section 1170.95 petition 

On September 6, 2019, after passage of Senate Bill 

No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), McDermott

filed a petition for vacation of his murder conviction and 

resentencing. Using a preprinted form, he checked boxes stating 

that he had been convicted of murder pursuant to the felony 

murder rule or the natural and probable consequences doctrine; 

he was not the actual killer; he did not, with the intent to kill, aid 

and abet the actual killer; and he could not now be convicted of 

murder in light of changes to sections 188 and 189 effectuated by 

Senate Bill 1437. He also checked a box requesting the 

appointment of counsel.
4

On September 10, 2019, the trial court summarily denied 

the petition. McDermott was not present, and was not 

represented by counsel. The court found McDermott was 

ineligible for relief as a matter of law because the jury’s true 

findings on the special circumstance allegations established he 

intended to kill, or was a major participant in the murder and 

acted with reckless indifference to human life.

On September 27, 2019, McDermott filed a notice of appeal. 

Attached was a two-page document explaining that he had not 

acted as a major participant in the murder with reckless 

indifference to human life, as those terms were defined in People 

v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 

63 Cal.4th 522 (Clark).

DISCUSSION

McDermott contends that the trial court erred by 

summarily dismissing his petition based on the jury’s special 

circumstance finding, without appointing counsel for him. We 

disagree.

1. Applicable legal principles

a. Senate Bill 1437

Senate Bill 1437, which took effect on January 1, 2019,

limited accomplice liability under the felony-murder rule and 

eliminated the natural and probable consequences doctrine as it 

relates to murder, to ensure that a person’s sentence is 

commensurate with his or her individual criminal culpability. 

(People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile); People 

v. Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review 

granted Mar. 18, 2020, S260493; People v. Munoz (2019) 39 

Cal.App.5th 738, 749–750, 763, review granted Nov. 26, 2019, 

S258234.) 
5

As relevant here, prior to Senate Bill 1437’s enactment, 

under the felony-murder rule “a defendant who intended to 

commit a specified felony could be convicted of murder for a 

killing during the felony, or attempted felony, without further 

examination of his or her mental state.” (People v. Lamoureux

(2019) 42 Cal.App.5th 241, 247–248; People v. Powell (2018)

5 Cal.5th 921, 942.) Senate Bill 1437 amended the felony-murder 

rule by adding section 189, subdivision (e), which provides that a 

participant in the perpetration of qualifying felonies is liable for 

felony murder only if the person: (1) was the actual killer; 

(2) was not the actual killer but, with the intent to kill, acted as a 

direct aider and abettor; or (3) the person was a major participant 

in the underlying felony and acted with reckless indifference to 

human life, as described in section 190.2, subdivision (d). 

(Gentile, supra, 10 Cal.5th at p. 842.) It amended the natural 

and probable consequences doctrine by adding subdivision (a)(3) 

to section 188, which states that “[m]alice shall not be imputed to 

a person based solely on his or her participation in a crime.” 

b. Section 1170.95’s petitioning procedure

Senate Bill 1437 also added section 1170.95, which created 

a procedure whereby persons convicted of murder under a nowinvalid felony-murder or natural and probable consequences 

theory may petition for vacation of their convictions and 

resentencing. A defendant is eligible for relief under section 

1170.95 if he meets three conditions: (1) he must have been 

charged with murder under a theory of felony murder or murder 

under the natural and probable consequences doctrine, (2) must 

have been convicted of first or second degree murder, and 

(3) could no longer be convicted of first or second degree murder 
6

due to changes to sections 188 and 189 effectuated by Senate Bill 

1437. (§ 1170.95, subd. (a).) 

Evaluation of a section 1170.95 petition requires a multistep process: an initial review to determine the petition’s facial 

sufficiency; a prebriefing, “ ‘first prima facie review’ ” to 

preliminarily determine whether the petitioner is statutorily 

eligible for relief as a matter of law; and a second, postbriefing 

prima facie review to determine whether the petitioner has made 

a prima facie case that he or she is entitled to relief. (People v. 

Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington), review

granted Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th 

at pp. 327–330, rev.gr.) 

When conducting the first prima facie review, the court

must determine, based upon its review of readily ascertainable

information in the record of conviction and the court file, whether

the petitioner is statutorily eligible for relief as a matter of law,

i.e., whether he or she was convicted of a qualifying crime, based

on a charging document that permitted the prosecution to

proceed under the natural and probable consequences doctrine or

a felony-murder theory. (Tarkington, supra, 49 Cal.App.5th at

pp. 897–898, rev.gr.; Verdugo, supra, 44 Cal.App.5th at pp. 329–

330, rev.gr.) If it is clear from the record of conviction that the

petitioner cannot establish eligibility as a matter of law, the trial

court may summarily deny the petition without appointing

counsel. (Tarkington, at pp. 898, 900–902; People v. Torres (2020)

46 Cal.App.5th 1168, 1178 (Torres), review granted June 24,

2020, S262011; Verdugo, at p. 332; People v. Lewis (2020) 43

Cal.App.5th 1128, 1139–1140, review granted Mar. 18, 2020,

S260598.)
7

If, however, the petitioner’s eligibility is not established as

a matter of law, the court must appoint counsel and permit

briefing to determine whether the petitioner has made a prima

facie showing he or she is entitled to relief. (Verdugo, supra,

44 Cal.App.5th at p. 330, rev.gr.; Tarkington, supra, 49

Cal.App.5th at p. 898, rev.gr.) If the petitioner makes such a

showing, the court must issue an order to show cause and 

conduct a hearing to determine whether to vacate the murder 

conviction and resentence the petitioner on any remaining 

counts. (§ 1170.95, subds. (c), (d); People v. Nguyen (2020) 53 

Cal.App.5th 1154, 1165–1166.) At that hearing, the prosecution 

has the burden to prove, beyond a reasonable doubt, that the 

defendant is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) 

2. Application here

a. Contentions

McDermott challenges the trial court’s ruling on several

grounds. First, he argues that his petition made a prima facie 

showing that he falls within the parameters of section 1170.95; 

therefore, the court erred by summarily denying his petition and 

failing to appoint counsel for him. Second, he contends that the 

trial court erred by examining the record of conviction to 

determine eligibility prior to the section 1170.95, subdivision (d) 

hearing stage. In his view, section 1170.95 was “designed . . . to 

create a different factual record on which to adjudicate the case,” 

and a petitioner’s filing of a facially compliant petition 

“institute[s] a proceeding in which the prosecution has a new 

burden of proof beyond a reasonable doubt on a potentially 

enlarged factual record, beyond the record of conviction.” Third, 

he urges that the court erred by finding him ineligible based on 

the jury’s special circumstance findings, which predated our 
8

Supreme Court’s decisions in Banks and Clark. He argues that 

he did not, in fact, “manifest reckless indifference to human life” 

during the offense because, among other things, Daley 

purportedly threatened him with the gun and he acted under 

duress. And no court has found, subsequent to Banks and Clark,

that he was a major participant who acted with reckless 

indifference to human life.

The People counter that the trial court properly reviewed 

the record of conviction and was not required to appoint counsel 

because McDermott was ineligible as a matter of law, given the 

jury’s special circumstance findings. Further, they argue, any 

error was harmless because it is not reasonably probable that 

McDermott would have obtained a more favorable result had 

counsel been appointed.

b. The trial court did not err by reviewing the record 

of conviction or by declining to appoint counsel

We are not persuaded by McDermott’s contention that the 

trial court improperly reviewed the record of conviction. 

Numerous courts of appeal, including this one, have rejected the 

argument that a trial court is limited to consideration of the 

allegations in the petition when determining whether the 

petitioner has made a prima facie showing of eligibility. To the 

contrary, a court may consider readily ascertainable information 

in the record of conviction and the court file, including a prior 

court of appeal opinion. (See People v. Palacios (2020) 58

Cal.App.5th 845, 855–856; People v. Gomez (2020) 52 Cal.App.5th 

1, 15–16 (Gomez), review granted Oct. 14, 2020, S264033; People

v. Soto (2020) 51 Cal.App.5th 1043, 1055, review granted

Sept. 23, 2020, S263939; Tarkington, supra, 49 Cal.App.5th at

p. 898, rev.gr.; People v. Lee (2020) 49 Cal.App.5th 254, 262–263,
9

review granted July 15, 2020, S262459; People v. Law (2020) 

48 Cal.App.5th 811, 821, review granted July 8, 2020, S262490;

Torres, supra, 46 Cal.App.5th at pp. 1173, 1178, rev.gr.; Verdugo,

supra, 44 Cal.App.5th at pp. 329–330, rev.gr.; People v. Lewis,

supra, 43 Cal.App.5th at pp. 1137–1138 & fn. 7, rev.gr.)

We likewise reject McDermott’s argument that the trial 

court was required to appoint counsel once he filed a facially 

sufficient petition. Again, we and other courts have held that a 

trial court may summarily deny a petition without appointing 

counsel if the record shows the defendant is ineligible as a matter 

of law. (See Tarkington, supra, 49 Cal.App.5th at pp. 901–902, 

rev.gr.; Torres, supra, 46 Cal.App.5th at p. 1173, rev.gr.; Verdugo,

supra, 44 Cal.App.5th at pp. 332–333, rev.gr.; People v. Lewis,

supra, 43 Cal.App.5th at pp. 1139–1140, rev.gr.; People v.

Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18,

2020, S260410; but see People v. Cooper (2020) 54 Cal.App.5th 

106, 109, review granted Nov. 10, 2020, S264684.)3 

McDermott argues that he had a constitutional right to 

counsel at the outset because the petitioning procedure under 

section 1170.95 is a critical stage of a criminal proceeding. 

Therefore, the court’s failure to appoint counsel amounted to 

structural error, requiring per se reversal. We disagree.

3 Our California Supreme Court is currently reviewing

whether a trial court may consider the record of conviction in

determining whether a defendant has made a prima facie 

showing of eligibility for relief under section 1170.95, and when 

the right to counsel arises under section 1170.95, subdivision (c). 

(People v. Lewis, S260598.) Pending further guidance from our 

high court, however, McDermott’s arguments do not persuade us 

to deviate from our prior holdings on these points.
10

Under both the state and federal Constitutions, a

defendant has a right to counsel at all critical stages of a criminal

prosecution. (U.S. Const., 6th Amend.; Cal. Const., art I,

§ 15; Gardner v. Appellate Division of Superior Court (2019)

6 Cal.5th 998, 1004 (Gardner); People v. Doolin (2009) 45 Cal.4th

390, 453; People v. Rouse (2016) 245 Cal.App.4th 292, 296–

297 (Rouse).) Critical stages are those “events or proceedings in

which the accused is brought in confrontation with the state,

where potential substantial prejudice to the accused’s rights

inheres in the confrontation, and where counsel’s assistance can

help to avoid that prejudice.” (Gardner, at pp. 1004–1005; Rouse,

at p. 297 [“ ‘ “[T]he essence of a ‘critical stage’ is . . . the adversary

nature of the proceeding, combined with the possibility that a

defendant will be prejudiced in some significant way by the

absence of counsel.” [Citation.]’ ”].) Thus, arraignments,

preliminary hearings, postindictment lineups and interrogations,

plea negotiations, and sentencing are all critical stages.

(Gardner, at p. 1005; Rouse, at p. 297.) On the other hand, where

legislation gives inmates serving otherwise final sentences the 

benefit of ameliorative changes to applicable sentencing laws, the 

Sixth Amendment is not necessarily implicated. (See People v.

Perez (2018) 4 Cal.5th 1055, 1063–1064; People v. Howard (2020)

50 Cal.App.5th 727, 740 [“The retroactive relief provided by

section 1170.95 reflects an act of lenity by the Legislature” and

does not implicate a defendant’s Sixth Amendment rights]; People

v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [“the retroactive 

relief . . . afforded by Senate Bill 1437 is not subject to Sixth 

Amendment analysis” and defendants had no right to a jury trial 

on a section 1170.95 petition].)
11

The first, prebriefing prima facie review of a petition under

section 1170.95 is not a critical stage of the proceedings. At that

point, the court is simply tasked with determining whether there

is a prima facie showing the petitioner falls within the provisions

of the statute as a matter of law, making all factual inferences in

his or her favor. (Verdugo, supra, 44 Cal.App.5th at p. 329,

rev.gr.; Tarkington, supra, 49 Cal.App.5th at p. 898, rev.gr.) This 

initial prima facie review is not an adversarial proceeding. 

Indeed, in the instant case it does not appear that the People

filed briefing or otherwise played any role in the trial court’s 

ruling. Adjudication of a section 1170.95 petition at the 

eligibility stage is not akin to a sentencing hearing. The court

does not rule on disputed issues of fact; it must make all factual

inferences in favor of the petitioner. (Verdugo, at p. 329;

Tarkington, at p. 898.) And, the court is not called upon to 

exercise its discretion in any respect. Nor do we detect the 

possibility that counsel’s absence could prejudice a petitioner in a 

significant way, or that counsel’s presence at this stage is 

necessary to preserve his rights. At the eligibility stage, the 

court’s ruling must turn on undisputed facts that render a 

petitioner ineligible as a matter of law. Counsel’s representation 

at this stage cannot meaningfully impact this analysis. 

People v. Rodriguez (1998) 17 Cal.4th 253, cited by 

McDermott, does not compel a contrary conclusion. In Rodriguez,

the sentencing court erroneously believed, prior to issuance of 

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, that it 

lacked discretion to strike prior felony conviction allegations 

under the Three Strikes law. (Rodriguez, at p. 255.) Rodriguez 

concluded that the matter had to be remanded to allow the trial 

court to exercise its discretion on the question, and should do so 
12

in the presence of defendant and his counsel. (Id. at pp. 255–

257.) But such a remand for resentencing is unlike the first 

prima facie eligibility review on a section 1170.95 petition: in the 

former, the court exercises its discretion and sentences the 

defendant; in the latter, it does not. 

Thus, if the trial court here correctly concluded that the 

special circumstance findings precluded relief as a matter of law, 

it was not required to appoint counsel before denying the 

petition. We turn to that question.

c. The trial court correctly denied the petition because 

McDermott is ineligible for relief as a matter of law

To be eligible for resentencing, McDermott was required to 

show that he “could not be convicted of first or second degree 

murder because of changes to Section 188 or 189” made by Senate 

Bill 1437. (§ 1170.95, subd. (a)(3).) Under section 189, as 

amended, a defendant can be convicted of felony murder if he was 

the actual killer; acted as a direct aider and abettor with the 

intent to kill; or was a major participant in the underlying felony 

and acted with reckless indifference to human life. (§ 189, 

subd. (e); People v. Murillo (2020) 54 Cal.App.5th 160, 167

(Murillo), review granted Nov. 18, 2020, S264978.) 

McDermott was tried on a felony murder theory; the 

natural and probable consequences doctrine was not at issue. As 

noted, the jury found true two special circumstance allegations: 

that the murder was committed during an attempted kidnapping 

for ransom and an attempted robbery. (§ 190.2, subd. (a)(17)(A) 

& (B)). Regarding the special circumstances, the jury was 

instructed with CALCRIM No. 703. That instruction provided 

that if the jury concluded a defendant was guilty of first degree 

murder, but was not the actual killer, to prove the special 
13

circumstances the People had to prove either that the defendant 

intended to kill, or that he was a major participant in the crime 

and acted with reckless indifference to human life. The 

instruction further provided that a person acts with reckless 

indifference to human life when he or she “knowingly engages in 

criminal activity that he or she knows involves a grave risk of 

death.” 

Thus, the jury’s findings on the special circumstance 

allegations make McDermott ineligible for resentencing as a

matter of law. “The requirements for the felony-murder special

circumstance did not change as a part of Senate Bill No. 1437,

and are identical to the new requirements for felony murder

following the enactment of Senate Bill No. 1437. In both

instances, the defendant must have either actually killed the

victim [citations]; acted with the intent to kill in aiding, abetting,

counseling, commanding, inducing, soliciting, requesting, or

assisting in the killing [citations]; or been a major participant in

the underlying felony and acted with reckless indifference to

human life [citations]. By finding a special circumstance 

allegation true, the jury makes precisely the same finding it must 

make in order to convict a defendant of felony murder under the 

new law. Because a defendant with a felony-murder special 

circumstance could still be convicted of murder, he is ineligible as 

a matter of law to have his murder conviction vacated.” (People 

v. Galvan (2020) 52 Cal.App.5th 1134, 1140–1141 (Galvan), 

review granted Oct. 14, 2020, S264284; see People v. Jones (2020) 

56 Cal.App.5th 474, 482, review granted Jan. 27, 2021, S265854

(Jones); Gomez, supra, 52 Cal.App.5th at p. 15, rev.gr.; Murillo,

supra, 54 Cal.App.5th at p. 167, rev.gr.; People v. Allison (2020) 

55 Cal.App.5th 449, 457 (Allison); People v. Nunez (2020) 57 
14

Cal.App.5th 78, 91 (Nunez), review granted Jan. 13, 2021, 

S265918.) 

McDermott argues that the jury’s special circumstance 

findings are not preclusive in his case, because they predated our 

Supreme Court’s decisions in Banks and Clark. “Banks and 

Clark ‘clarified “what it means for an aiding and abetting 

defendant to be a ‘major participant’ in a crime who acted with a 

‘reckless indifference to human life.’ ” ’ [Citation.] Banks 

identified certain factors to be considered in determining whether 

a defendant was a major participant; Clark identified factors to 

guide the determination of whether the defendant acted with 

reckless indifference to human life.” (Gomez, supra, 52 

Cal.App.5th at p. 13, fn. 5, rev.gr.)

The appellate courts are split on the question of whether a 

pre-Banks and Clark special circumstance finding makes a 

petitioner ineligible for section 1170.95 relief as a matter of law. 

(See Jones, supra, 56 Cal.App.5th at pp. 478–479, rev.gr.

[collecting cases].) Our colleagues in Division Five have 

concluded that such a special circumstance does not, by itself,

render a petitioner ineligible for relief. (Torres, supra, 46 

Cal.App.5th at p. 1178, rev.gr.) Torres reasoned that Banks and 

Clark “construed section 190.2, subdivision (d) in a significantly 

different, and narrower manner than courts had previously 

construed the statute.” (Id. at p. 1179.) “Accordingly, in 

determining if [petitioner] could be convicted today of first degree 

murder, we cannot simply defer to the jury’s pre-Banks and Clark 

factual findings that [petitioner] was a major participant who 

acted with reckless indifference to human life as those terms 

were interpreted at the time.” (Ibid.) “No court has affirmed the 

special circumstances findings at issue post-Banks and Clark. 
15

There is therefore a possibility that [the petitioner] was punished 

for conduct that is not prohibited by section 190.2 as currently 

understood, in violation of [petitioner’s] constitutional right to 

due process.” (Id. at p. 1180, internal fn. omitted; People v. Smith 

(2020) 49 Cal.App.5th 85, 93 (Smith), review granted July 22, 

2020, S262835; People v. York (2020) 54 Cal.App.5th 250, 258

(York), review granted Nov. 18, 2020, S264954 [pre-Banks/Clark 

special circumstance finding “cannot preclude eligibility for relief 

under . . . section 1170.95 as a matter of law, because the factual 

issues that the jury was asked to resolve” in such a case “are not 

the same factual issues our Supreme Court has since identified 

as controlling.”].) 

Additionally, York rejected the view that a petitioner must 

challenge a pre-Banks and Clark special circumstance finding in

a habeas corpus proceeding before he or she may successfully

challenge the underlying murder conviction in a section 1170.95

proceeding. The court explained: “The statute does not state 

that a true finding on a special circumstance allegation 

automatically precludes relief. To the contrary, its language 

implies that there is no such bar to eligibility. Section 1170.95, 

subdivision (d)(2), provides: ‘If there was a 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.’ We find it significant that the 

Legislature made no provision for the consequence of a prior 

finding by a court or a jury that a petitioner was a major 

participant and did act with reckless indifference to human life. 

If the Legislature had intended such a finding automatically to 
16

preclude eligibility for relief, it could have said so.” (York, supra,

54 Cal.App.5th at pp. 260–261, internal fn. omitted, rev.gr.) 

As noted, other courts hold that a pre-Banks and Clark 

special circumstance finding bars section 1170.95 relief as a 

matter of law. They reason that section 1170.95 was not meant 

to be an avenue for a collateral attack on the sufficiency of the 

evidence to support a special circumstance finding (see, e.g., 

Allison, supra, 55 Cal.App.5th at pp. 453, 461), and a defendant 

seeking to challenge the sufficiency of the evidence to prove a preBanks and Clark major participant or reckless indifference 

finding must do so via a petition for writ of habeas corpus. 

(Gomez, supra, 52 Cal.App.5th at pp. 16–17, rev.gr.; Galvan,

supra, 52 Cal.App.5th at p. 1137, rev.gr.; Jones, supra, 56 

Cal.App.5th at p. 483, rev.gr.; Nunez, supra, 57 Cal.App.5th at 

p. 96, rev.gr.)

In support of this view, some cases point out that Banks 

and Clark did not state a new rule of law, but merely clarified the 

already-existing meaning of “major participant” and “reckless 

indifference,” terms that do not have specialized definitions and 

are interpreted as used in common parlance. (Jones, supra,

56 Cal.App.5th at pp. 482, 484, rev.gr.; Nunez, supra, 57 

Cal.App.5th at p. 92, rev.gr.; Allison, supra, 55 Cal.App.5th at 

pp. 458–459.) While optional language was added to the pattern 

jury instructions after Banks and Clark, “no mandatory language 

or material changes were made to the CALCRIM special 

circumstances instructions,” and there is no requirement that 

juries be instructed on the Banks/Clark clarifications. (Nunez, at 

pp. 92–93; Jones, at p. 484; Allison, at pp. 458–459.) Moreover, a 

petitioner would have had the same incentive, both pre-and postBanks and Clark, to minimize his or her involvement in the 
17

crimes and culpability for the murder. (Allison, at p. 459.) Thus, 

the argument that a pre-Banks/Clark special circumstance 

finding must be presumed invalid exaggerates the impact of 

Banks and Clark. (See Allison, at p. 458; Jones, at p. 484.) There 

is “no basis to conclude as a general matter that a pre-Banks and 

Clark jury was instructed differently than a post-Banks and 

Clark jury, or resolved different factual issues, answered 

different questions, or applied different standards.” (Nunez, at 

p. 94). 

This line of authority also reasons that the 

Torres/Smith/York approach is inconsistent with the plain 

language of section 1170.95, because a defendant claiming 

ineligibility based on Banks and Clark does not meet the 

statutory requirement that he or she cannot be convicted because 

of changes to sections 188 or 189 made by Senate Bill 1437. 

(Jones, supra, 56 Cal.App.5th at p. 484, rev.gr.) “In order to be 

eligible for resentencing, a defendant must show that he or she 

‘could not be convicted of first or second degree murder because of 

changes to Section[s] 188 or 189 made effective’ as part of Senate 

Bill No. 1437. (§ 1170.95, subd. (a)(3).) [¶] . . . Although 

[petitioner] is asserting that he could not now be convicted of 

murder, the alleged inability to obtain such a conviction is not 

‘because of changes’ made by Senate Bill No. 1437, but because of 

the clarification of the requirements for the special circumstance 

finding in Banks and Clark. Nothing about those requirements

changed as a result of Senate Bill No. 1437. Just as was the case

before that law went into effect, the special circumstance applies

to defendants who were major participants in an underlying

felony and acted with reckless indifference to human life.” 

(Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr.; Murillo, supra,
18

54 Cal.App.5th at p. 168, rev.gr.; Allison, supra, 55 Cal.App.5th

at p. 460; Nunez, supra, 57 Cal.App.5th at pp. 94–95, rev.gr.)

Further, in concluding that the proper vehicle to challenge 

a pre-Banks and Clark special circumstance finding is a petition 

for writ of habeas corpus, courts point to the different burdens 

involved in a habeas petition and a section 1170.95 petition. A 

defendant challenging a pre-Banks/Clark special circumstance 

finding by means of a writ of habeas corpus must show that the 

record contains insufficient evidence to prove he or she acted as a 

major participant or with reckless indifference. (Jones, supra,

56 Cal.App.5th at p. 485, rev.gr.; Galvan, supra, 52 Cal.App.5th 

at pp. 1142–1143, rev.gr.; Gomez, supra, 52 Cal.App.5th at p. 17,

rev.gr.) “By contrast, a petitioner who demonstrates a prima

facie case for relief under section 1170.95 has shifted the burden

to the People to prove beyond a reasonable doubt that they are

ineligible for resentencing (that is, they still could be convicted of

murder despite the change to the felony-murder rule in § 189).

[Citation.] . . . [T]he Torres/Smith/York line of cases would read 

into section 1170.95 a new procedure allowing petitioners to 

ignore a special circumstance finding—no matter how well 

supported in the record—as well as the recognized method of 

challenging it. Such petitioners would be allowed to relitigate a 

prior jury finding at an evidentiary hearing where the 

prosecution bears the burden of proving the truth of the finding, 

beyond a reasonable doubt, a second time.” (Jones, at p. 485.)

Allowing petitioners to challenge a special circumstance finding 

via a section 1170.95 petition would give them an advantage over 

similarly situated defendants, based on the date of their 

convictions. (Galvan, at pp. 1142–1143; see Nunez, supra,

57 Cal.App.5th at pp. 96–97, rev.gr.)
19

Such a procedure is inconsistent with the Legislature’s 

intent. “The Legislature made plain that its purpose in enacting

section 1170.95 was to give defendants the benefit of the 

amendments to sections 188 and 189 in the absence of a factual 

basis for a murder conviction in light of the statutory revisions. 

But there is no indication in the statute’s text or history of any

legislative intent to permit defendants to challenge their murder

convictions by attacking prior findings of fact.” (Nunez, supra,

57 Cal.App.5th at p. 95, rev.gr.) “Nothing in the language 

of section 1170.95 suggests it was intended to provide redress for 

allegedly erroneous prior factfinding. In particular, subdivision 

(a)(3) of section 1170.95 says nothing about erroneous prior 

findings or the possibility of proving contrary facts if given a 

second chance. Rather, it requires that the petitioner could not 

be convicted of murder because of the changes to sections

188 and 189, not because a prior fact finder got the facts wrong. 

The purpose of section 1170.95 is to give defendants the benefit of 

amended sections 188 and 189 with respect to issues not 

previously determined, not to provide a do-over on factual 

disputes that have already been resolved.” (Allison, supra,

55 Cal.App.5th at p. 461.)

Allison found unpersuasive the York court’s reasoning 

about section 1170.95, subdivision (d)(2), the provision expressly 

requiring a court to grant relief if there has been a prior finding 

the petitioner did not act as a major participant, with reckless 

indifference. Allison reasoned: “The Legislature could not and 

did not need to spell out every ground for denying a petition. For 

example, the Legislature did not specify that a defendant with a 

special circumstance finding for the administration of poison

(§ 190.2, subd. (a)(19)) or for killing while the defendant was an 
20

active participant in a criminal street gang (§ 190.2, subd. (a)(22)) 

is ineligible for relief. But both of those special circumstances 

require that the defendant intentionally killed the victim . . . , 

and a court would be correct to summarily deny a petition in such 

a case because the defendant could not make a prima facie claim 

that he was entitled to relief. If these kinds of findings did not 

bar defendants from relief under section 1170.95, it would be 

unclear how any prior factual findings could preclude relief under

section 1170.95.” (Allison, supra, 55 Cal.App.5th at pp. 459–460.) 

Thus, Allison concluded, “the Legislature’s silence regarding 

defendants with pre-Banks and Clark special circumstances does 

not imply that such defendants are eligible for resentencing 

under section 1170.95.” (Id. at p. 460.) 

While we acknowledge that both of the foregoing lines of

authority are not without force, we respectfully disagree with our

colleagues in Division Five and conclude that the cases holding

that a special circumstance finding precludes relief as a matter of

law are more persuasive. Accordingly, we conclude that the trial 
21

court correctly denied McDermott’s section 1170.95 petition4

because he is ineligible for relief as a matter of law.5

4 McDermott argues that, if his petition alone was

insufficient to make a prima facie case, we should remand to the

trial court for consideration of the petition in conjunction with the

additional two-page document he submitted with his notice of

appeal. He argues that ReStore Justice, the organization that

furnished his petition and distributed a guide to the petition

process to inmates, represented that petitioners would be entitled

to counsel if they simply checked the appropriate box on the

petition; he relied on this representation; and “[t]his reliance

interest is an element of due process.” Setting aside the question

of whether a nongovernmental entity’s distribution of a document

could confer a due process right, the additional pages attached to

McDermott’s notice of appeal do not assist him. His petition was

correctly denied at the eligibility stage because the jury’s special

circumstance findings disqualify him as a matter of law. His

arguments as to why those findings were factually incorrect

would not change that conclusion.

5 In light of our conclusion, we do not reach the People’s 

arguments that any error was harmless, or that this court’s and a 

federal court’s denials of McDermott’s prior habeas petitions 

demonstrate the special circumstance findings “necessarily 

comported with the post-Banks/Clark guidelines.”
22

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

I concur:

EGERTON, J.
1

DHANIDINA, J., Concurring and Dissenting:

I agree with the majority’s statement of facts and the law 

regarding the procedural steps Penal Code1 section 1170.95 

requires and as are described in People v. Verdugo (2020) 44 

Cal.App.5th 320, 328, review granted March 18, 2020, S260493. 

The majority has also explained well the split among appellate 

courts about the interplay between section 1170.95 and a special 

circumstance finding that a defendant was a major participant in 

a murder who acted with reckless indifference to human life, 

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

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

But where the majority sides with the People v. Galvan 

(2020) 52 Cal.App.5th 1134, review granted Oct. 14, 2020, 

S264284, line of cases regarding the split, I side with People v. 

Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, 

S262011. In my view, a special circumstance finding that 

predates Banks and Clark does not render a defendant such as 

McDermott ineligible for relief as a matter of law. (See, e.g., 

People v. York (2020) 54 Cal.App.5th 250, review granted Nov. 18, 

2020, S264954; People v. Smith (2020) 49 Cal.App.5th 85, review 

granted July 22, 2020, S262835.) I therefore respectfully dissent 

as to that issue. 

As the majority has said, under Senate Bill No. 1437, 

malice may no longer be imputed to a person based solely on the 

person’s participation in the crime; now, the person must have 

acted with malice aforethought to be convicted of murder. (§ 188; 

People v. Munoz (2019) 39 Cal.App.5th 738, 749, review granted 

Nov. 26, 2019, S258234.) To that end, the natural and probable 

consequences doctrine no longer applies to murder. And a 

1 All further statutory references are to the Penal Code.
2

participant in enumerated crimes is liable under the felonymurder doctrine only if the participant was the actual killer; or 

with the intent to kill, aided and abetted the actual killer in 

commission of first degree murder; or was a major participant in 

the underlying felony and acted with reckless indifference to 

human life. (§ 189, subd. (e); see Munoz, at pp. 749–750.)

The petitioning process Senate Bill No. 1437 created via 

section 1170.95 thus requires a prima facie showing that the 

defendant was not a major participant in the murder or did not 

act with reckless indifference to life. Of course, a jury here found 

that McDermott was a major participant in the murder who acted 

with reckless indifference to life. However, that finding predates 

Banks and Clark. In my view, those decisions had the effect of 

narrowing the field of defendants who are major participants who 

act with reckless indifference to human life. (See, e.g., People v. 

Torres, supra, 46 Cal.App.5th at p. 1179; People v. Smith, supra, 

49 Cal.App.5th at p. 93.) It could be that a pre-Banks and Clark

jury made “precisely the same finding it must make in order to 

convict a defendant of felony murder under the new law.” (Maj. 

opn. ante, at p. 13.) But it also could be that evidence supporting 

the true finding the jury made before Banks and Clark would not 

have been sufficient after them. 

Section 1170.95 gives a defendant in McDermott’s situation 

the mere opportunity to make that showing, with the benefit of 

counsel. I therefore agree with my colleagues in Division 5 that a 

section 1170.95 petition is a challenge to a murder conviction 

which may require consideration of a pre-Banks and Clark

special circumstance finding. (See generally People v. York, 

supra, 54 Cal.App.5th at p. 260; People v. Smith, supra, 

49 Cal.App.5th 85; People v. Torres, supra, 46 Cal.App.5th 1168.) 
3

In this discrete situation involving a defendant convicted of a 

special circumstance pre-Banks and Clark, the defendant has 

made a sufficient showing to get past the preliminary prima facie 

level of review described in Verdugo and is entitled to 

appointment of counsel to assist in further briefing, i.e., to 

proceed to the second step of the prima facie review.

This conclusion does not open the door to wholesale 

challenges to any prior juror finding and to all manner of 

collateral attack. Rather, the California Supreme Court in Banks 

and Clark has, in one specific and limited instance, decisively 

clarified what it means to be a major participant in a murder who 

acts with reckless indifference to life. As that clarification could 

here reflect on McDermott’s murder conviction, I would therefore 

find that McDermott is not ineligible for relief as a matter of law 

and direct the trial court to appoint counsel to represent him and 

to proceed in accordance with section 1170.95, subdivision (c). 

(See, e.g., People v. Smith, supra, 49 Cal.App.5th at pp. 95–96; 

but see People v. Law (2020) 48 Cal.App.5th 811, review granted 

July 8, 2020, S262490 [error susceptible to harmless error 

analysis].)

Further, I do not agree with the People’s additional reasons 

why McDermott cannot progress past the preliminary prima facie 

review. The People argue that McDermott has challenged his 

special circumstance finding post-Banks and Clark via state and 

federal petitions for writ of habeas corpus he filed. In 2019, we 

summarily denied McDermott’s state petition for writ of habeas 

corpus that had raised Banks and Clark. The ruling on the 

habeas petition, however, was not on the merits of whether the 

jury’s special circumstance finding meets the more stringent 

Banks and Clark rubric and was not res judicata in future 
4

proceedings. (See, e.g., People v. Torres, supra, 46 Cal.App.5th at 

p. 1180, fn. 4; Gomez v. Superior Court (2012) 54 Cal.4th 293, 

305, fn. 6.) In a federal petition for writ of habeas corpus, 

McDermott argued that he was actually innocent of the special 

circumstance allegation based on new evidence. In denying the 

petition, the federal court addressed only the reckless 

indifference prong of the special circumstance allegation. The 

federal court did not address whether McDermott was a major 

participant as now defined by Banks. Thus, no court has 

affirmed the special circumstance finding, as now understood per 

Banks and Clark.

DHANIDINA, J.