1

Filed 1/20/23 In re Adock 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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)

----

In re MARK ADOCK on Habeas Corpus. C089547

(Super. Ct. No. )

05F01670

THE PEOPLE,

Plaintiff and Respondent,

v.

MARK ADOCK,

Defendant and Appellant.

3 Crim.C089581

OPINION ON TRANSFER

MODIFICATION

[NO CHANGE IN 

JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on January 13, 2023, be modified as 

follows:

1. Delete the second sentence in footnote 1 on page 1 beginning with 

“Effective June 20, 2022,” and insert the following sentence in its place:
2

Effective June 30, 2022, former section 1170.95 was recodified without 

substantive change to section 1172.6.

This modification does not change the judgment.

BY THE COURT:

 

HULL, Acting P.J.

 

DUARTE, J.

 

RENNER, J.
1

Filed 1/13/23 In re Adock CA3 (unmodified opinion)

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)

----

In re MARK ADOCK on Habeas Corpus. C089547

(Super. Ct. No. )

05F01670

THE PEOPLE,

Plaintiff and Respondent,

v.

MARK ADOCK,

Defendant and Appellant.

3 Crim.C089581

OPINION ON TRANSFER

In this matter on transfer from the California Supreme Court, we reverse the trial 

court’s denial of defendant Mark Adcock’s petition for resentencing under Penal Code 

section 1172.6.

1

1 Further undesignated statutory references are to the Penal Code. Effective 

June 20, 2022, former section 1170.95 was recodified without substantive change to 
2

BACKGROUND AND ANALYSIS

Defendant was convicted of first-degree murder with robbery and burglary special 

circumstances and was sentenced to life without the possibility of parole. We affirmed 

his convictions on appeal. (People v. Adcock (Mar. 24, 2009, C058167) [nonpub. opn.].)

Defendant later petitioned for habeas corpus and resentencing under section 

1172.6 based on changes to the felony murder rule under Senate Bill No. 1437 (Stats. 

2018, ch. 1015, § 4, eff. Jan. 1, 2019) (Senate Bill 1437). Section 1176.2, also part of 

Senate Bill 1437, permits a person convicted of felony murder to petition the sentencing 

court to vacate the murder conviction and resentence the person on any remaining counts 

if, among other things, the petitioner could not be convicted of first- or second-degree 

murder due to the change in the law, i.e., he neither killed nor intended to kill and was not 

a major participant in the underlying felony who acted with reckless indifference to 

human life. (§§ 188, 189, 1172.6, subd. (a).) The trial court denied defendant’s petitions, 

finding that neither made a prima facie case for relief under section 1172.6. It denied the 

resentencing petition without appointing counsel for defendant despite defendant’s 

request and without receiving briefing from the People. 

Defendant appealed the trial court’s order and petitioned for habeas relief in this 

court. In an unpublished opinion, we denied the habeas petition and affirmed the trial 

court’s order denying defendant’s resentencing petition. On the habeas petition, we 

concluded sufficient evidence supported the jury’s special circumstance findings that 

defendant was a major participant in the underlying felonies and acted with reckless 

indifference to human life, as those elements had been defined by the California Supreme 

Court after defendant’s conviction in People v. Banks (2015) 61 Cal.4th 788 (Banks) and 

People v. Clark (2016) 63 Cal.4th 522 (Clark). On the resentencing petition, we agreed 

section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed his petition under former 

section 1170.95, but we will refer to the current section number throughout this opinion.
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the trial court committed error under section 1172.6 by not appointing counsel for 

defendant or receiving briefing from the People before determining whether defendant 

had made a prima facie case, but we held that the jury’s special circumstance findings, 

because they were not set aside through habeas, precluded relief under section 1172.6 as 

a matter of law. (In re Adcock (Feb. 4, 2022, C089547, C089581) [nonpub. opn.].)

The California Supreme Court subsequently granted review and transferred the 

matter to us with directions to vacate our opinion and reconsider the cause under People 

v. Strong (2022) 13 Cal.5th 698 (Strong). By separate order, we vacated our decision. 

In supplemental briefing after transfer, the parties agree that under Strong the 

jury’s true findings on the robbery-murder and burglary-murder special circumstance 

allegations, made before Banks and Clark, do not render defendant ineligible for relief 

under section 1172.6 as a matter of law. Having reconsidered the matter, we agree.

In Strong, the California Supreme Court held that a jury’s special circumstance 

findings made before Banks and Clark “do not preclude a defendant from making out a 

prima facie case for relief under Senate Bill 1437. This is true even if the trial evidence 

would have been sufficient to support the findings under Banks and Clark.” (Strong, 

supra, 13 Cal.5th at p. 710.) 

Strong further held that a trial court may not at the prima facie stage of section 

1172.6 proceedings conduct a sufficiency-of-the evidence review of a specialcircumstance finding which predates Banks and Clark to determine if a defendant is 

eligible for relief. (Strong, supra, 13 Cal.5th at pp. 718-720.) A substantial evidence 

determination “would entail factfinding prohibited at the prima facie stage.” (Id. at 

p. 720.)

The Supreme Court summarized: “Section 1172.6 offers resentencing for 

petitioners who have not been determined beyond a reasonable doubt to have the degree 

of culpability now required for a murder, attempted murder, or manslaughter conviction. 

Neither the jury’s pre-Banks and Clark findings nor a court’s later sufficiency of the 
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evidence review amounts to the determination section 1172.6 requires, and neither set of 

findings supplies a basis to reject an otherwise adequate prima facie showing and deny 

issuance of an order to show cause.” (Strong, supra, 13 Cal.5th at p. 720.)

Strong governs this case. Contrary to our and the trial court’s holdings, neither the 

jury’s special circumstance findings nor the trial court’s finding of sufficient evidence 

preclude defendant from resentencing under section 1176.2. The trial court thus erred 

when it denied defendant’s resentencing petition at the prima facie stage on those 

grounds. 

The trial court erred further by determining that defendant had not stated a prima 

facie case without first providing counsel, receiving briefing, and holding a hearing to 

determine whether defendant had made a prima facie case for relief. (§ 1172.6, subds. 

(b), (c); People v. Lewis (2021) 11 Cal.5th 952, 963-964, 966.) The error is statutory 

error. (Id. at pp. 972-973.) As a result, it is reviewed for prejudice under the Watson

standard of review. (Id. at pp. 974, 975; see People v. Watson (1956) 46 Cal.2d 818, 

836.) Under that standard, defendant must demonstrate there is a reasonable probability 

that in the absence of the error, he would have obtained a more favorable result. (Ibid.) 

“More specifically, a petitioner ‘whose petition is denied before an order to show cause 

issues has the burden of showing “it is reasonably probable that if [he or she] had been 

afforded assistance of counsel his [or her] petition would not have been summarily 

denied without an evidentiary hearing.” ’ [Citation.]” (Lewis, at p. 974.)

The error was prejudicial. It is reasonably probable that had defendant been 

provided counsel, counsel would have ensured that defendant’s petition was not 

summarily denied without an evidentiary hearing in violation of the statute.
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DISPOSITION

In C089581, the trial court’s order denying the petition to vacate defendant’s 

sentence under section 1170.95 is reversed and the matter is remanded for further 

proceedings not inconsistent with this opinion.

In C089547, the petition for writ of habeas corpus is dismissed as moot. 

 

HULL, Acting P. J.

We concur:

 

DUARTE, J.

 

RENNER, J.