1

Filed 11/10/22 P. v. Chavez CA4/2 Opinion following transfer from Sup reme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. DANIEL RAY CHAVEZ , Defendant and Appellant. E074718 (Super.Ct.No. CR 46579 )
OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy , Judge.
Reversed

. Joanna Rehm , under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta , Attorney s General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland , Senior Assistant Attorney s General, and Arlene A. Sevidal , Lynne G. Mc G innis , and Randall D. Einhorn , Deputy Attorneys General, for Plaintiff and Respondent.2

In 1996, petitioner Daniel Ray Chavez was convicted of (among other things) two counts of first degree murder, with felony

- m urder special circumstances, on a felony

murder theory. In 2019, he filed a petition to vacate the murder conviction under Penal
Code section 1172.6. 1 The trial court denied the petition; it ruled that the felony

- murder special circumstance findings con clusively established that he was not eligible for relief.
Petitioner contends that this was error. Under People v. Strong (2022) 13 Cal.5th
698 ( Strong )

— decided while this appeal was pending

— he is correct.
I
DISCUSSION Under section 1172.6, the trial court must vacate a first

- degree murder conviction that was based on a felony

- murder theory, unless the petitioner either (1) was the actual killer, (2) had the intent to kill and aided and abetted the commission of first

- degree murder, or (3) was a major participant in the underlying felony and acted with reckless

1 All further statutory citations are to the Penal Code. The petition was actually filed under former section 1170.95. (Enacted by Stats. 2018, c h

. 1015, § 4 , a mended by Stats. 2021, c h

. 551, § 2

. ) While this appeal was pending, former section 1170.95 was renumbered as section 1172.6, with no change in text

. (Stats. 2022, ch. 58, § 10

. ) We will use section 1172.6, somewhat anachronistically, to refer to whichever one of the two statutes was in effect at the relevant time.3

indifference to human life. 2 ( § 1172.6, subd. (d)(3), incorporating by reference § 189, subd. ( e ).) A felony

- murder special circumstance, however, requires that the defendant either (1) was the actual killer, (2) had the intent to kill and aided and abetted the commission of
first

- degree murder, or (3) was a major participant in the underlying felony and acted
with reckless indifference to human life. ( § 190.2, subds. (a)(17), (b)

- (d).) Accordingly, when first confronted with the question, this court held that a true finding on a felony

- murder special circumstance conclusively established ineligibility f or relief under section 1172.6. ( People v. Jones (2020) 270 Cal.Rptr.3d 362 , review granted
Jan

. 27, 2021, S265854, depublished and transferred with directions Sept. 28, 2022.) While this appeal was pending, however, Strong held that People v. Banks (2015 )
61 Cal.4th 788 ( Banks ) and People v. Clark (2016) 63 Cal.4th 522 ( Clark ) “substantially clarified” the requirements of a f elony murder special

- circumstance finding . ( Strong , supra , 13 Cal. 5th at p. 706.) Therefore, a f elony murder special

- circumstance finding
made before Banks and Clark were decided does not conclusively establish ineligibility
for relief under section 1172. 6 . ( Strong , supra , at pp. 710

- 720.) The People concede that, in light of Strong , the trial court erred, and we must
reverse the order appealed from. We agree, and we will do so.

2 Or

— we note for completeness , although it is not relevant here

— unless the vi ctim was a police officer killed in the course of his or her duties and the defendant knew or should have known that. ( § 189, subd. (f).)4

Petitioner also argues that his petition made a prima facie case, and therefore we
should direct the trial court to issue an order to show cause

. ( See § 1172. 6, subd. (c).) Somewhat unhelpfully, the Peop le do not respond to this argument. Because the trial court denied the petition based on the felony

- murder special circumstances, it has not yet ruled on whether the petition otherwise stated a prima facie case. We decline to review a ruling it has not ma de. We leave the question of whether to issue an order to show cause to be decided by the trial court in the first instance.
II
DISPOSITION The order appealed from is reversed

. NOT TO BE PULISHED IN OFFICIAL REPORTS RAMIREZ P. J.

We concur:
McKINSTER J.
MENETREZ J.