Filed 10/6/21 P. v. Berry 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.

TRAVIS WAYNE BERRY,

Defendant and Appellant.

 B303420

 (Los Angeles County

 Super. Ct. No. BA057902)

APPEAL from an order of the Superior Court of Los 

Angeles County, Larry Fidler, Judge. Affirmed.

Laura Schaefer, 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, Assistant 

Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Travis Wayne Berry (defendant) 

appeals from the denial of his petition for resentencing under 

Penal Code section 1170.95.1 Defendant contends that he made a 

prima facie showing of entitlement to relief under the statute, 

such that the trial court was required to issue an order to show 

cause (OSC) and hold an evidentiary hearing on the issue. 

Defendant also contends that the trial court erred in relying on 

the record of conviction and special circumstance findings to find 

that he was ineligible for relief under the statute as a matter of 

law. Finding no merit to defendant’s contentions, we affirm the 

order.

BACKGROUND

In 1993, a jury convicted defendant and codefendant 

Anthony Fitzpatrick of two counts of first degree murder (§ 187), 

one count each of second degree robbery (§ 211), and kidnapping 

(§ 207, subd. (a)). As to each murder, the jury found true the 

kidnapping and robbery special circumstances alleged under 

section 190.2, former subdivision (a)(17)(i) and (ii), as well as the 

multiple-murder special circumstance alleged under section 

190.2, subdivision (a)(3). Defendant was sentenced to two terms 

of life imprisonment without the possibility of parole for the 

murders, and terms imposed for the robbery and the kidnapping 

were stayed pursuant to section 654.

The judgment was affirmed on appeal in People v. 

Fitzpatrick (Sept. 19, 1995, B079323) (nonpub. opn.), and the 

California Supreme Court denied review. We summarize the 

1 All further statutory references are to the Penal Code, 

unless otherwise indicated.
3

evidence as set forth in the opinion in that appeal. In January 

1992, defendant, Fitzpatrick and two others robbed two victims of 

marijuana and money at gunpoint at Fitzpatrick’s home. The 

victims were then forced into a car and driven to an avocado 

grove where Fitzpatrick shot and killed one of the victims, and a

codefendant shot and killed the other victim.

In March 2019, defendant filed a petition for resentencing 

pursuant to section 1170.95. Defendant checked nearly every box 

on the preprinted form, resulting in the following allegations: 

that defendant had been convicted of first or second degree 

murder pursuant to the felony-murder rule or the natural and 

probable consequences doctrine; that he could not now be 

convicted of murder because of changes to sections 188 and 189; 

that he was not the actual killer, did not with the intent to kill or 

aid, abet, counsel, command, induce, solicit, request, or assist the 

actual killer in the commission of murder in the first degree; that 

he was not a major participant in the felony or act with reckless 

indifference to human life during the course of the crime or 

felony; and that the victim was not a peace officer in the 

performance of his or her duties.2 Defendant requested 

appointment of counsel. Attached to defendant’s section 1170.95 

2 Defendant also checked the box for the following allegation: 

“There has been a prior determination by a court or jury that I 

was not a major participant and/or did not act with reckless 

indifference to human life under Penal Code § 190.2(d). 

Therefore, I am entitled to be re-sentenced pursuant to 

§ 1170.95(d)(2).” There is no evidence or other indication in the 

record of any such prior determination.
4

petition is a petition for writ of habeas corpus dated March 11, 

2019, a memorandum of points and authorities, and exhibits.3

Both petitions were served on the district attorney, who 

obtained an extension of time to file an informal response. 

Counsel was appointed for defendant. After both sides filed 

briefs the trial court scheduled a hearing, heard the argument of 

counsel, and took the matter under submission. On 

December 13, 2019, the trial court issued an order denying the 

section 1170.95 petition.4 In its written order, the trial court 

ruled that the jury’s true findings as to the three special 

circumstance allegations rendered defendant ineligible for section 

1170.95 relief. The court found that the jury was instructed that 

in order to find a murder special circumstance to be true as to a 

nonkiller, it had to find the nonkiller acted with intent to kill. 

The trial court also found, based upon the statement of facts in 

the appellate opinion, that defendant “was indeed a major 

participant who acted with reckless indifference to human life.”

3 The disposition of the habeas petition does not appear in 

the appellate record. In a footnote of his opening brief, defendant 

states: “Although the court presided over a hearing on 

[defendant’s] writ of habeas corpus . . . , the court did not indicate 

it denied the instant petition based on any findings made in that 

separate proceeding.” Defendant cites page 4 of the reporter’s 

transcript of the hearing on defendant’s section 1170.95 petition, 

which reflects the trial court’s statement that it had read and 

considered all the moving papers in this matter, and was “also 

extremely familiar with this case, having conducted a lengthy 

evidentiary hearing on the original habeas corpus.”

4 The order states that an OSC issued; defendant represents

that it was not.
5

Defendant filed a timely notice of appeal from the court’s 

order.

DISCUSSION

I. Section 1170.95 procedure

Defendant contends that he made a prima facie showing of 

entitlement to relief under section 1170.95, such that the trial 

court was required to issue an OSC and hold an evidentiary 

hearing on the issue.

Section 1170.95 provides a procedure to obtain vacatur and 

resentencing if (1) “[a] complaint, information, or indictment was 

filed against [him] that allowed the prosecution to proceed under 

a theory of felony murder or murder under the natural and 

probable consequences doctrine,” (2) he “was convicted of first 

degree or second degree murder following a trial,” and (3) he 

“could not be convicted of first or second degree murder because 

of changes to Section 188 or 189 made effective January 1, 2019.” 

(§ 1170.95, subd. (a).)

The statutory procedure requires that upon the filing of a 

facially sufficient petition, the trial court must appoint counsel, 

entertain briefing, and then determine whether a petitioner has 

made a prima facie case for relief under section 1170.95, 

subdivision (c). (People v. Lewis (2021) 11 Cal.5th 952, 957

(Lewis).) If so, the trial court must issue an OSC and schedule a 

hearing at which the prosecution bears the burden of proving 

beyond a reasonable doubt that the petitioner is ineligible for 

section 1170.95 relief. (§ 1170.95, subd. (d)(1) & (3).)

II. Record of conviction

Defendant argues that the court should not have looked to 

the record of conviction to determine whether he had made a 
6

prima facie showing, but should instead have determined the 

issue solely from the allegations of his section 1170.95 petition, 

and as they were facially sufficient, the court should have issued 

an OSC. We disagree.

In Lewis, supra, 11 Cal.5th 952, our Supreme Court held 

that if a defendant files a facially compliant petition and requests 

the appointment of counsel, the trial court must appoint counsel 

and entertain briefing regardless of whether the record of 

conviction unequivocally demonstrates that the defendant is not 

entitled to relief. (See id. at pp. 957, 962-963, 971-972.) 

However, after counsel has been appointed and both sides have 

filed briefs, the trial court and “the parties can, and should, use 

the record of conviction to aid the trial court in reliably assessing 

whether a petitioner has made a prima facie case for relief under 

[section 1170.95,] subdivision (c).” (Id. at pp. 957, 972.) Here, 

counsel was appointed and defendant was given the opportunity 

for briefing. The trial court thus did not err in reviewing the 

record of conviction.

III. Effect of special circumstances on eligibility

In finding the special circumstances true the jury 

necessarily found either that defendant was the actual killer or 

an aider and abettor who harbored an intent to kill, findings that 

would make defendant 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, and as we have 

previously held, the jury’s factual findings may not be relitigated 

in a section 1170.95 proceeding, but must first be challenged by 

way of habeas corpus or other available collateral attack. (People 

v. Nunez (2020) 57 Cal.App.5th 78, 84-87 (Nunez), review granted 
7

Jan. 13, 2021, S265918.) Thus the trial court did not err in 

denying the petition on this ground.

Defendant disagrees with Nunez and renews the argument 

made below that ineligibility under the statute was not 

established as a matter of law by true findings on the kidnapping 

and robbery special circumstance allegations because he was not 

a major participant who acted with reckless indifference to 

human life, the jury instructions were confusing, and the 

prosecution argument was misleading. The prosecutor argued at 

trial that the kidnapping and robbery special circumstances could 

be found true as to nonshooters without a finding of intent to kill 

if it was proven that the nonshooter was a major participant in 

the underlying felony and acted with a reckless disregard for 

human life. The robbery and kidnapping murder special 

circumstances require that a nonkiller defendant either have the

intent to kill or be a major participant and act with reckless 

indifference to human life. (§ 190.2, subds. (c) & (d).) Defendant 

represents that the jury was not instructed with regard to 

reckless disregard, citing the prosecutor’s statement to that effect 

in the section 1170.95 hearing.

Defendant relies on People v. York (2020) 54 Cal.App.5th 

250, review granted November 18, 2020, S264954, as authority 

for his contention that the special circumstances findings may be 

challenged in a section 1170.95 proceeding. We disagreed with 

York in Nunez, supra, 57 Cal.App.5th at page 93, review granted, 

but even if we agreed with it, York would be of no help to 

defendant. York held that a section 1170.95 petitioner could 

challenge a finding that he was a major participant who acted 

with reckless disregard for human life, if that finding was made 

before the California Supreme Court clarified the law on this 
8

point in People v. Banks (2015) 61 Cal.4th 788 and People v. 

Clark (2016) 63 Cal.4th 522. (York, supra, at pp. 258-263.) Here, 

in addition to the kidnapping and robbery special circumstances, 

the jury found true the multiple-murder special circumstance 

alleged under section 190.2, subdivision (a)(3). As applied to a 

defendant who was not the actual killer, the multiple-murder 

special circumstance requires that a defendant have the intent to

kill. (§ 190.2, subd. (c).) The intent to kill was also required for 

nonkillers at the time of defendant’s crimes. (See People v. 

Wader (1993) 5 Cal.4th 610, 638-639.) Defendant has not 

identified in York or other authority a holding that would permit 

challenging that finding in a section 1170.95 proceeding. Nor has 

defendant identified any change or clarification of that special 

circumstance since his conviction that might justify a challenge 

similar to the challenge permitted in York.

Defendant argues that the instructions and the prosecutor’s 

argument on the special circumstances were erroneous, confusing 

and contradictory such that they could not establish as a matter 

of law that he was ineligible for section 1170.95 relief. He asserts 

that there is no need to relitigate the facts underlying the jury’s 

special circumstances findings because this issue presents a pure 

question of law on undisputed facts in the record. We disagree. 

The instruction defendant finds confusing and erroneous was 

CALJIC No. 8.80.1. Defendant quotes the reporter’s transcript 

that to find the special circumstances true as to a nonkiller, the 

jury must find that the defendant, with the intent to kill, aided 

and abetted “any act or in the commission of the murder of the 

first degree.” (Italics added.) As written, CALJIC No. 8.80.1 

instructs that to find the special circumstances true as to a 

nonkiller, the jury must find that the defendant, with the intent 
9

to kill, aided and abetted “any actor in the commission of the 

murder in the first degree.” (Italics added.) The written 

instruction was in the record of conviction.

Defendant’s claim is not that CALJIC No. 8.80.1 is an 

erroneous statement of law but that it was read in such a way the 

jury could have misconstrued it, particularly in light of the 

prosecution argument. Defendant does not suggest how it can be 

determined as a matter of law that the court misspoke, and this 

was not a transcription error. Respondent observes that “[i]t is 

generally presumed that the jury was guided by the written 

instructions.” (People v. Davis (1995) 10 Cal.4th 463, 542.)

Moreover, the prosecutor’s argument regarding the 

multiple-murder special circumstance (§ 190.2, subd. (a)(3)) was 

correct and not misleading. She told the jury: “The non-shooter. 

We have to find that they have an intent to kill. That’s on the 

multiple murder.” Thus, even if we agreed that due to the 

prosecutor’s argument regarding the kidnapping and robbery 

special circumstances those true findings cannot render 

defendant ineligible as a matter of law, the multiple-murder 

finding would remain a valid basis. Section 1170.95 provides for 

the dismissal of special allegations and resentencing only after

the petition is granted and the murder conviction has been 

vacated. (See § 1170.95, subds. (c) & (d).) There is no provision 

in the statute for vacating one or more special circumstance 

allegations when the petitioner does not otherwise qualify for 

vacatur of the murder conviction.

We conclude that defendant’s section 1170.95 was not the 

appropriate vehicle to challenge the special circumstance findings 

and that since the findings have not been vacated by means of 

habeas corpus or other collateral attack, they remain a bar to 
10

defendant’s entitlement to relief under section 1170.95. Thus the 

trial court did not err in denying the petition.

DISPOSITION

The order denying the section 1170.95 petition is affirmed.

________________________

CHAVEZ, J.

I concur:

________________________

LUI, P. J.
People v. Berry, B303420

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

I agree with the majority that the trial court properly 

denied defendant Travis Wayne Berry’s petition for resentencing 

under Penal Code section 1170.95.1 In finding the special 

circumstances 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. Jones (2020) 56 Cal.App.5th 474, 482, review granted 

Jan. 27, 2021, S265854; People v. Allison (2020) 55 Cal.App.5th 

449, 457; People v. Gomez (2020) 52 Cal.App.5th 1, 14–17, review 

granted Oct. 14, 2020, S264033; People v. Galvan (2020) 52 

Cal.App.5th 1134, 1141–1143, review granted Oct. 14, 2020, 

S264284; but see People v. Torres (2020) 46 Cal.App.5th 1168, 

1179–1180, review granted June 24, 2020, S262011; People v. 

Smith (2020) 49 Cal.App.5th 85, 93–94, review granted July 22, 

2020, S262835; People v. York (2020) 54 Cal.App.5th 250, 258–

263 (York), review granted Nov. 18, 2020, S264954; People v. 

Harris (2021) 60 Cal.App.5th 939, 956–958, review granted 

Apr. 28, 2021, S267802; People v. Secrease (2021) 63 Cal.App.5th 

231, 236, 247, review granted June 30, 2021, S268862.)

And, the jury’s special circumstance findings are supported 

by substantial evidence through the prism of People v. Banks

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
2

(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 

Cal.4th 522 (Clark). (People v. Secrease, supra, 63 Cal.App.5th at 

p. 255.) In assessing whether substantial evidence supports a 

finding, we view the record in the light most favorable to that 

finding. (People v. Albillar (2010) 51 Cal.4th 47, 60.) That 

evaluation leads to the conclusion that the jury’s findings must 

stand—defendant was either a major participant who acted with 

reckless indifference to human life or an aider and abettor who 

harbored intent to kill.

As summarized in our prior opinion, defendant was an 

active participant in the crimes. He was present at codefendant 

Anthony Fitzpatrick’s (Fitzpatrick) house where the two victims 

were tied up, and codefendants had guns pointed at them. He 

and Fitzpatrick later left the house only to return with handcuffs 

with which they secured the victims’ hands behind their backs. 

Thereafter, defendant drove the victims’ car into the backyard, 

and defendant and his codefendants loaded the victims into the 

car. A codefendant drove the victims to the avocado field, and 

defendant and others followed in a Volkswagen. After the 

shootings, defendant and the others ran to the Volkswagen and 

drove away. (People v. Fitzpatrick (Sept. 19, 1995, B079323 

[nonpub. opn.], at pp. 2–4.) This evidence overwhelmingly 

demonstrates, even under the heightened standard set forth in 

Banks and Clark, that defendant was either an aider and abettor 

who acted with intent to kill or a major participant in the crimes 

who acted with reckless indifference to human life. Thus, relief 

under section 1170.95 is unavailable as a matter of law.

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 
3

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

way of habeas corpus or other available collateral attack.” (Maj. 

Opn., at p. 6.)

I also disagree with the majority’s discussion of York, 

supra, 54 Cal.App.5th at page 250. Citing pages 258 through 

263, the majority writes: “York held that a section 1170.95 

petitioner could challenge a finding that he was a major 

participant who acted with reckless disregard for human life, if 

that finding was made before” Banks and Clark. (Maj. Opn., at 

p. 7.) I read York differently. I read York as holding that “section 

1170.95 does not create a mechanism to challenge a special 

circumstance allegation.” (York, supra, at p. 260.) Rather, a 

defendant who files a section 1170.95 petition is challenging his 

murder conviction, and “[t]he fact that the special circumstance 

finding will be vacated as a result of a successful challenge to the 

murder conviction does not mean the special circumstance itself 

was challenged in the section 1170.95 proceeding.” (York, at 

p. 260.) 

__________________________, J.

ASHMANN-GERST