Filed 2/4/22 P. v. Garcia CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO GARCIA,

Defendant and Appellant.

B308824

(Los Angeles County

Super. Ct. No. BA110432)

APPEAL from an order of the Superior Court of Los 

Angeles County. Robert C. Vanderet, Judge. Affirmed.

Tracy J. Dressner, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Steven D. Matthews, Supervising 

Deputy Attorney General, Idan Ivri and Roberta L. Davis, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________
2

This appeal from the denial of a petition for resentencing 

under Penal Code1 section 1170.95 presents two issues we 

addressed in People v. Nunez (2020) 57 Cal.App.5th 78, review 

granted, January 13, 2021, S265918 (Nunez): (1) Does a jury’s 

felony-murder special-circumstance finding, made before the 

California Supreme Court’s decisions in People v. Banks (2015) 61 

Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 

(Clark), make a defendant ineligible for relief under section 

1170.95 as a matter of law? and (2) May a defendant avoid the 

preclusive effect of the prior felony-murder special-circumstance 

finding by challenging its validity under Banks and Clark in the 

context of the 1170.95 petition?

Appellate courts are split on the question of whether a preBanks and Clark felony-murder special-circumstance finding 

makes a petitioner ineligible for section 1170.95 relief as a matter 

of law. The issue is pending before our Supreme Court in People 

v. Strong, review granted March 10, 2021, S266606 [“Does a 

felony-murder special-circumstance finding (Pen. Code, § 190.2, 

subd. (a)(17)) made before People v. Banks (2015) 61 Cal.4th 788

and People v. Clark (2016) 63 Cal.4th 522 preclude a defendant 

from making a prima facie showing of eligibility for relief under 

Penal Code section 1170.95?”] 

(<https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScr

een.cfm?dist=0&doc_id=2339000&doc_no=S266606&request_toke

n=NiIwLSEmTkw6WyBRSCM9TEhIMFQ0UDxTJSM%2BXzpSU

CAgCg%3D%3D> [as of May 26, 2021], archived at 

1 Undesignated statutory references are to the Penal Code.
3

<https://perma.cc/P8YS-L3CV>.)2 Until our Supreme Court 

resolves this disagreement, we stand by our decision in Nunez,

and hold that a superior court may deny a section 1170.95 

petition at the prima facie review stage on the ground that a 

defendant convicted of murder with a felony-murder specialcircumstance finding (§ 190.2, subd. (a)(17)) is not, as a matter of 

law, eligible for resentencing under section 1170.95. (Nunez, 

supra, 57 Cal.App.5th at pp. 83, 90–92, rev.gr.)

2 The list of cases on both sides of this split continues to 

grow. Those cases in which courts have determined a specialcircumstance finding does not necessarily preclude relief under 

section 1170.95 include: People v. Gonzalez (2021) 65 

Cal.App.5th 420, 431, review granted Aug. 18, 2021, S269792; 

People v. Harris (2021) 60 Cal.App.5th 939, 956, review granted 

Apr. 28, 2021, S267802; People v. York (2020) 54 Cal.App.5th 250, 

260–261, review granted Nov. 18, 2020, S264954 (York); People v. 

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

2020, S262835 (Smith); People v. Torres (2020) 46 Cal.App.5th 

1168, 1179, review granted June 24, 2020, S262011 (Torres). 

Other courts hold that a jury’s special-circumstance finding 

renders a petitioner ineligible as a matter of law for relief under 

section 1170.95. (See, e.g., People v. Simmons (2021) 65 

Cal.App.5th 739, 747, 749, review granted Sept. 1, 2021, S270048

(Simmons); Nunez, supra, 57 Cal.App.5th at p. 90, rev.gr.; People 

v. Jones (2020) 56 Cal.App.5th 474, 478–479, review granted 

Jan. 27, 2021, S265854 (Jones); People v. Allison (2020) 55 

Cal.App.5th 449, 460–462 (Allison); People v. Gomez (2020) 52 

Cal.App.5th 1, 14–15, 17, review granted Oct. 14, 2020, S264033 

(Gomez); People v. Galvan (2020) 52 Cal.App.5th 1134, 1141, 

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

Murillo (2020) 54 Cal.App.5th 160, 168, review granted Nov. 18, 

2020, S264978 (Murillo).)
4

As in Nunez, we also conclude that a section 1170.95 

petition is not the proper vehicle for challenging a murder 

conviction by attacking, under our Supreme Court’s decisions in 

Banks and Clark, the jury’s prior factual finding that the 

defendant was a major participant who acted with reckless 

indifference to human life. (See Nunez, supra, 57 Cal.App.5th at 

pp. 83, 95–97, rev.gr.; Allison, supra, 55 Cal.App.5th at pp. 458, 

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

supra, 52 Cal.App.5th at p. 1142, rev.gr.; Murillo, supra, 54 

Cal.App.5th at p. 168, rev.gr.; accord, Simmons, supra, 65 

Cal.App.5th at p. 749, rev.gr.; Jones, supra, 56 Cal.App.5th at 

p. 482, rev.gr.)

We also reject appellant’s claim that the superior court 

violated his equal protection rights by denying appellant’s 

request for a Franklin3 hearing to develop evidence for use in his 

resentencing petition and for later use at a youth offender parole 

hearing. Appellant was 19 years old when he committed his 

offenses in 1995. While appellant’s resentencing petition under 

section 1170.95 was pending, appellant filed a petition seeking a 

Franklin hearing pursuant to sections 3051 and 1170, 

subdivision (d)(2). The superior court correctly denied the 

petition on the ground that appellant will be ineligible for a youth 

offender parole hearing because he was not under the age of 18 

when he committed the offense for which he was sentenced to life

in prison without the possibility of parole (LWOP). (See §§ 3051, 

subd. (b)(4), 1170, subd. (d)(1) & (2).)

3 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
5

FACTUAL BACKGROUND4

On February 8, 1995, Pedro Arcos was living with his 

girlfriend and her family in an apartment at the Maravilla 

housing project in East Los Angeles. Arcos had just started a 

construction job, and his truck with his tools was parked in the 

parking lot on the side of the building. Arcos’s brother-in-law, 

Osvaldo Venegas, came home late that night and saw appellant, 

Julio Duenas, and Jaime Davalos drinking beer in the parking lot 

near Arcos’s truck. All three men wore hooded black jackets.

Everyone in the residence was asleep when Venegas came 

home. After he had gone inside, Venegas heard a noise and 

looked outside to see Duenas and Davalos dragging a milk crate 

to the backyard of a neighboring house as appellant looked on. 

The crate contained Arcos’s tools from his truck. Venegas alerted 

his sister and Arcos, who both went outside. Arcos spoke to the 

three men and then returned to the house, angry because his 

truck had been broken into and his tools taken. Venegas pointed 

out where the tools were, and members of the family retrieved

the tools and brought them inside.

Venegas then saw Davalos or Duenas walk between 20 and 

40 feet toward a large commercial Dumpster in the parking lot

and bend down as if to retrieve something. The man looked up to 

see if anyone was watching and then bent down again, looking 

three or four times. Appellant did not go near the Dumpster.

4 The factual background is drawn from the trial

transcripts, of which we have taken judicial notice, as well as the 

statement of facts in the prior opinion in the direct appeal in this 

case. (People v. Davalos and Garcia (Aug. 6, 1998, B109077) 

[nonpub. opn.] (Garcia I).)
6

Shortly thereafter, there was a loud knock at the front 

door. The mother went to the door and heard a voice outside 

cursing and demanding that the “ ‘ass hole’ ” come out. The 

mother responded, “ ‘Leave us alone. He does not live here.’ ” At 

that, the door was kicked open, hitting the mother and knocking

her to the floor. The mother saw that the first person to enter 

had a gun in his hand, but she could not identify him.

According to Venegas, Duenas entered the house first, but 

Venegas did not see Duenas with a gun. Duenas and Arcos began 

to fight, and Duenas dragged the struggling Arcos into the 

mother’s bedroom. While Duenas and Arcos were fighting in the 

bedroom, Davalos came through the front door and hit Venegas 

in the face with a closed fist. Davalos continued on into the 

house. Venegas grabbed his mother and they ran out to the 

backyard with the rest of the family.

Venegas was about to jump over the patio fence to get help 

when appellant, who was standing outside, pointed a gun at 

Venegas and said, “ ‘You are not going nowhere. Get your ass 

down.’ ” Venegas went to the ground. The rest of his family was 

huddled together on the ground, crying.

While appellant was holding the family at gunpoint 

outside, Venegas could hear Arcos struggling and the sounds of 

slugging and banging on furniture in the bedroom. He heard two 

or three voices; one of them said in Spanish, “ ‘Give me your 

money. All I want [sic] was the tools to get some money.’ ” Arcos 

responded, “ ‘I don’t have any money. Take whatever you want. 

Leave us all alone.’ ” While this was going on, appellant stood by 

silently pointing his gun.

At some point, appellant left the backyard area and walked

toward the front of the house. As soon as appellant left, Venegas 
7

jumped over the fence, broke into his neighbor’s house, and called 

911. About three to four minutes after appellant had left the 

backyard, and while Venegas was calling 911, Venegas heard two 

gunshots. Then his sister yelled, “ ‘They shot him. They shot 

him.’ ” The assailants left the house through the front door.

Arcos was found dead in the bedroom lying in a pool of 

blood with his head in a bucket. He had sustained three gunshot 

wounds, one to the head behind the right ear, one to his neck on a 

trajectory to the brain, and another to his right shoulder.

PROCEDURAL BACKGROUND

Appellant and codefendant Davalos were tried and 

convicted in 1996 of the first degree murder of Arcos. (§§ 187, 

subd. (a).) The jury made special-circumstance findings that the 

murder was committed while appellant was engaged in the 

commission of a burglary and an attempted robbery. (§ 190.2, 

subd. (a)(17).) Both defendants were also convicted of first degree 

residential burglary (§ 459), attempted first degree robbery 

(§§ 211, 664), and second degree burglary of a vehicle (§ 459),

with the finding as to all counts that a principal was armed with 

a firearm (§ 12022, subd. (a)(1)). Appellant was sentenced to a

state prison term of life without the possibility of parole for the 

murder conviction plus one year for the firearm enhancement, 

and a concurrent two-year term for the second degree burglary. 

This court affirmed appellant’s judgment of conviction on direct 

appeal, rejecting, inter alia, appellant’s contention that the 

evidence was insufficient to sustain the special-circumstance 
8

finding that appellant was a major participant who acted with 

reckless indifference to human life.

5 (Garcia I, supra, B109077.)

In 2017, appellant filed a petition for writ of habeas corpus 

in the superior court, claiming among other things, that the 

evidence was insufficient to support the special-circumstance 

findings because he was not a major participant who acted with 

reckless indifference to human life within the meaning of Banks

and Clark. In a written decision the superior court rejected the 

Banks and Clark claim and summarily denied the petition: 

“[A]pplying Banks and Clark, the court finds the evidence 

supports that Petitioner was a major participant who acted with 

reckless indifference to human life.” In 2018 appellant filed a 

petition for writ of habeas corpus in this court, in which he 

claimed he was not a major participant in the crime with 

sufficient notice of the real possibility of death to support a 

robbery-murder special-circumstances finding within the 

meaning of Banks and Clark. We summarily denied the petition. 

(In re Francisco Garcia on habeas corpus, B292267.)

On May 28, 2019, appellant filed a petition for resentencing 

under section 1170.95. The superior court appointed counsel for 

appellant, and following briefing by the parties, issued a 

tentative decision denying the petition on the ground that 

appellant was ineligible for relief because the specialcircumstance finding established the jury had found appellant 

5 The court applied the standard articulated by the United 

States Supreme Court in Tison v. Arizona (1987) 481 U.S. 137, 

158 (Tison) that had been incorporated in section 190.2, 

subdivision (d) for determining whether a defendant who was not 

the killer was a major participant in the murder who exhibited a 

reckless disregard for human life.
9

was a major participant who acted with reckless indifference to

human life. Thereafter, the parties submitted supplemental 

briefing in accordance with the superior court’s request. On 

October 19, 2020, the superior court issued a written decision in 

which it denied the petition on the ground that the felony-murder 

special-circumstance finding rendered appellant ineligible for 

section 1170.95 relief as a matter of law. The court further noted 

that even under Banks and Clark, the evidence establishes that 

appellant was a major participant who acted with reckless 

indifference to human life.

While the resentencing petition was pending, appellant 

petitioned the superior court for a Franklin6 hearing pursuant to 

sections 3051 and 1170, subdivision (d)(2). On October 30, 2020, 

the court denied the petition on the ground that appellant was 

not under the age of 18 when he committed the offenses which 

resulted in his LWOP sentence.

DISCUSSION

I. The Superior Court May Deny a Section 1170.95 

Petition in the Prima Facie Stage of Review on the 

Ground that a Petitioner Convicted of Murder with a 

Felony-murder Special-circumstance Finding Is Not, 

as a Matter of Law, Eligible for Resentencing Under 

Section 1170.95

In order to obtain relief from his felony-murder conviction 

under section 1170.95, a petitioner must make a prima facie 

showing that he or she “could not presently be convicted of 

murder or attempted murder because of changes to Section 188 or 

6 Franklin, supra, 63 Cal.4th 261.
10

189” made by Senate Bill No. 1437.7 (§ 1170.95, subd. (a)(3), 

italics added; People v. Lewis (2021) 11 Cal.5th 952, 957, 959, 971 

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

supra, 57 Cal.App.5th at p. 90, rev.gr.) As the superior court 

determined here, appellant cannot, as a matter of law, make the 

requisite prima facie showing based on the jury’s felony-murder 

special-circumstance findings in his case.

A. Applicable legal principals

When a petition for resentencing under section 1170.95 

meets the basic requirements for relief, the superior court must 

then determine whether the petitioner has made a prima facie 

showing that he or she is entitled to relief, and if so, the court 

must issue an order to show cause. (§ 1170.95, subds. (a)–(c); 

Lewis, supra, 11 Cal.5th at p. 960.) In making this

determination, the superior court may consider the petitioner’s 

record of conviction. (Lewis, at pp. 970–971.) “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.” (Lewis, at p. 971.) At the prima facie review stage, 

the superior court properly denies a petition where the record of 

conviction demonstrates the petitioner is ineligible for relief as a 

matter of law. (Ibid.; see also People v. Mancilla (2021) 67 

Cal.App.5th 854, 859, 863–864.) However, in reviewing any part 

of the record to make its preliminary assessment regarding 

7 As amended by Senate Bill No. 775 (Stats. 2021, ch. 551, 

§ 2), section 1170.95 now also applies to persons previously 

convicted of attempted murder or manslaughter under a felony 

murder or natural and probable consequences theory. (§ 1170.95, 

subd. (a).)
11

whether the petitioner would be entitled to relief if his or her 

factual allegations were proved, the superior court must take 

petitioner’s factual allegations as true and may not engage in 

factfinding. (Lewis, at pp. 971–972; People v. DeHuff (2021) 63 

Cal.App.5th 428, 439–440.)

B. Given the jury’s special-circumstance findings, the 

superior court correctly determined that appellant could 

still be convicted under the amended statute.

With Senate Bill No. 1437’s addition of subdivision (e) to 

section 189, the crime of felony murder is now subject to the same 

requirements as a special-circumstance finding under section 

190.2, subdivision (d).8 (People v. Superior Court (Ferraro) (2020) 

51 Cal.App.5th 896, 907 [“ ‘the standard under section 189, 

subdivision (e)(3) for holding a defendant liable for felony murder 

is [now] the same as the standard for finding a special

circumstance under section 190.2[, subdivision ](d), as the former 

provision expressly incorporates the latter’ ”]; In re Taylor (2019) 

34 Cal.App.5th 543, 561.) That is, to be convicted of first degree 

8 Except for the deletion of the word “felony” in the 1998 

amendment to the statute, section 190.2, subdivision (d) remains 

unchanged from the version in effect in 1996 when appellant was 

convicted, which provided: “[E]very person, not the actual killer, 

who, with reckless indifference to human life and as a major 

participant, aids, abets, counsels, commands, induces, solicits, 

requests, or assists in the commission of a felony enumerated in 

paragraph (17) of subdivision (a) which [felony] results in the 

death of some person or persons, and who is found guilty of 

murder in the first degree therefor, shall be punished by death or 

imprisonment in the state prison for life without the possibility of 

parole if a special circumstance enumerated in paragraph (17) of 

subdivision (a) has been found to be true under Section 190.4.”
12

murder under section 189 as amended, the defendant must have 

been the actual killer, a direct aider and abettor who acted with 

the intent to kill, or “a major participant in the underlying felony 

[who] acted with reckless indifference to human life, as described 

in subdivision (d) of Section 190.2.” (§ 189, subd. (e); People v. 

Farfan (2021) 71 Cal.App.5th 942, 954 (Farfan).)

Here, appellant’s jury was instructed pursuant to 

CALJIC No. 8.80.1 that if it found appellant was not the actual 

killer, it could not find the burglary- or attempted robberymurder special-circumstance true unless it was satisfied beyond a 

reasonable doubt that appellant intended to kill or he was a 

major participant in the burglary or attempted robbery, and, 

when he participated in the crime, he acted with reckless 

indifference to human life. The jury was further instructed that 

“[a] defendant acts with reckless indifference to human life when 

that defendant knows or is aware that [his] . . . acts involve a 

grave risk of death to an innocent human being.” The jury found 

the special circumstance true as to both underlying felonies

beyond a reasonable doubt, and thereby necessarily made the 

factual findings that appellant participated in the burglary and 

attempted robbery with the intent to kill Arcos, or he was a major 

participant in the underlying felonies who acted with reckless 

indifference to Arcos’s life. Either of these findings would allow 

appellant to be convicted of first degree murder notwithstanding 

Senate Bill No. 1437’s changes to section 189. (Farfan, supra, 71 

Cal.App.5th at p. 954; Allison, supra, 55 Cal.App.5th at p. 457.)

Because the jury’s special-circumstance finding in this case 

means it found beyond a reasonable doubt that appellant either 

had the intent to kill or he acted with reckless indifference to 

human life as a major participant in the burglary and attempted 
13

robbery, these findings establish appellant is ineligible for section 

1170.95 relief as a matter of law. (See Farfan, supra, 71 

Cal.App.5th at p. 954; Allison, supra, 55 Cal.App.5th at pp. 460–

462 [“If the prior finding shows the petitioner meets the 

requirements for murder liability under amended sections 188 

and 189, then it is not true that the petitioner could not be 

convicted of murder because of the changes to sections 188 and 

189, and the petition must be denied”]; Simmons, supra, 65 

Cal.App.5th at pp. 747, 749, rev.gr.)

C. The jury’s felony-murder special-circumstance 

findings preclude section 1170.95 relief even though 

appellant’s conviction predated the Supreme Court’s 

Banks and Clark decisions.

Appellant seeks to avoid the preclusive effect of the specialcircumstance findings to his section 1170.95 claim by challenging 

the evidentiary support for those findings under our Supreme 

Court’s decisions in Banks and Clark. Asserting that this court’s 

prior rejection of the substantial evidence challenge to the 

special-circumstance findings on direct appeal and the summary 

denial of the habeas petition were “[b]ased on 

[m]isrepresentations of [c]ritical [f]acts,” appellant argues the 

evidence is insufficient to support the jury’s findings that he was 

a major participant who acted with reckless indifference under

the criteria established by Banks and Clark. Thus, according to 

appellant, the jury’s pre-Banks and Clark special-circumstance 

findings do not preclude relief under section 1170.95. We 

disagree.

To assist appellate review of a jury’s special-circumstance 

findings, our Supreme Court set forth a nonexclusive set of 

factors to aid in the determination of whether substantial 
14

evidence supports the jury’s conclusion that an individual was a 

“major participant” who acted with reckless disregard for human 

life.9 (Banks, supra, 61 Cal.4th at p. 803; Clark, supra, 63 

Cal.4th at pp. 618–622.) Following its examination of the two 

United States Supreme Court decisions in Enmund v. Florida

(1982) 458 U.S. 782 and Tison, supra, 481 U.S. 137, Banks

explained that a “major participant” in a crime that results in a 

murder is one whose “personal involvement” is “substantial.” 

(Banks, at p. 802.) While such a participant “need not be the 

ringleader” (People v. Williams (2015) 61 Cal.4th 1244, 1281), his 

or her involvement must be “greater than the actions of an 

ordinary aider and abettor” (Banks, at p. 802). Our Supreme 

Court held that the totality of the circumstances should be 

examined when evaluating the extent of participation and 

suggested several relevant but not dispositive factors to consider: 

(1) the defendant/aider and abettor’s role in planning the robbery; 

(2) his or her role in supplying or using lethal weapons; (3) his or 

her awareness of the “particular dangers posed by the nature of 

the crime, weapons used, or past experience or conduct of the 

other participants”; (4) his or her presence at the scene of the 

9 “The only necessary difference between a pre-Banks and 

Clark felony-murder special-circumstance finding and one 

returned after Banks and Clark arises at the level of appellate 

review: If the finding was challenged on direct appeal before 

Banks and Clark, appellate review of the sufficiency of the 

evidence to support the finding was not informed by Banks and 

Clark.” (Nunez, supra, 57 Cal.App.5th at p. 93, fn. 7, rev.gr.; 

People v. Price (2017) 8 Cal.App.5th 409, 450–451 (Price) [Banks

and Clark decisions govern judicial review for sufficiency of the 

evidence rather than the facts or elements a jury was required to 

find].)
15

killing and thus whether he or she was “in a position to facilitate 

or prevent the actual murder”; and (5) his or her actions after the 

use of lethal force. (Banks, at p. 803; see Clark, at p. 611.)

A defendant acts with reckless indifference to human life 

when he or she “has ‘ “knowingly engag[ed] in criminal activities 

known to carry a grave risk of death.” ’ ” (Banks, supra, 61 

Cal.4th at p. 801.) Specifically, “[t]he defendant must be aware of 

and willingly involved in the violent manner in which the 

particular offense is committed, demonstrating reckless 

indifference to the significant risk of death his or her actions 

create.” (Ibid.) In Clark, the court put it this way: “ ‘reckless 

indifference’ . . . encompasses a willingness to kill (or to assist 

another in killing) to achieve a distinct aim, even if the defendant 

does not specifically desire that death as the outcome of his 

actions.” (Clark, supra, 63 Cal.4th at p. 617.)

To assist appellate review of a jury’s reckless indifference 

finding, Clark set out a series of considerations relevant to 

determining whether a defendant acted with reckless indifference 

to human life. (Clark, supra, 63 Cal.4th at pp. 618–622.) These 

include: (1) the defendant’s use of a firearm, even if the 

defendant did not kill the victim (id. at p. 618); (2) the 

defendant’s physical presence at the crime, opportunities to 

prevent or contain the crime and/or aid the victim (id. at p. 619); 

(3) the duration of the underlying felony (id. at p. 620); (4) the 

defendant’s awareness of the likelihood one of the perpetrators 

will kill (id. at p. 621); and (5) any efforts by the defendant to 

minimize the risks of violence during the commission of the 

felony (ibid.). But “[j]ust as [the court] said of the factors 

concerning major participant status in Banks, ‘[n]o one of these 

considerations is necessary, nor is any one of them necessarily 
16

sufficient’ ” to establish whether a defendant was a major 

participant who acted with reckless indifference to human life. 

(Clark, at p. 618, quoting Banks, supra, 61 Cal.4th at p. 803.)

Banks and Clark did not create new law, nor did they 

fundamentally change the meaning of the phrases “major 

participant” and “reckless indifference to human life.” (Allison, 

supra, 55 Cal.App.5th at p. 458; Nunez, supra, 57 Cal.App.5th at 

p. 92, rev.gr.; Jones, supra, 56 Cal.App.5th at p. 484, rev.gr.) 

Rather, the high court in those cases “simply stated what section 

190.2, subdivision (d) has always meant.” (In re Miller (2017) 14 

Cal.App.5th 960, 979 & 978 [Banks and Clark “merely clarified 

the ‘major participant’ and ‘reckless indifference to human life’ 

principles that existed when defendant’s conviction became 

final”]; Nunez, supra, 57 Cal.App.5th at p. 92, rev.gr.; Allison, 

supra, 55 Cal.App.5th at p. 458.)

Indeed, our Supreme Court has not required any new jury 

instruction on the clarifications, and no mandatory language or 

material changes have been made to the CALJIC or CALCRIM 

special-circumstance instructions since Banks and Clark were 

decided. (Compare CALJIC No. 8.80.1 (1996 rev.) (6th ed. 1996)

with CALJIC No. 8.80.1 (Fall 2015 ed.); see also Nunez, supra, 57 

Cal.App.5th at p. 92, rev.gr.; Gomez, supra, 52 Cal.5th at p. 14, 

fn. 6, rev.gr. [CALCRIM No. 703 before Banks and Clark]; 

CALCRIM No. 703 (2020 ed.).) Rather, while both CALJIC No. 

8.80.1 and CALCRIM No. 703 now include optional language 

drawn from Banks and Clark regarding the factors a jury may 

consider, neither Banks nor Clark held that the trial court has a 

sua sponte duty to instruct on those factors. (Price, supra, 8 

Cal.App.5th at pp. 450–451 [jury instructions that omit the 

Banks and Clark factors are not defective]; Allison, supra, 55 
17

Cal.App.5th at pp. 458–459]; Bench Notes to CALCRIM No. 703 

(2020 ed.) p. 452.)

As we observed in Nunez, “the felony-murder specialcircumstance instructions given post-Banks and Clark do not 

necessarily differ at all from pre-Banks and Clark felony-murder 

special-circumstance instructions⎯the factors, issues, and 

questions the post- and pre-Banks and Clark juries consider to 

make the [major participant/reckless indifference] finding are 

exactly the same. Accordingly, whether a jury made a post- or 

pre-Banks and Clark [major participant/reckless indifference] 

finding, that finding establishes as a matter of law the 

defendant’s ineligibility for relief under section 1170.95 because 

he or she was found either to have participated in the specified 

felony with the intent to kill, or he was a major participant who 

acted with reckless indifference to human life and could still be 

convicted of murder notwithstanding the changes to section 189.” 

(Nunez, supra, 57 Cal.App.5th at p. 93, rev.gr.)

In this regard, we reiterate our disagreement with the 

decisions in Torres, supra, 46 Cal.App.5th 1168, rev.gr., Smith, 

supra, 49 Cal.App.5th 85, rev.gr., and York, supra, 54 

Cal.App.5th 250, rev.gr., because all three of these cases 

misinterpret the scope and effect of Banks and Clark.

According to these courts, because “the factual issues that 

the jury was asked to resolve [before the Banks and Clark

decisions] are not the same factual issues our Supreme Court has 

since identified as controlling,” such findings should not be 

treated “as if they resolved key disputed facts.” (Torres, supra, 46 

Cal.App.5th at p. 1180, rev.gr.; Smith, supra, 49 Cal.App.5th at 

p. 93, rev.gr.) York went a step further, holding that for purposes 

of section 1170.95, a pre-Banks and Clark jury finding that the 
18

defendant acted with reckless indifference to human life as a 

major participant should be treated as if that finding simply did 

not exist. (York, supra, 54 Cal.App.5th at p. 258, rev.gr.; Nunez, 

supra, 57 Cal.App.5th at p. 94, rev.gr.) However, contrary to 

these decisions’ holdings, we find “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. The mandatory instructions did not change, 

and the pre-Banks and Clark jury necessarily resolved the same 

factual issues beyond a reasonable doubt that a post-Banks and 

Clark jury would necessarily resolve beyond a reasonable doubt.” 

(Nunez, supra, 57 Cal.App.5th at p. 94, rev.gr.)

Finally, as we noted in Nunez, “jury findings in a final 

judgment are generally considered to be valid and binding unless 

and until they are overturned by collateral attack, regardless of 

whether they were subjected to appellate review. Nothing in 

Banks or Clark supports the automatic invalidation or disregard 

of such findings by a properly instructed jury.” (Nunez, supra, 57 

Cal.App.5th at p. 94, rev.gr.)

D. Appellant may not challenge his murder 

conviction by relitigating prior findings of fact in a section 

1170.95 proceeding.

Appellant contends that the evidence here is insufficient to 

support a finding that he was a major participant who acted with 

reckless indifference to human life. Acknowledging that he has 

previously maintained this claim in the trial court, on direct 

appeal, and in habeas petitions under Banks and Clark in the 

superior court and in this court, appellant asserts that all of the 

prior court rulings in this case erroneously rejected the claim on 
19

the basis of “[m]isrepresentations of [c]ritical [f]acts.” 

Specifically, appellant cites various conflicts and inconsistencies

in the evidence to contend that the evidence presented at trial 

does not establish beyond a reasonable doubt that appellant had 

a gun, that he held the family at gunpoint, or that he kept the 

family from seeking help. According to appellant, a fair review of 

the actual evidence presented at trial (with “significant 

clarifications”) in light of the Banks and Clark factors establishes 

appellant’s prima facie entitlement to relief under section 

1170.95 We disagree.

We have previously held that a jury’s findings that the 

defendant was a major participant who acted with reckless 

disregard for human life may not be relitigated in a section 

1170.95 proceeding. (Nunez, supra, 57 Cal.App.5th at pp. 83, 95–

96, rev.gr.) In so holding we have agreed with other appellate 

courts that a section 1170.95 petition is not the appropriate 

vehicle for a person convicted prior to Banks and Clark to 

challenge a felony-murder special circumstance, which must first 

be challenged by way of habeas corpus or other available 

collateral attack. (Nunez, at p. 83, rev.gr., citing Allison, supra,

55 Cal.App.5th at pp. 458, 461; Murillo, supra, 54 Cal.App.5th at 

p. 168, rev.gr.; Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr.; 

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

Simmons, supra, 65 Cal.App.5th at pp. 748–749, rev.gr.; Jones, 

supra, 56 Cal.App.5th at p. 482, rev.gr.)

Senate Bill No. 1437 contains no indication in its text or 

history that the Legislature intended to permit defendants to 

challenge their murder convictions by attacking prior findings of 

fact. Indeed, the Legislature made plain that its purpose in 

enacting section 1170.95 was to give defendants the benefit of the 
20

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

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

As the court in Allison observed, “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.” (Allison, supra, 

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

Accordingly, as we held in Nunez, a defendant whose preBanks and Clark special-circumstance finding cannot withstand 

post-Banks and Clark scrutiny should seek relief by way of a 

petition for habeas corpus in which the petitioner would properly 

bear the burden of proof.10 (Nunez, supra, 57 Cal.App.5th at 

10 As Galvan noted, the guidance given by our Supreme 

Court in Banks and Clark amounted to a sufficiently significant 

clarification of the law that “courts have allowed defendants to 

challenge the validity of pre-Banks and Clark specialcircumstance findings via habeas corpus, making an exception to 

the rule that ordinarily bars a defendant from challenging the 

sufficiency of the evidence in a habeas petition.” (Galvan, supra, 

52 Cal.App.5th at p. 1141, rev.gr.; see In re Scoggins (2020) 9 

Cal.5th 667, 673 [“Where a decision clarifies the kind of conduct 

proscribed by a statute, a defendant whose conviction became 

final before that decision ‘is entitled to post-conviction relief upon 

a showing that his [or her] conduct was not prohibited by the 

statute’ as construed in the decision”].) Thus, unlike its 

preclusive effect with respect to his petition under section 

1170.95, appellant’s direct challenge to the sufficiency of the 

evidence in support of the jury’s special-circumstance findings in 

Garcia I did not bar a habeas petition because this court’s 
21

pp. 95–96, rev.gr.; Jones, supra, 56 Cal.App.5th at pp. 482–483, 

rev.gr.; Murillo, supra, 54 Cal.App.5th at p. 168, rev.gr.; Galvan, 

supra, 52 Cal.App.5th at p. 1142, rev.gr. [“If [appellant] 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”].)

Some courts have held that on appeal from the denial of a 

section 1170.95 petition, a reviewing court may independently 

conduct its own Banks/Clark analysis to determine whether the 

special-circumstance finding was supported by substantial 

evidence. (People v. Law (2020) 48 Cal.App.5th 811, 822, 825, 

review granted July 8, 2020, S262490; Murillo, supra, 54 

Cal.App.5th at pp. 169–173, rev.gr.; see also People v. Pineda

(2021) 66 Cal.App.5th 792, 795, 801–802, review granted Sept. 

29, 2021, S270513; People v. Secrease (2021) 63 Cal.App.5th 231,

236, 255–256 [“As is always the case with sufficiency-of-theevidence review, the application of Banks and Clark to a given set 

of facts ultimately presents an issue of law”], review granted 

June 30, 2021, S268862 (Secrease).) According to these cases, if 

the court determines the felony-murder special-circumstance 

finding was supported by substantial evidence under the Banks

and Clark standards, the defendant is precluded from alleging 

prima facie entitlement to relief under section 1170.95. (See

Secrease, at p. 236, rev.gr.; Murillo, at p. 173, rev.gr.; Law, at 

p. 825, rev.gr.) On the other hand, if the felony-murder specialcircumstance finding fails analysis under Banks and Clark, an 

rejection of the substantial evidence challenge was made without 

the benefit of the Banks and Clark clarifications.
22

order to show cause must issue and the case must be set for an 

evidentiary hearing. (Secrease, at p. 236, rev.gr.)

Here, even if we adopted the “middle ground” approach 

favored by these courts (see Secrease, supra, 63 Cal.App.5th at 

p. 247, rev.gr.), we would nevertheless be compelled to conclude 

that appellant cannot make a prima facie showing of eligibility 

for section 1170.95 relief as a matter of law for the simple reason 

that substantial evidence supports the jury’s finding that 

appellant was a major participant in the burglary and attempted 

robbery who acted with reckless disregard for human life.

The standards under which we assess challenges to the 

sufficiency of the evidence are well settled, and are the same 

principles we apply to assess the sufficiency of the evidence 

underlying a true finding on a special circumstance. (Banks, 

supra, 61 Cal.4th at p. 804.) “ ‘When reviewing a challenge to the 

sufficiency of the evidence, we ask “ ‘whether, after viewing the 

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.’ ” [Citation.] Because the 

sufficiency of the evidence is ultimately a legal question, we must 

examine the record independently for “ ‘substantial evidence—

that is, evidence which is reasonable, credible, and of solid 

value’ ” that would support a finding beyond a reasonable doubt. 

[Citation.] In doing so, we ‘view the evidence in the light most 

favorable to the jury verdict and presume the existence of every 

fact that the jury could reasonably have deduced from that 

evidence.’ [Citation.] ‘We must also “accept logical inferences 

that the jury might have drawn from the circumstantial 

evidence.” ’ [Citation.] We do not question the credibility of a 

witness’s testimony, so long as it is ‘not inherently improbable,’ 
23

nor do we reconsider the weight to be given any particular item of 

evidence.” (People v. Navarro (2021) 12 Cal.5th 285, 302; People 

v. Brooks (2017) 3 Cal.5th 1, 57.)

Appellant’s challenge to the evidentiary support for the 

major participant and reckless disregard findings hangs on his 

assertion that the evidence does not support a finding beyond a 

reasonable doubt that appellant had a gun or that he prevented 

any family members from seeking help. But it is not for the 

reviewing court to determine whether a fact has been proved 

beyond a reasonable doubt; that is the province of the jury. 

(People v. Reilly (1970) 3 Cal.3d 421, 425 [“The test on appeal is 

whether substantial evidence supports the conclusion of the trier 

of fact, not whether the evidence proves guilt beyond a reasonable 

doubt”].) Here, Venegas testified at trial that appellant pointed a 

gun at him and said, “ ‘You are not going nowhere. Get your ass 

down.’ ” Although that testimony was impeached with Venegas’s 

statement to police the night of the murder that the “little cholo” 

in the back did not have a gun, and no one else in the family saw 

appellant with a gun, it was the jury’s prerogative to weigh 

Venegas’s credibility and accept or reject his trial testimony 

about appellant’s use of a gun. As our Supreme Court has long 

observed,“ ‘[i]f the circumstances reasonably justify the jury’s 

findings, the reviewing court may not reverse the judgment 

merely because it believes that the circumstances might also

support a contrary finding.’ ” (People v. Thompson (2010) 49 

Cal.4th 79, 114, quoting People v. Ceja (1993) 4 Cal.4th 1134, 

1139.)

Moreover, appellant’s claim that the evidence does not 

support a finding that he kept the family from seeking help is 

belied by the record. Venegas and his aunt both testified that 
24

appellant ordered Venegas down from the fence when Venegas 

was trying to get away to call the police, and Venegas complied. 

Had Venegas been able to get away when he first tried, the police 

might have arrived in time to prevent Arcos’s murder. As it was, 

appellant did not leave his post allowing Venegas to call the 

police until just before the shooting, when it was too late.

Finally, as the superior court explained in denying 

appellant’s habeas petition, the balance of Banks and Clark

factors supports the jury’s determination that appellant was a 

major participant in the burglary and attempted robbery who 

acted with reckless disregard for human life. There was 

substantial evidence that appellant used a gun to prevent the 

victims from leaving the house to seek help. The jury could 

reasonably infer that appellant was aware one of his cohorts had 

retrieved a gun prior to breaking down the door to the house and 

that violence would ensue. Appellant was also aware of the 

dangerous nature of the crime because he, too, was armed. By 

their very nature, guns are dangerous and deadly, and it is 

reasonable to expect that the use of a gun would result in the 

death of another. (See Clark, supra, 63 Cal.4th at p. 618.) 

Appellant’s use of a gun also reflected his willingness to use 

lethal force, thus supporting a finding that he acted with reckless 

indifference to human life. By standing guard over the family 

outside while Davalos and Duenas carried out the robbery inside, 

appellant played an active role in the criminal enterprise leading 

up to the murder, and fled the scene afterward.

II. The Superior Court Properly Denied Appellant’s 

Petition for a Franklin Hearing

Appellant contends that section 3051 violates equal 

protection by excluding people like him who were between the 
25

ages of 18 and 25 when they committed murder and were 

sentenced to life without the possibility of parole. He further 

asserts that the superior court erred in denying the request for a 

Franklin hearing because youth factors are relevant to the 

question of whether, as a teenager, he acted with reckless 

indifference to human life. We reject both claims.

A. Section 3051 does not violate equal protection by 

treating youthful LWOP offenders over the age of 18 

differently than both juvenile LWOP offenders and 

youthful murderers not sentenced to LWOP.

“In response to a series of decisions addressing Eighth 

Amendment limits on juvenile sentencing (see, e.g., Miller v. 

Alabama (2012) 567 U.S. 460; Graham v. Florida (2010) 560 U.S. 

48, 75), the Legislature enacted section 3051.” (People v. Sands

(2021) 70 Cal.App.5th 193, 197–198 (Sands); Sen. Bill No. 260 

(2013–2014 Reg. Sess.); Stats. 2013, ch. 312, §§ 1, 4.) In its 

current form, the statute grants to most persons convicted of 

crimes committed before the age of 26 the right to a “youth 

offender parole hearing” to be held 15, 20, or 25 years after the 

imposition of sentence to enable the defendant to seek parole 

based on his or her “diminished culpability [as a] juvenile[] as 

compared to adults, the hallmark features of youth, and any 

subsequent growth and increased maturity.” (§§ 3051, subds. 

(a)(1) & (b), 4801, subd. (c); Stats. 2013, ch. 312, § 1; Sands, at 

p. 198.)

In Franklin, our Supreme Court held that a juvenile is 

entitled to an “adequate opportunity . . . to make a record of 

mitigating evidence tied to his youth”—either at sentencing or, 

failing that, at a separate hearing—for use at the youth offender 

parole hearing to which he or she is entitled under section 3051. 
26

(Franklin, supra, 63 Cal.4th at pp. 268–269, 283–284.) A few 

years later in In re Cook (2019) 7 Cal.5th 439, our Supreme Court 

held that an evidence preservation hearing of the type envisioned 

by Franklin is available for offenders who are eligible for youthful 

offender parole hearings under section 3051. (Cook, supra, at 

pp. 458–459.) However, only those persons who are eligible for a 

youthful offender parole hearing under section 3051 are entitled 

to an evidentiary hearing under Franklin, and section 3051, 

subdivision (h) makes ineligible for a youth offender parole 

hearing those offenders who were over the age of 18 when they 

committed their offense, if they were sentenced to LWOP or were 

convicted under the One Strike or Three Strikes laws.

Appellant was 19 years old when he committed the offenses 

for which he was sentenced to LWOP, and concedes that under 

the current law he will not be eligible for a youth offender parole 

hearing. He argues, however, that equal protection principles 

require that he be treated as eligible for parole consideration.

Appellate courts throughout California have uniformly 

rejected appellant’s equal protection argument, affirming orders 

denying a Franklin-type hearing to a defendant sentenced to 

LWOP for special-circumstance murder committed when he or 

she was between 18 and 26 years old. (Sands, supra, 70 

Cal.App.5th at pp. 203–205; In re Murray (2021) 68 Cal.App.5th 

456, 463–464 (Murray); People v. Jackson (2021) 61 Cal.App.5th 

189, 196–200 (Jackson); People v. Acosta (2021) 60 Cal.App.5th 

769, 779–780; People v. Morales (2021) 67 Cal.App.5th 326, 347–

348 (Morales); In re Williams (2020) 57 Cal.App.5th 427, 435–436 

(Williams); In re Jones (2019) 42 Cal.App.5th 477, 482–483.) 

These courts have concluded that section 3051 does not violate 

equal protection by treating young adult offenders sentenced to 
27

LWOP more harshly than juvenile offenders sentenced to LWOP 

because, even assuming these two groups are similarly situated, 

an LWOP sentence imposed on a juvenile offender might violate 

the constitution and the Legislature “could rationally decide to 

remedy unconstitutional sentences but go no further.” (Sands, at 

p. 204; but see Williams, at p. 435 [young adult offenders 

sentenced to life without parole are not similarly situated to 

those sentenced to de facto life without parole].)

Our Supreme Court has explained that courts “find a 

denial of equal protection only if there is no rational relationship 

between a disparity in treatment and some legitimate 

government purpose. [Citation.] This core feature of equal 

protection sets a high bar before a law is deemed to lack even the 

minimal rationality necessary for it to survive constitutional 

scrutiny. Coupled with a rebuttable presumption that legislation 

is constitutional, this high bar helps ensure that democratically 

enacted laws are not invalidated merely based on a court’s 

cursory conclusion that a statute’s tradeoffs seem unwise or 

unfair.” (People v. Chatman (2018) 4 Cal.5th 277, 288–289.) 

Accordingly, we must accept any plausible rational basis without 

questioning its wisdom, logic, persuasiveness, or fairness, and 

regardless of whether the Legislature ever articulated it. (Id. at 

p. 289.)

A sentence of life without parole may violate the Eighth 

Amendment’s prohibition on cruel and unusual punishment if 

imposed on a juvenile offender (Graham v. Florida (2010) 560 

U.S. 48, 75; Miller v. Alabama (2012) 567 U.S. 460, 479), while 

not offending the Eighth Amendment when imposed on an adult 

(Sands, supra, 70 Cal.App.5th at p. 204; Morales, supra, 67 

Cal.App.5th at p. 347). For this reason, we agree with the Courts 
28

of Appeal which have uniformly determined that the Legislature 

had a rational basis to distinguish between young adult and 

juvenile offenders based on their age by choosing to remedy the 

unconstitutionality of life without parole sentences for juvenile 

offenders. (Sands, at p. 204; Murray, supra, 68 Cal.App.5th at 

pp. 463–464 [age is rational basis for distinction]; Morales, supra, 

67 Cal.App.5th at p. 347; Acosta, supra, 60 Cal.App.5th at pp. 

779–780; Williams, supra, 57 Cal.App.5th at p. 435, fn. 5; see

Miller, supra, 567 U.S. at p. 481 [“[w]e have by now held on 

multiple occasions that a sentencing rule permissible for adults 

may not be so for children”]; Roper v. Simmons (2005) 543 U.S. 

551, 574 [“[t]he age of 18 is the point where society draws the line 

for many purposes between childhood and adulthood”].)

Despite finding a rational basis for the different treatment 

of young adult and juvenile offenders under section 3051, 

subdivision (h), many justices of the California Courts of Appeal 

have called for legislative reconsideration of section 3051. 

(Jackson, supra, 61 Cal.App.5th at pp. 201–202 (conc. opn. of 

Dato, J.); Acosta, supra, 60 Cal.App.5th at p. 781 (maj. opn. of 

Goethals, J., joined by Bedsworth, Acting P. J.); People v. 

Montelongo (2020) 55 Cal.App.5th 1016, 1041 (conc. opn. of Segal, 

J.); In re Jones, supra, 42 Cal.App.5th at pp. 486–487 (conc. opn. 

of Pollak, P. J., joined by Streeter, J.); see also Williams, supra, 

57 Cal.App.5th at p. 436, fn. 7 [acknowledging tension between 

§ 3051’s parole eligibility scheme and equal protection principles]; 

People v. Escamilla (Mar. 18, 2021, F077568) [nonpub. opn.] (maj. 

opn. of Meehan, J., joined by DeSantos, J.); People v. Smith

(Feb. 24, 2021, B305527) [nonpub. opn.] [same].) California 

Supreme Court Justice Liu has echoed this invitation, urging 

“ ‘the Legislature to reconsider whether our evolving knowledge 
29

of brain development suggests that unalterable judgments about 

individuals based on what they did between age 18 and 25 may 

be unjustifiable.’ (Jackson, at pp. 201–202 (conc. opn. of Dato, 

J.).)” (People v. Jackson (June 9, 2021, No. S267812) 

___Cal.5th___ [2021 Cal. LEXIS 3874 at pp. *1–*3] (conc. 

statement by Liu, J.).)

Unless and until the Legislature sees fit to amend section 

3051, we hold that appellant is not entitled to an evidentiary 

hearing under Franklin because he is not entitled to a youth 

offender parole hearing under section 3051 in the first instance.

B. The superior court did not err by declining to 

grant a Franklin-like hearing for purposes of the 

resentencing petition under section 1170.95.

Appellant also contends the superior court erred in denying 

his petition for a Franklin hearing “to gather the type of evidence 

that could be used both at a youth offender parole hearing and as 

part of an 1170.95 presentation on the issue of whether 

appellant, as a 19-year-old, acted with reckless indifference to 

human life.” As set forth above, however, appellant is ineligible 

both for resentencing under section 1170.95 and for a youth 

offender parole hearing under section 3051. He cites no law 

suggesting he has any right to a Franklin hearing under these 

circumstances. Accordingly, we find no error in the superior 

court’s denial of appellant’s petition for a Franklin hearing.
30

DISPOSITION

The orders of the superior court are affirmed.

NOT TO BE PUBLISHED.

LUI, P. J.

I concur:

CHAVEZ, J.
People v. Garcia, B308824

ASHMANN-GERST, J., Concurring in the judgment.

I agree with the majority that the trial court properly 

denied defendant Francisco Garcia’s petition for resentencing 

under Penal Code section 1170.95.1 In finding the special 

circumstance (§ 190.2, subd. (a)(17)) true, the jury necessarily 

found either that defendant was an aider and abettor who 

harbored an intent to kill or a major participant who acted with 

reckless indifference to human life, findings that would make him 

guilty of murder under the amended law. (See §§ 189, subd. 

(e)(3), 1170.95, subd. (a).) Either finding makes defendant 

ineligible as a matter of law. (People v. Farfan (2021) 71 

Cal.App.5th 942, 954 [“the jury’s true finding on the special 

circumstance establishes appellant is ineligible for section 

1170.95 relief as a matter of law”].)

And, the jury’s special circumstance finding is supported by 

substantial evidence through the prism of People v. Banks (2015) 

61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. (See, 

e.g., People v. Secrease (2021) 63 Cal.App.5th 231, 255, review 

granted June 30, 2021, S268862.)

Pursuant to my concurring opinion in People v. 

Nunez (2020) 57 Cal.App.5th 78, 97–99, review granted 

January 13, 2021, S265918, I do not join in the majority’s 

conclusion that the jury’s finding “must first be challenged by 

way of habeas corpus or other available collateral attack.” 

(Maj. Opn., at p. 19.)

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
2

Finally, I agree that the trial court properly denied 

defendant’s petition for a hearing pursuant to People v. Franklin

(2016) 63 Cal.4th 261.

__________________________, J.

ASHMANN-GERST