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Filed 9/27/ 21 P. v. Martin CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
RAYMOND DAVID MARTIN,

Defendant and Appellant. C091375 (Super. Ct. No. 05F11358)

Defendant Raymond David Martin appeals from the trial court’s order denying his petition for resentencing brought pursuant to Penal Code section 1170.95. 1 Defendant argues the trial court erred when it determined that his conviction for first degree murder with robbery and burglary special circumstances precluded his eligibility for relief. We
affirm

.

1 Undesignated statutory references are to the Penal Code.2 FACTUAL AND PROCEDURAL BACKGROUND In 2008, a jury foun d defendant guilty of first degree murder (§ 187), assault with a firearm (§ 245, subd. (b)), first degree burglary (§ 459), and robbery (§ 211), and found true special circumstance allegations of robbery murder (§ 190.2, subd. (a)(17)) and burglary murder (§ 190.2, subd. (a)(17)), and that a principal was armed with a firearm during the commission of the crimes. (§ 12022, subd. (a)). The convictions resulted from an attempted home invasion robbery of a drug dealer by defendant and his two codefendants , Vincent Gregory and Stanley Mason

. During the robbery, Gregory shot and killed a man and shot the man’s girlfriend in the leg

. This court affirmed defendant’s conviction on appeal. In 2019, defendant filed a section 1170.95 petition for res entencing, seeking to vacate his murder conviction on the ground that he could no longer be convicted of first degree murder because of changes made to sections 188 and 189, effective January 1, 2019. The trial court appointed counsel and ordered a briefi ng schedule for the People’s response to the petition and defendant’s reply

. After the parties submitted their briefs, the court denied the petition, finding defendant failed to show he fell within the provisions of section 1170.95 and therefore
failed to make a prima facie showing of eligibility for relief. Specifically, the court found
relevant that a jury unanimously found defendant guilty of first degree murder and also
found true the burglary

- murder and a robbery

- murder special circumstances . The jur y’s findings, including special circumstances, were then upheld on appeal

. Thus, the court concluded defendant was ineligible for relief under section 1170.95 because “ Penal Code §§ 187 [ sic ] and 189 still provide for first degree murder based on burglary

- murder and robbery

- murder, when the trier of fact has found beyond a reasonable doubt that the defendant either was the actual killer, intended to kill, or was a major participant who acted in the burglary and robbery with reckless indifference to human l ife, as a3

unanimous jury in [defendant’s case] necessarily found ,” and the jury’s special circumstances findings have not been vacated.
DISCUSSION
I
Senate Bill No. 1437
Senate Bill No. 1437 (2017

- 2018 Reg. Sess.), which became effective on January 1, 2019, was enacted “to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The legislation accomplished this by
amendin g sections 188 and 189 and add ing section 1170.95 to the Penal Code. Section 188, which defines malice, now provides in part: “Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with ma lice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Section 189, subdivision (e) now limits the circumstances under which a person may be convicted of felony murder:
“A participant in the perpetration or attempted perpetration of a felony listed in

s ubdivision (a) [defining first degree murder] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a ma jor participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.”
Senate Bill No. 1437 also added section 1170.95, which allows those “convicted of felony murder or murder under a natural and probable consequences theory [to] file a4

petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (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) The petitioner was convicted of f irst degree or second degree murder following a trial

. . . . [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
As relevant here, o nce a complete petition is filed, “ [t] he court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the

co urt shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served.

. . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.” (§ 1170.95, subd. ( c ).)
II Special Circumstances Defendant argues the trial court erred when it determined the special circums tance finding conclusively established his ineligibility for resentencing because the jury necessarily concluded that he was either the actual killer, a major participant, or acted
with reckless indifference. He contends that the special circumstances fin dings in this case do not necessarily bar his section 1170.95 relief because, after the jury made its findings in this case , our Supreme Court issued two opinions that clarified and narrowed
the definitions of “major participant” and “reckless indifference to human life .” ( People
v. Banks (2015) 61 Cal.4th 788 ( Banks ) ; People v. Clark (2016) 63 Cal.4th 522 ( Clark ) .) Relying on People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020,5

S262011 ( Torres ), defendant asserts Banks and Clark require further litigation of his case to determine his eligibility for relief , and specifically, that the matter should be re manded for the trial court to issue an order to show cause for an evidentiary hearing under section
1170. 9 5

. The Attorney General responds that Torres was wrongly decided, and although
Banks and Clark enabled defendants to file new habeas corpus petitions attacking their special circumstance convictions, “section 1170.95 does not provide defendants with a generalized collateral attack on their convictions.” Rather, the Attorney General argues , a defendant must first seek habeas relief on a special circumst ance conviction and, if successful, can then proceed through the section 1170.95 process. While briefing in this case was ongoing, the Fourth Appellate District, Division
One in People v. Gomez (2020) 52 Cal.App.5th 1, review granted October 14, 2020, S264033, and the Second Appellate District, Division One in People v. Galvan (2020)
52 Cal.App.5th 1134, review granted October 14, 2020, S264284 ( Galvan ), issued opinions supportive of the Attorney General’s position. (See People v. Murillo (2020)
54 Cal .App.5th 160 , review granted Nov. 18, 2020, S26 4 978 .) More recently, Division
Five of the Second Appellate District, in People v. York (2020) 54 Cal.App.5th 250 , review granted Nov ember 18, 2020, S264954 ( York ), followed Torres and criticized
Galvan

. (Se e People v. Smith (2020) 49 Cal.App.5th 85, review granted July 2 2 , 2020 , S262835.) The Second Appellate District, Division One then issued People v. Allison (2020) 55 Cal.App.5th 449 ( Allison ) in direct response to York . ( Allison , at p. 449 .) Most recently, the Fourth Appellate District, Division Two followed Allison in People v.
Jones (2020) 56 Cal.App.5th 474, review granted January 27, 2021, S265854, as did the Second Appellate District, Division Two in People v. Nunez (2020) 57 Cal.App. 5th 78 ,6

review granted January 13, 2021, S265918

. 2 As we will explain, we find Galvan and
Allison more persuasive on this issue than the cases to the contrary.
In 1990 , our electorate enacted section 19 0

. 2 , which defines felony

- murder special
circumstances under subdivision (d) consistent ly with the holding in Tison v. Arizona (1987) 481 U.S. 137 [ 95 L.Ed. 2d 127 ]

. ( In re Scoggins (2020) 9 Cal.5th 667, 674

- 675

. ) Later, our Supreme Court’s decisions in Bank s and Clark clarified “what it means for an aiding and abetting defendant to be a ‘major participant’ in an underlying felony and to act with ‘reckless indifference to human life,’ [and] construed section 190.2, subdivision (d) in a significantly different , and narrower manner than courts had previously construed the statute.” ( Torres , supra , 46 Cal.App.5th at p. 1179 , review granted ; see Galvan , supra , 52 Cal.App.5th at p. 1141 , rev iew granted .) In Galvan , the appellate court acknowledged these changes t o section 190.2, subdivision (d) and considered whether a defendant could relitigate his special circumstance conviction using section 1170.95. ( Galvan , at p. 1141.) There, as here, the defendant was convicted of first degree murder with a special circumstance finding under section 190.2, subdivision (a)(17) made before
Banks and Clark were decided. ( Galvan , at p p

. 1138

- 1139.) On appeal, the defendant,
like defenda nt here, argued that Banks and Clark had altered the meaning of “major participant” and “reckless indifference to human life” such that he was entitled to reconsideration of the conviction under section 1170.95. ( G al van, at p. 1137.)
The Galvan court firs t considered the relevant statutory language: “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 S

enate Bill No. 1437 .” ( Galvan , supra , 52 Cal.App.5th at p. 1142,

2 Although certain of those cases also concern the appropriate stage in the section 1170.95 proceedings for appointment of counsel, this case does not , as the trial court appointed counsel for defendant and received briefing prior to denying the petition

.7

rev iew granted, italics added; § 1170.95, subd. (a)(3) , italics added.) The court concluded that as to Galvan the requirement was not met, because “[a]lthough [the defendant] is asserting t hat 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. If [the defendant] is entitled to relief based on Banks
and Clark , the avenue for such relief is not section 1170.95, but a petition for writ of habeas corpus.” ( Galvan , at p. 1142.)
The Galvan court also observed that permitting defendants to relitigate a special circumstance finding by way of a section 1170.95 petition would “give [them] an enormous advantage over other similarly situated defendants based solely on the date of [their] convicti on.” ( Galvan , supra , 52 Cal.App.5th at p. 1142 , rev iew granted .) “Defendants convicted after the Supreme Court issued its decisions in Banks and Clark would be required to challenge the sufficiency of the evidence of the special circumstance finding on d irect appeal, where the People would need only to show that substantial evidence supported that finding.” ( Id. at p p

. 1142

- 1143.) Defendants
convicted before Banks and Clark , on the other hand, could challenge the special circumstance findings under sect ion 1170.95, which would require the prosecution “to prove the special circumstance beyond a reasonable doubt.” ( Galvan , at p. 1143.) “[N]othing in the language of Senate Bill No. 1437 suggests that the Legislature intended unequal treatment of such simi larly situated defendants.” ( Ibid .)8

Defendant urges us to follow Torres , supra , 46 Cal.App.5th 1168 , review granted , which also addressed the denial of a section 1170.95 petition based on the changes made by Banks and Clark . The Torres court concluded th e summary denial of the defendant’s petition based on the pre

- Banks / Clark special circumstance finding raised the “possibility that [the defendant] was punished for conduct that is not prohibited by section 190.2 as currently understood, in violation of [t he defendant’s] constitutional right to due process” and, as relevant here, reversed and remanded. ( Torres , at p. 1180.) Torres had already sought habeas relief, claiming the special circumstance finding was no longer valid; his petition for relief had be en denied. ( Torres , supra , 46 Cal.App.5th at p. 1180, fn. 4 , rev iew granted .) The appellate court considered
whether that habeas corpus petition precluded the section 1170.95 petition but did not opine on whether habeas relief was more appropriate in light of section 1170.95’s statutory language.
In York , supra , 54 Cal.App.5th 250 , review granted , the appellate court did
consider whether a habeas corpus petition was a preferable route to r elief. ( Id. at pp. 258

- 259.) The York court reviewed the language of section 1170.95, subdivision (d)(2), which provides a streamlined path to relief under section 1170.95 if a defendant has “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.” Because the statute does not include a counterpart to this subdivision accounting for a situation where there is a prior finding that a petitioner did act with re ckless indifference to human life and was a major participant in the underlying felony, the court reasoned such a finding should not preclude a petitioner from relief. ( York , at pp. 260

- 261.) The court concluded Galvan
was incorrect when it concluded the defendant there could only avail himself of relief “because of” Banks and Clark , rather than Senate Bill No. 1437. Absent Senate Bill
No. 1437, a successful Banks and Clark challenge would invalidate only the special9

circumstance finding, whereas a succe ssful section 1170.95 petition would invalidate a murder conviction. ( York , at p. 261.)
The Allison court addressed York after ordering briefing on the precise issue here: “Whether the trial court properly relied on [the defendant’s] admission of felony

- murder special circumstances (§ 190.2, subd. (a)(17)) as the sole basis for finding that he had not made a prima facie show ing that he was entitled to relief.” ( Allison, supra , 55 Cal.App.5th at p. 456 .) The Allison court first emphasized that section 1170.95 requires a prima facie showing by petitioner that he “ ‘ could not be convicted of

. . . murder because of changes to Section 188 or 189 made’ in Senate Bill No. 1437.” ( Allison, at p. 45 7 .) It noted that the r equirements for a finding of felony murder under the newly amended version of section 189 were identical to the requirements of the felony

- murder special circumstance that had been in effect at the time of the challenged murder conviction (in the Allison c ase, 1997; in the instant case, 2008 ). ( Allison , at
p. 45 7 .) Thus, the special circumstance finding showed “as a matter of law that Allison
could still be convicted of felony murder even under the newly amended version of section 189” and precluded a pri ma facie showing of eligibility. ( I bid

. )
The Allison court disagreed with the argument to the contrary embraced by York , that because no court had examined whether there was a factual basis for the special circumstance finding since Banks and Clark were d ecided, the finding was insufficient to show ineligibility as a matter of law. ( Allison, supra , 55 Cal.App.5th at p p

. 45 7

- 458 .)
We agree with the Allison court that Banks and Clark did not change the law, but merely clarified the same principles that existed earlier. (See Allison, at p. 45 8 ; see also In re
Miller (2017) 14 Cal.App.5th 960, 978.) As the Allison court noted, the pattern jury instructions remain the same; Banks and C lark merely resulted in the addition of optional language thereto. (

Allison, at p. 45 8 .) We further observe that the language in section 1170.95, subdivision (d)(2) anticipates, rather than precludes, the possibility of habeas relief before a section 1170 .9510

petition because one way to obtain a “prior finding” that meets the subdivision’s requirements is via habeas corpus . ( In re Ramirez (2019) 32 Cal.App.5th 384, 406.) If a defendant has successfully obtained such relief, the trial court must provide th e petitioner access to section 1170.95 relief. Nothing precludes relief under section 1170.95

— the language simply presumes a petitioner will pursue alternative relief first. Finally, we disagree that reliance on a special circumstance finding to determine that a defendant cannot make a prima facie case for resentencing as a matter of law requires the trial court to make “a separate determination concerning the validity of the special circumstance .” ( York, supra , 54 Cal.App.5th at p. 262 , rev iew g ranted .) Such reliance on the jury finding requires only a simple review of the record to determine whether the factfinder found the special circumstance to be true and what that finding entailed. Such a review of prior proceedings is fully contemplated by section 1170.95, subdivision (c) and has been recently upheld by our Supreme Court in People v. Lewis (2021) 11 Cal.5th 952, 970

- 972, which explained: “ The record of conviction will necessarily inform the trial court ’ s prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute's overall purpose: to ensure that murder culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single

- step prima facie review process. (See Stats. 2018, ch. 1015, § 1, subd. (f).) .” ( Id. at p. 971.)
We find the Allison court’s responses to York persuasive, and the analyses of
Allison and Galvan, considered together, convince us that the appropriate avenue for defendant’s challenge to the special circumstance allegations is through a petition for writ of habeas corpus, rather than the section 1170.95 petition filed i n this case. (See In re
Miller , supra , 14 Cal.App.5th at p p

. 979

- 980 [ permitting habeas corpus challenge to special circumstance conviction].) The trial court did not err when it denied defendant’s petition.11 DISPOSITION The trial court’s order is affirmed.

/s/ BLEASE, Acting P. J.

We concur:

/s/ HULL, J.

/s/ RENNER, J.