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Filed 7/31/23 P. v. Wahlert CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

JOSHUA BLAINE WAHLERT,

Defendant and Appellant.

E079621

(Super. Ct. No. RIF095477)

OPINION

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

Reversed and remanded with directions.

Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Donald 

W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
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I.

INTRODUCTION

Defendant and appellant Joshua Blaine Wahlert appeals the trial court’s order 

denying his petition to vacate his 2003 murder conviction and for resentencing under 

Penal Code

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section 1172.6 (formerly section 1170.95).

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The trial court relied on the 

jury’s robbery-kidnapping-murder special-circumstances findings to deny relief at the 

prima facie review stage. On appeal, defendant contends the trial court erred in denying 

his petition at the prima facie stage because the court failed to adhere to the procedures 

articulated in section 1172.6, misapplied the law and failed to appropriately specify the 

reasons for the denial. The People agree the order denying the petition should be 

reversed and the matter remanded to the trial court for further proceedings consistent with 

People v. Strong (2022) 13 Cal.5th 698 (Strong). We also agree. Accordingly, we 

reverse the trial court’s order denying the petition and remand the matter for further 

proceedings pursuant to section 1172.6.

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 All future statutory references are to the Penal Code.

2

 Effective June 30, 2022, the Legislature renumbered section 1170.95 as section

1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to section 

1172.6 for ease of reference unless otherwise indicated.
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II.

PROCEDURAL BACKGROUND

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On November 3, 2003, a third amended information was filed charging defendant 

with first degree murder (§ 187, subd. (a); count 1), being a felon in possession of a 

firearm (§ 12021, subd. (a)(1); count 2;), being a felon in possession of ammunition 

(§ 12316, subd. (b)(1); count 3), and brandishing a firearm (§ 417, subd. (a)(2); count 4).

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As to the murder offense, the information alleged two special circumstances that 

defendant committed the murder while engaged in the commission of a robbery and 

kidnapping (§ 190.2, subd. (a)(17)(A), (B)). Further, in connection with the murder, the 

information alleged that defendant personally discharged a firearm causing great bodily 

injury or death (§ 12022.53, subd. (d)) and personally used a knife (§ 12022, subd. 

(b)(1)).

On December 9, 2003, a jury found defendant guilty as charged on all counts and 

found true all enhancement allegations. He was sentenced to life without possibility of 

parole on count 1, plus a consecutive sentence of 25 years to life for the gun enhancement 

and an additional one year on the arming enhancement.

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 Because the factual background is not relevant to the legal issues raised in this 

appeal, we will not recount the details of defendant’s underlying offenses. Those details 

can be found in our partially published opinion from defendant’s direct prior appeal. 

(See People v. Wahlert, et al. (2005) 31 Cal.Rptr.3d 603; previously published at 130 

Cal.App.4th 709.)

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 The information also contained allegations against defendant’s codefendant, 

Tracey Garrison. Those allegations are omitted here.
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On June 24, 2005, we affirmed defendant’s convictions in a partially published 

opinion in People v. Wahlert, et al., supra, 31 Cal.Rptr.3d 603, but modified defendant’s 

sentence on counts 2, 3 and 4 by directing the trial court to stay defendant’s sentence on 

counts 3 and 4 pursuant to section 654. We also directed the court to correct certain 

clerical errors and ordered victim restitution to be paid jointly and severally. (Ibid.)

On March 7, 2022, defendant in propria persona filed a petition to vacate his 

murder conviction and for resentencing pursuant to former section 1170.95.

The trial court appointed counsel for defendant and heard the petition on August 

19, 2022. The prosecutor argued the petition should be denied due to the robberykidnapping-murder special circumstances findings and also pointed out that defendant 

was the actual killer who admitted shooting the victim in the head and slitting his throat. 

Defense counsel conceded but made an objection for the record. The trial court denied 

the petition based on the special circumstances findings. Defendant timely appealed.

III.

DISCUSSION

Defendant argues the trial court erred in denying his petition at the prima facie 

stage because the court failed to adhere to the procedures articulated in section 1172.6 

and misapplied the law. The People agree that under Strong, supra, 13 Cal.5th 698 the 

court’s order denying defendant’s petition for resentencing at the prima facie stage should 

be reversed and the matter remanded for further proceedings. Because his conviction 

predates our Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 
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(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), we concur that the trial court 

erred in denying defendant’s petition at the prima facie stage and remand for further 

proceedings.

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A. Legal Background

In 2015 and 2016, our Supreme Court decided Banks and Clark, respectively, 

which discuss when section 190.2 authorizes a special circumstance life without parole 

sentence for a felony-murder defendant convicted as an aider and abettor. (Banks, supra, 

61 Cal.4th at p. 794; Clark, supra, 63 Cal.4th at pp. 609-610.) Those decisions held that 

participation in an armed robbery, on its own, is insufficient to support a finding the 

defendant acted with reckless indifference to human life. Instead, the factfinder must 

consider “the defendant’s personal role in the crimes leading to the victim’s death and 

weigh the defendant’s individual responsibility for the loss of life, not just his or her 

vicarious responsibility for the underlying crime.” (Banks, supra, at p. 801, italics 

omitted.) “The defendant must be aware of and willingly involved in the violent manner 

in which the particular offense is committed,” thereby “demonstrating reckless 

indifference to the significant risk of death his or her actions create.” (Ibid., italics 

added.) Banks provided a non-exhaustive list of factors to consider when determining 

whether the defendant was a major participant in the underlying felony. (Id. at p. 803.) 

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 Since we are remanding the matter for further proceedings pursuant to section

1172.6 in light of Strong, we need not address defendant’s specific contentions.
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And Clark offered a similar list for determining whether the defendant acted with 

reckless indifference to human life. (Clark, supra, at pp. 619-623.)

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “‘to amend 

the felony murder rule and the natural and probable consequences doctrine, as it relates to 

murder, to ensure that murder liability is not imposed on a person who is not the actual 

killer, did not act with the intent to kill, or was not a major participant in the underlying 

felony who acted with reckless indifference to human life.’” (People v. Gentile (2020) 10 

Cal.5th 830, 846-847; see Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature 

accomplished this by amending sections 188 and 189. Effective January 1, 2022, Senate 

Bill No. 775 expanded the scope of those changes to encompass, among other things, 

murder convictions “under the natural and probable consequences doctrine or other 

theory under which malice is imputed to a person based solely on that person’s 

participation in a crime.” (§ 1172.6, subd. (a), as amended by Stats. 2021, ch. 551, § 2.)

Senate Bill No. 1437 also created a procedure for offenders previously convicted 

of felony murder or murder under the natural and probable consequences doctrine to seek 

retroactive relief if they could no longer be convicted of murder under the new law. 

(§ 1172.6, subd. (a); People v. Gentile, supra, 10 Cal.5th at p. 843; People v. Lewis

(2021) 11 Cal.5th 952, 959 (Lewis); Strong, supra, 13 Cal.5th at p. 708.) “[T]he process 

begins with the filing of a petition containing a declaration that all requirements for 

eligibility are met [citation], including that ‘[t]he petitioner could not presently be 

convicted of murder or attempted murder because of changes to . . . [s]ection 188 or 189 
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made effective January 1, 2019’ . . . .” (Strong, supra, at p. 708.) “When the trial court 

receives a petition containing the necessary declaration and other required information, 

the court must evaluate the petition ‘to determine whether the petitioner has made a prima 

facie case for relief.’ [Citations.] If the petition and record in the case establish 

conclusively that the defendant is ineligible for relief, the trial court may dismiss the 

petition.” (Ibid.)

In Lewis, supra, 11 Cal.5th 952, our Supreme Court explained the trial court’s role

when faced with a section 1172.6 petition: Petitioners who request counsel “are entitled 

to the appointment of counsel upon the filing of a facially sufficient petition . . . .” (Id. at

p. 957.) “[O]nly after the appointment of counsel and the opportunity for briefing may 

the superior court consider the record of conviction to determine whether ‘the petitioner 

makes a prima facie showing that he or she is entitled to relief.’” (Ibid., italics omitted; 

see id. at p. 966 [“a complying petition is filed; the court appoints counsel, if requested; 

the issue is briefed; and then the court makes [its] prima facie determination”].) The 

court’s “prima facie inquiry . . . is limited. . . . ‘“[T]he court takes petitioner’s factual 

allegations as true and makes a preliminary assessment regarding whether the petitioner 

would be entitled to relief if his or her factual allegations were proved. If so, the court 

must issue an order to show cause.”’ [Citation.] ‘[A] court should not reject the 

petitioner’s factual allegations on credibility grounds without first conducting an 

evidentiary hearing.’” (Id. at p. 971.) Importantly, “[i]n reviewing any part of the record 

of conviction at this preliminary juncture, a trial court should not engage in ‘factfinding 
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involving the weighing of evidence or the exercise of discretion.’” (Id. at p. 972.) “[T]he 

‘prima facie bar was intentionally and correctly set very low.’” (Ibid.)

If a petitioner has made a prima facie showing of entitlement to relief, “‘the court 

shall issue an order to show cause.’” (Strong, supra, 13 Cal.5th at p. 708.) Once the 

court determines that a defendant has made a prima facie showing, it “must [then] hold an 

evidentiary hearing at which the prosecution bears the burden of proving, ‘beyond a 

reasonable doubt, that the petitioner is guilty of murder or attempted murder’ under state 

law as amended by Senate Bill [No.] 1437. [Citation.] ‘A finding that there is substantial 

evidence to support a conviction for murder, attempted murder, or manslaughter is 

insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for 

resentencing.’ [Citation.] ‘If the prosecution fails to sustain its burden of proof, the prior 

conviction, and any allegations and enhancements attached to the conviction, shall be 

vacated and the petitioner shall be resentenced on the remaining charges.’” (Strong, 

supra, at p. 709; accord, Lewis, supra, 11 Cal.5th at p. 960.) “Senate Bill [No.] 1437 

relief is unavailable if the defendant was either the actual killer, acted with the intent to 

kill, or ‘was a major participant in the underlying felony and acted with reckless 

indifference to human life . . . .’” (Strong, supra, at p. 710.)

In Senate Bill No. 775, the Legislature amended the language of section 1172.6,

codifying Lewis, supra, 11 Cal.5th 952, expanding the scope of the petitioning process

and clarifying some of the procedural requirements. (Stats. 2021, ch. 551, § 2.)
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B. Standard of Review

In this case, the trial court denied defendant’s petition at the prima facie review 

stage under section 1172.6, subdivision (c). A denial at this stage is appropriate only if 

the record of conviction demonstrates that the petitioner is ineligible for relief as a matter 

of law. (Lewis, supra, 11 Cal.5th at p. 960.) This is a purely legal conclusion, which we 

review de novo. (See id. at p. 961.)

C. Analysis

Our Supreme Court recently made clear that when, as here, a defendant’s case 

“was tried before both Banks and Clark, the special circumstance findings do not 

preclude him from making out a prima facie case for resentencing under section 1172.6.” 

(Strong, supra, 13 Cal.5th at p. 721.) “This is true even if the trial evidence would have 

been sufficient to support the findings under Banks and Clark.” (Id. at p. 710.) The 

Strong court noted that the Banks and Clark cases “both substantially clarified the law 

governing findings under . . . section 190.2, subdivision (d).” (Strong, supra, at p. 706.) 

The court explained that a pre-Banks and Clark special circumstance finding does not 

negate the showing that the petitioner could not presently be convicted of murder or 

attempted murder because of changes to section 188 or 189 “because the finding alone 

does not establish that the petitioner is in a class of defendants who would still be viewed 

as liable for murder under the current understanding of the major participant and reckless 

indifference requirements.” (Strong, supra, at pp. 717-718.)
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Noting the differences between pre- and post-Banks and Clark special 

circumstance requirements, the Supreme Court observed the changes may “have altered 

what evidence defense counsel would have sought to introduce[,] . . . might have 

fundamentally altered trial strategies,” and may have affected what jury instructions were 

requested or given. (Strong, supra, 13 Cal.5th at p. 719.) “An after-the-fact court review 

of a pre-Banks and Clark record does not account for all these differences. . . . And as

the Legislature has made explicit in a recent amendment to the predecessor to section

1172.6, a court determination that substantial evidence supports a homicide conviction is 

not a basis for denying resentencing after an evidentiary hearing. [Citation.] Nor, then, 

is it a basis for denying a petitioner the opportunity to have an evidentiary hearing in the 

first place.” (Id. at p. 720.) Thus, neither “the jury’s pre-Banks and Clark findings nor a 

court’s later sufficiency of the 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.” (Id. at p.

720.)

Here, the jury’s felony-murder special circumstances findings were made before 

our high court decided Banks and Clark. And the trial court found defendant ineligible 

for relief based on the attendant special circumstances findings that the murder was 

committed in the commission of a robbery and kidnapping. Under Strong, the finding 

does not categorically render defendant ineligible for resentencing. (Strong, supra, 13 

Cal.5th at p. 720.) Furthermore, a defendant’s prima facie case is not barred even if the 
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trial evidence was sufficient to support the special circumstances findings after Banks and 

Clark. (Strong, supra, at p. 710; Lewis, supra, 11 Cal.5th at p. 972.) We therefore vacate 

the trial court’s order and remand the matter for further proceedings.

IV.

DISPOSITION

The trial court’s order denying defendant’s section 1172.6 petition is reversed. 

The matter is remanded for further proceedings consistent with Strong, Lewis, and section

1172.6.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

FIELDS

J.