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Filed 11/10/22 P. v. Chavez CA4/2

Opinion following transfer from Supreme 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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. CR46579)

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, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Senior Assistant 

Attorneys General, and Arlene A. Sevidal, Lynne G. McGinnis, and Randall D. Einhorn, 

Deputy Attorneys General, for Plaintiff and Respondent.
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In 1996, petitioner Daniel Ray Chavez was convicted of (among other things) two 

counts of first degree murder, with felony-murder special circumstances, on a felonymurder 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 conclusively 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, ch. 1015, § 4, amended by Stats. 2021, ch. 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.
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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 for 

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 felony murder special-circumstance finding. (Strong, 

supra, 13 Cal.5th at p. 706.) Therefore, a felony 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 victim 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).)
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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 People 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 made. 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.