Filed 2/16/21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

CAL EB JAMES HARRIS,

Defendant and Appellant. B 300410

(Los A ngeles County Super. Ct. No. YA023031

- 02 )

APPEAL from an o r der of the Superior Court of
Los Angeles County, Laura C. Ellison, Judge. Reversed and
remanded with directions.
Center for Juvenile La w and Policy, Loyola Law School and Sean K. Kennedy for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters , Chief Assistant Attorney General, Susan Sullivan Pithey , Senior Assistant Attorney General, Idan Ivri and Yun K. Lee , Deputy Attorney s General, for Plaintiff and Respondent.

_________________________2 After two mistrials a jury in January 1997 found Caleb
James Harris guilty on two counts o f first degree murder (Pen. Code, § 187, subd. (a)) 1 and one count of arson (§ 451, subd. (a)) ; found true special circumstance allegations the murders had been committed while Harris was engaged in the crime of arson (§ 190.2, subd. (a)(17)) and by means of a destructive device (§ 190.2, subd. (a)(6)) ; and also found true the multiple

- murder special

- c ircumstance allegation (§ 190.2, subd

. (a) (3)). Harris, who was 17 years old at the time of his arrest, was sentenced to
concurrent indeterminate terms of 25 years to life for the murders plus a consecutive term of seven years for arson. We affirmed the judgment on appeal. ( People v. Harris (De c. 17, 1998, B118894) [nonpub. opn.].) On February 13, 2019 Harris, represented by counsel, petitioned for resentencing pursuant to newly enacted
section 1170.95. After receiving a response from the prosecutor
and a reply from Harris’s counsel and hearin g argument , the superior court denied the petition . On appeal Harris advances three primary arguments: T he court improperly engaged in factfinding without issuing an order to show cause and holding an evidentiary hearing ; the jury’s arson

- murder special

circumstance finding does not necessarily preclude relief in light of the Supreme Court’s subsequent clarification in People v.
Banks (2015) 61 Cal.4th 788 ( Banks ) and People v. Clark (2016)
63 Cal.4 t h 522 ( Clark ) of the requirements for finding a felony

m urder special

- circumstance allegation true ; and the record of conviction in this case does not establish his ineligibility for resentencing as a matter of law. We agree, reverse the superior

1 Statutory references are to this code.3

court’s ruling and remand the matter with directions to issue an order to show cause and to proceed consistently with
section 1170.95, subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND

1. Harris’s Murder Convictions

a. The firebombing Valerie Rivers confronted Dwayne Moore on January 28,
1995 about an incident in her apartment two days earlier wh en Rivers, i n labor , was waiting for her mother to take her to the hospital . As they argued on the street outside Rivers’s apartment building , Damone Dellano, Rivers’s boyfriend, joined them and pointed a gun at Moore. Moore began to cry and asked Rivers, “You gonna let him do this to me?” Dellano put down the gun and went back into the apartment with Rivers.
Later t hat afternoon Moore went to the apartment where
E ric Bowden was staying; Harris was also present. Bowde n told
detectives he saw Moore and Harris fill beer bottles with gasoline and put cut

- up bedsheets into the bottles

. Bowden had heard Moore say he was “going to get the dud e back,” referring to
Dellano. During his police interview Bowden said Harris was “pumping up” Moore to get revenge against Dellano. Moore and Harris left the apartment complex around 8:00 p.m. A ccording to

a second witness, Ernest Bowman, when Moore and Harris left the apartment complex , they were carrying Molotov cocktails.
Around 8:30 that evening Rivers heard people talking outside her apartment. She recognized Moore’s voice. A speaker
she could not identify said, “If the home girl is cool and she got kids, then I wouldn’t fuck with her. But if she

— if she’s not, then
fuck it. Whatever.” Rivers heard Moore respond , “I ain’t going
out like that . Meet me back here in 30 minutes. ” Less than4

30 minutes later, Rivers heard Moore call out

, “Valerie,” followed by a “ball of fire” coming through her bedroom window . The
firebomb hit Rivers in the face. The bedroom was quickly engulfed in flames. Robert Alcaraz, Jr. testified he was waiting outside for a friend when he saw two young Black men in dark, lo o s e clothing outside Rivers’s apartment lighting a rag and throw an object
thro ugh the window. Alcaraz saw a flame and heard the sound of breaking glass. The two men ran off. Neither Alcaraz nor the
two individuals who were with him identified Harris as one of the two men outside Rivers’s apartment building at the time of the
fire bombing. One of the witnesses identified Moore. The Hawthorne Fire Department arrived at the scene at approximately 9:15 p.m. The firefighters pulled Rivers, her newborn daughter and her young son from the burning apartment. Rivers suffered severe bur ns and was hospitalized for two months. Both her young children died from their burns

. Moore and Harris returned together to Bowden’s apartment that evening around 10:00 p.m. Harris told Bowden he went over to Rivers’s apartment but had not thrown the
Mo lotov cocktails.

b. Harris’s three trials Harris and Moore were charged by information in June 1995 with the first degree murder of Rivers’s two children, the attempted murder of Rivers and arson causing great bodily injury. The information further al leged as special circumstances that the murders were committed by means of a destructive device, were committed during the commission of arson and constituted multiple murders. At trial Bowden recanted his prior statements implicating Harris. Bowden expl ained he had simply5

repeated what the police told him and had lied out of fear because the investigating officer said he was a suspect. The prosecutor impeached Bowden with his statements to the police. Th e first trial ended in a mistrial when the jury w as unable to reach a
verdict as to either defendant and declared itself hopelessly
deadlocked after 10 days of deliberations. At the retrial Moore was convicted on all four charges. The second jury was unable to reach a verdict as to any of the charges

a gainst Harris, however

, and another mistrial was declared as to
him

. Bowden was unavailable as a witness for Harris’s third
trial ( as he had been for the second trial ); so the People read his testimony from the first trial, including his statement s to th e police identifying Harris as one of the individuals making the
Molotov cocktails . The jury also heard Bowden’s subsequent repudiation of those statements as fabrications. Bowman
testified two individuals had made Molotov cocktails in the laundry room b ehind the apartment complex and said he saw Moore and Harris carry the Molotov cocktails to a parked van and drive away together

. However, Bowman answer ed inconsistently to repeated questions whether Harris had been one of the men actually making the Molo tov cocktails

— stating he was one of the bombmakers on direct examination; but conceding on

cross

- examination Harris had just been standing in the doorway to the laundry room while two other men made the Molotov
cocktails. After three days of deliberation the jury found Harris not guilty of attempted murder, which the prosecutor acknowledged required proof of intent to kill, but guilty on both counts of first degree murder and of arson causing great bodily6

injury. The jury also found true all the charged s pecial
circumstances.

c. Denial of Harris’s new trial motion Harris, represented by new counsel, moved for a new trial, challenging the credibility of Bowman’s testimony and arguing the evidence was insufficient to prove Harris had aided and
abetted eit her arson or murder. The motion also asserte d Harris’s trial counsel, who presented no defense witnesses, provid ed constitutionally ineffective representation. The court
denied the motion

, observ ing , “I agree with the jury. I thought [Bowman] was credib le. I have no problem with it

. I had no problem with the decision. I think it was a proper decision. I would have had a problem with the case if the jury had based their decision on any kind of finding by innuendo that this
defendant intended these bab ies be killed or injured, or the woman. But there was nothing in that. But my conclusion, from what the jury came up with, is that he basically was an aider and abettor, as far as the arson is concerned. And that testimony

came out

. And there wa s nothi ng wrong with the verdict.”

d. The trial court’s comments at sentencing
T he prosecutor asked the court to sentence Harris to consecutive state prison terms of life without parole for the murder of the two young children

. The trial court instead

sente nced Harris to concurrent indeterminate terms of 25 years
to life

, plus seven years for the aggravated arson . Explaining its decision, the court stated

, “I’ve considered the fact that both the jury and I personally feel that the defendant did not intend t he happening that did occur. I know the People tried to show that the defendant may have thrown one of them. But there’s just no evidence of that at all. I think that, because of the nature of his7

participation in this matter, that life without possibil ity of parole would not be the proper sentence.” 2

2. The Section 1170.95 Petition Harris, represented by Loyola Law School’s Center for Juvenile Law and Policy , petitioned for resentencing pursuant to section 1170.95 on February 13, 2019. In a declaratio n Harris
averred he had been prosecuted and convicted on two counts of first degree murder under a theory of felony murder and the natural and probable consequences doctrine during his third jury
trial . He further declared he could not now be convicted on either count because he was not the actual killer of the victims, had not aided or assisted the actual killer with the intent to kill, and was

n either a major participant in the underlying felony nor had
acted with reckless indifference to human life duri ng the course of that felony. In an accompanying memorandum Harris stated that the prosecutor had proceeded at his third trial primarily on a felony

murder theory, arguing Harris had assisted Moore in making and transporting the firebombs to Rivers’s apa rtment building. Pointing to the finding he was not guilty of attempted murder, which requires proof of an intent to kill, Harris asserted there
was insufficient evidence he was either the actual killer of the

2 On appeal Harris did not challenge the sufficiency of the evidence to co nvict him of special

- circumstance felony

- murder

, arguing only that defense counsel had provided ineffective assistance by failing to call several witnesses who had testified at the earlier trials a nd that the $32,000 restitution fine had been imposed witho ut sufficient notice or adequate factual support and , in any event, should have been subject to a right of offset for payments made by Moore. We rejected those argument s and affirmed the judgment. ( People v. Harris

, supra , B118894 .)8

children or had acted with an intent to kill when he assisted Moore. Relying on the Supreme Court’s analysis in Banks

, supra , 61 Cal.4th 788 and Clark

, supra , 63 Cal.4 t h 522

, and emphasizing he was a juvenile at the time of the firebombing, Harris also argued that under the current requirements for proof of a felony

- murder special

- circumstance allegation, he had not been a major participant in the arson and had not acted with a
reckless indifference to human life.
The District Attorney filed a response to Harris’s petition

, contending the resentencin g provisions in section 1170.95 are unconstitutional

— an argument not repeated by the Attorney General on appeal

— and, in any event, Harris was ineligible for
relief because he could still be convicted under current law of first or second degree murder. The opposition memorandum analyzed
the evidence of Harris’s involvement in the crimes under the
factors identified in Banks and Clark . Our opinion affirming
Harris’s convict ion s was attached as an exhibit to the District Attorney’s response.
Harris filed a reply to the District Attorney’s opposition memorandum, which addressed both the constitutional issues and the argument he was a major participant who had acted with
reckless indifference to human life under Banks and Clark

. 3. The Trial Court’s Rulin g The trial court denied Harris’s petition after hearing argument from counsel at a hearing on August 1, 2019 , ruling, “[T]he facts show that Mr. Harris was a major participant and acting with reckless disregard and did act with implied malice. ” 3

3 Judge William R . Hollingsworth, Jr., who presided at Harris’s third trial, retired a number of years before Harris filed9 Explaini ng its ruling

, the court stated, “The facts show that
Mr. Harris participated with Mr. Moore in filling beer bottles with gasoline, cutting

- up bed sheets, and putting them into bottles with the stated purpose of going to the apartment, and getting back or getting somebody named Del l ano back, that is
Ms. Rivers’ s boyfriend, or was Ms. Rivers’ s boyfriend at the time. “The facts indicate that Mr. Harris was pumping Moore up,
which was his co

- defendant, and telling him he should get him
back for what he had d one. The facts indicate that Mr. Harris, along with Mr. Moore, went to an apartment, and changed into dark clothing, and that the two left together. “The testimony was given also that Harris had told Bo[w]den that he had gone over to the apartment in qu estion. He also said he did not throw the Molotov cocktails. And again, the People are not suggesting that the record indicates that it was
Mr. Harris who actually threw the Molotov cocktails. From the testimony, he not only prepared the incendiary devi ces, he did so with the intent to hurt somebody, to get somebody back. That he went to the location where the cocktails, Molotov cocktails were thrown into an apartment, and as we all know the end of the result of that was two young children were killed. The mother was severely injured.

“ As a result of that testimony, the jury did find him guilty of the crime of arson. He was found guilty of preparing whatever incendiary devices were needed to do the arson. He was found guilty of murder of the two chi ldren. There was more than

his petition under section 1170.95. Judge Laura C. Ellison ruled on the petition

.10

sufficient evidence to find that he was an aider and abettor. So I am going to deny his request to be resentenced.” 4
CONTENTIONS The Attorney General concedes the superior court erred to the extent it engaged in factfinding ra ther than evaluating the
record of conviction solely to determine whether it established Harris’s ineligibility f

or relief under section 1170.95 as a matter of law. 5 However, the Attorney General contends the court correctly ruled Harris ineligible as a m atter of law based on the jury’s felony

- murder special

- circumstance finding. Harris argues

a pre

- Banks / Clark felony

- murder special

- circumstance finding does not necessarily preclude relief ; the superior court improperly
relied on the factual summary in th is court’s opinion affirming
Harris’s conviction ; and evidentiary conflicts at trial , as well as the trial court’s findings at Harris’ s sentencing hearing

, we re sufficient to require the superior court to issue an order to show
cause under section 1170.95, subdivision (c).
DISCUSSION

1. Senate Bill No. 1437 and the Section 1170.95 Petition Procedure Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, eliminated the natural and probable consequ ences doctrine as a basis for finding a defendant guilty of murder ( People v. Gentile (2020)

4 The superior court did not address the District Attorney’s

cons titutional argument s

.

5 In light of this concession the Attorney General does not

argue Harris was ineligible for relief based on the superior court’s finding he had acted with implied malice.11

10 Cal.5th 830, 8 42

- 843 ( Gentile )) 6 and significantly limited the felony

- murder exception to the malice requirement for murder. (See, e.g., People v. Rodriguez (2 020) 58 Cal.App.5th 227, 236; People v. Bascomb (2020) 55 Cal.App.5th 1077, 1081.) 7 Senate Bill 1437 also authorized, through new
section 1170.95, an individual convicted of felony murder or murder under a natural and probable consequences theory to peti tion the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder because of Senate Bill 1437’s changes to the definition of the crime. (See Gentile

, supra , 10 Cal.5th at

p. 859 .) The petition must include a declaration by the petitioner

6 New section 188, subdivision (a)(3), provides, “ Except as stated in subdivision (e) of Section 189 [governing felony murder], in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime. ” By requiring proof of malice except in cases of felony murder, Senate Bill 1437 thus eliminated natural and probable consequences liability for murder “regardless of degree.” ( Gentile

, supra , 10 Cal.5th at pp. 848, 851.)

7 New section 189, subdivisi on (e)

— the exception to section 188, subdivision (a)(3)’s malice requirement for murder

— permits a murder conviction for a death that occurred during the commission of certain serious felonies, absen t proof of malice, when other specified circumstances rela ting to the defendant’s individual culpability have been proved: The person was the actual killer; the person was not the actual killer, but, with the intent to kill, aided or abetted the actual killer in the commission of first degree murder; or the pers on was “a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.”12

that he or she is eligible for relief under section 1170.95 and a statement whether the petitioner requests the appointment of counsel. (§ 1170.95, subd. (b)(1); see People v. Verdug o (2020)

44 Cal.App.5th 320, 326

- 327 ( Verdugo ), review granted Mar. 18, 2020, S260493.) If the petition contains all required information,
section 1170.95, subdivision (c), prescribes a process for the court
to determine whether an order to show cause should issue : “The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent t he petitioner. The prosecutor shall file and serve a response .

. . and the petitioner may file and serve a reply. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.” The exact nature of this procedure is the focus of disagreement between People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted March 18, 2020, S260598, Verdugo

, supra , 44 Cal.App.5th 320, review granted, and the many subsequent cases that have ag reed with their interpretation of section 1170.95, subdivision (c), 8 on the one hand, and People v. Cooper (2020) 54 Cal.App.5th 106, review granted November 10, 2020, S264684, on the other.

8 See, e.g., People v. Soto (2020) 51 Cal.App.5th 1043, 105 4
, review granted Sept ember 23, 2020, S 263939 ; People v. Drayton (2020) 47 Cal.App.5th 965, 975; People v. Torres (2020) 46 Cal.App.5th 1168, 1177, review granted June 24, 2020, S262011.13 In Verdugo we held subdivision (c) prescribes a two

- step

proces s for the court to determine if an order to show cause
should issue

, “ one made before any briefing to determine whether the petitioner has made a prima facie showing he or she falls
within section 1170.95

— that is, that the petitioner may be eligible for re lief

— and a second after briefing by both sides to determine whether the petitioner has made a prima facie showing he or she is entitled to relief.” ( Verdugo

, supra, 44 Cal.App.5th at p. 328 , review granted .)
As to t he first step, we explained, “[B] ecaus e a petitioner is not eligible for relief under section 1170.95 unless he or she was convicted of first or second degree murder based on a charging document that permitted the prosecution to proceed under a theory of felony murder or murder under the natur al and probable consequences doc trine (§ 1170.95, subd. (a)(1), (2)), the

court must at least examine the complaint, information or
indictment filed against the petitioner; the verdict form or factual basis documentation for a negotiated plea; and the abst ract of judgment. Based on a threshold review of these documents, the

court can dismiss any petition filed by an individual who was not actually convicted of first or second degree murder. The record of
conviction might also include other information tha t establishes
the petitioner is ineligible for relief as a matter of law because he

or she was convicted on a ground that remains valid notwithstanding Senate Bill 1437 ’ s amendments t o sections 188
and 189 .” ( Verdugo

, supra , 44 Cal.App.5th at pp. 329

- 330, review granted.) A petitioner is entitled to appointment of counsel, we held, only if the superior court does not determine he or she is ineligible for relief as a matter of law at this first subdivision (c)14

prima facie review. ( Verdugo

, at p. 332; acco rd, People v. Lewis

, supra , 43 Cal.App.5th at p. 1140, review granted.)
The court in People v. Cooper

, supra , 54 Cal.App.5th 106
, review granted, disagreed that section 1170.95, subdivision (c), contemplate s two separate steps and held a petitioner is ent itled to counsel upon the filing of a facially sufficient petition for relief that requests counsel be appointed. ( Cooper , at p. 123.) In the Cooper court’s view, section 1170.95 , subdivision (c) ’ s first
sentence is simply “a topic sentence summarizing t he trial court ’ s task before issuing an order to show cause, and the following

sentences

. . . specify the procedure in undertaking that task,” meaning there is only one prima facie review before an order to
show cause issues. ( Cooper

, at p. 118 .) Thus, once a petitioner files a facially sufficie nt petition requesting counsel, the superior court must appoint counsel before performing any review under
section 1170.95 , subdivision (c). ( Cooper , at p. 123.) We do not find persuasive the Cooper court’s int erpretation of section 1170.95, subdivision (c). Unless we receive different instructions from the Supreme Court, we adhere to the analysis
set forth in Verdugo and the cases that have followed it. 9 Once the order to show cause issues, the court must hol d a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any

9 The Supreme Court will likely resolve this disagreement in People v. Lewis

, S260598, in which briefing a nd argument have been limited to the following issues: “(1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2) When doe s the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)?”15

remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo

, supra , 44 Cal.App.5th at p. 327 , review granted

. ) At the hearing the prosecution has the burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez

, supra , 58 C al.App.5th at p. 230 ; People v. Lopez (2020) 56 Cal.App.5th 936, 949 , review gra nted
Feb. 10, 2021, S265974 ; but see People v. Duke (2020)
55 Cal.App.5th 113, 123

, review granted Jan. 13, 2021, S265309 [prosecutor must only prove a reasonable jury could find the defendant guilty of murder with the requisite mental state; “[t]his is es sentially identical to the standard of substantial evidence”].) 10 The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence to meet their respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898

- 899, review granted Aug. 12, 2020, S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981; People v. Lewis

, supra , 43 Cal.App.5th at p. 1136, review granted .)

10 In granting review in People v. Duke , S265309, the Supreme Court limited the issue to be briefed and argued to the following: “ Can the People meet their burd en o f establishing a petitioner’ s ineligibility for resentencing under

. . . section 1170.95, subdivision (d)(3) by presenting substantial evidence of the petitioner’s liability for murder under

. . . sections 188 and 189 as amended by Senate Bill No. 1437 (St ats. 2018, ch. 1015), or must the People prove every element of liability for murder under the amended statutes beyond a reasonable doubt?”16 2. The Superior Court Properly Considered This Court’s Prior Opinion Affirming Harris’s Convictions

This court in Verdugo

, supra , 44 Cal.App.5th at page 333
, review granted

, explained , “A court of appeal opinion, whether or not published is part of the appellant’s record of conviction” and held it was proper for the superior court to conside r the information in an opinion affirming the petitioner’s murder conviction on direct appeal “in determining whether he had made a prima facie showing of eligibility for relief under
section 1170.95 or whether he was ineligible for relief as a matter
of l aw.” (Accord, People v. Bascomb

, supra , 55 Cal.App.5th at

p. 1081 ; People v. Soto (2020) 51 Cal.App.5th 1043, 1055, review granted Sept. 23, 2020, S263939 ; People v. Lewis

, supra , 43 Cal.App.5th at p. 1136, fn. 7 , review granted ; see People v.
Woodell (19 98) 17 Cal.4th 448, 455 [appellate court record, including the appellate opinion, properly considered part of the
record of conviction to establish the basis for an out

- of

- state felony conviction and determine if it qualified as a strike under
California l aw].)
Harris’s citation to Gilmore v. Superior Court (1991)
230 Cal.App.3d 416 to argue factual statements in an appellate opinion are inadmissible hearsay and not properly considered in determining eligibility for relief under section 1170.95 is misplaced

. Evaluating the evidence before the trial court on a summary judgment motion, the court of appeal in Gilmore held only that the description of events in an appellate opinion from a criminal case is inadmissible hearsay in a civil action for wrongful deat h . ( Id. at p. 418.) In post conviction proceedings, however, statements from prior appellate opinions are admissible as reliable hearsay even if they would not be admissible at trial.17

( See, e.g., People v. Guilford (2014) 228 Cal.App.4th 651, 660

- 661 [ pr oper to rely on prior appellate opinion when ruling on
section 1170.126 resentencing petition] ; see also People v. Saelee (2018) 28 Cal.App.5th 744, 756 [reliab le hearsay may be considered in deciding Proposition 64 petition to recall felony
sentence for a marijuana conviction and to resentence as a misdemeanor]; People v. Sledge (2017) 7 Cal.App.5th 1089, 1094

- 1095 [ reliable hearsay may be considered at eligibility hearing
under Prop osition 47 ].) The rules of evidence governing
section 1170.95 proceedings “should be no different than those applied at other analogous postconviction resentencing proceedings .” ( People v. Williams (2020) 57 Cal.App.5th 652, 661,
petn

. for review pending, petn. f iled Dec. 23, 2020 .)

3

. Harris May Challenge the Special Circums tance Finding in a Section 1170.95 Petition

a. Banks and Clark Section 189, subdivision (e), which permits a felony

- murder conviction only when specified facts relating to the defendant’s individual culpability have been proved, incorporates in
subdivisi on (e)(3) the same requirements for proving the
defendant acted with reckless indifference to human life as a major participant in one of the identified serious felonies as necessary for a felony

- murder special

- circumstance finding under section 190.2, sub division (d). 11 The factors properly considered

11 Enacted in 1990, section 190.2, subdivision (d), provides that “every person, not the actual killer, who, with r eckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or18

in assessing such a felony

- murder special

- circumstance finding
were clarified in Banks

, supra , 61 Cal.4th 788 and Clark

, supra , 63 Cal.4 t h 522 , nearly two decades after Harris’s conviction. (See In re Scoggi ns (2020) 9 Cal.5th 667, 671; In re Miller (2017)

14 Cal.App.5th 960, 97 7

- 978.)
I n Banks the Supreme Court identified factors courts should consider in determining whether a defendant was a “major participant” under section 190.2, subdivision (d): “Wha t role did the defendant have in planning the criminal enterprise
that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of th e crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular r ole in
the death? What did the defendant do after lethal force was used?” ( Banks

, supra , 61 Cal.4th at p. 803, fn. omitted.)
In both Banks and Clark the Court explained that, to
determine whether the defendant acted with reckless indifference, courts mus t “look to whether a defendant has ‘“knowingly engag[ed] in criminal activities known to carry a grave risk of death.”’” ( Banks

, supra , 61 Cal.4th at p. 801.)

persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.” (See People v. Law (2020) 48 Cal.App.5th 811, 822, review granted July 8, 2020, S262490 .)19

Specifically, “[t]he defendant must be aware of and willingly
involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create.” ( Ibid .) As further refined
in Clark

, “ reckless indifference ” “encompasses both subjective and objective elements. The subjective element is the defendant ’ s conscious disregard of risks known to him or her.

. . . [R] ecklessness is also determined by an objective standard, namely what ‘ a law

- abiding person would observe in the actor ’ s situation. ’ ” ( Clark

, supra , 63 Cal.4th at p. 617.) The Supreme Court in Clark set out a series of considerations relevant to determining whether a defendant had
acted with reckless indifference to human life (with some obvious overlap with the major

- participant factors specified in Ba nks )

. Among others, w as the defendant aware that guns would be used ; d id the defendant himself or herself use a gun ; d id the defendant have an opportunity to reduce the overall risk of violence during the felony or to aid the victim ; d id the defendant kno w his or her cohorts were likely to use lethal force? ( Clark

, supra , 63 Cal.4th at pp. 618

- 622.) S pecifically with respect to the facts before it,
the Clark Court emphasized, “[W] hile the fact that a robbery
involves a gun is a factor beyond the bare sta tutory requirements
for first degree robbery felony murder, this mere fact, on its own and with nothing more presented, is not sufficient to support

a finding of reckless indifference to human life for the felony

murder aider and abettor special circumstan ce .” ( Id . at p. 618.) 12

12 The Supreme Court in Banks and Clark did not expressly require that juries be instructed on those clarifications. Optional language describing the Banks / Clark factors was added to the CALCRIM instructions ; and the bench notes expressly direct the20 b. The jury’s pre

- Banks / Clark felony

- murder special

circumstance finding does not preclude relief as a matter of law

The felony

- murder special

- circumstance allegations required the jury to find that Harris had acted with reckless
i ndifference to human life and as a major participant in the arson that resulted in the death of Rivers’s two children (§ 190.2,
subds. (a)(17), (d) ). The Attorney General argues the jury’s finding precludes relief under section 1170.95 as a matter of law
and insists any challenge to the evidentiary support for th at finding based on Banks and Clark had to be made by petition for
writ of habeas corpus

. Although t his position has been upheld in several court of appeal decisions, we reject it, as have other

c ourts, as contrary to the language and intent of section 1170.95.

trial court to determine whether the Banks and Clark factors “need be given.” (See CALCRIM No. 703.) Accordingly, it is not necessarily the case that a post

- Banks / Clark jury will have received instructions that differ from those given to a pre

Banks / Clark jury that made a major participant/reckless indifference finding. Nonetheless, posttrial, appellate and postconviction review of a felony

- murder special

- circumstance finding after Banks and Clark must consider the factors, issues and questions posited in those cases. (See, e.g., In re Scoggins

, supra , 9 Cal.5th at p. 671 [habeas petitioner’s conduct did not support a find ing of reckless indifference to human life under Banks and Clark notwithstanding affirmance on direct appeal of

a pre

- Banks and Clark robbery

- murder special

- circumstance finding]; In re Bennett (2018) 26 Cal.App.5th 1002 [granting habeas relief and vacatin g robbery

- murder special

- circumstance finding in light of Banks and Clark , notwithstanding prior opinion affirming the special circumstance finding].)21 In People v. Galvan (2020) 52 Cal.App.5th 1134, review granted October 14, 2020, S264284

, our colleagues in
Division One of this court concluded that allowing a petition
under section 1170.9 5 to challenge the evidentiary support for the felony

- murder special

- circumstance finding would give
defendants convicted before Banks and Clark “an enormous advantage” because “Defendants convicted after the Supreme
Court issued its decisions in Banks and Clark would be required to challenge the sufficiency of the evidence of the special circumstances finding on direct appeal, where the People would need only to show that substantial evidence support ed that finding.

. . . But where, as here, a defendant w as convicted before
Banks and Clark , if the defendant could bring a collateral challenge under section 1170.95, the prosecution would be required to prove the special circumstance beyond a reasonable doubt [and] nothing in the language of Senate Bill No. 1 437 suggests that the Legislature intended unequal treatment of such similarly situated defendants.” ( Galvan , at pp. 1142

- 1143, accord, People v. Murillo (2020) 54 Cal.App.5th 160, 168 , review granted Nov. 18, 2020, S264978 [“[b]y requiring a defendant to seek relief via habeas corpus, we avoid creating a disparity in which similarly situated defendants’ cases are evaluated under different standards based solely on the date of their convictions”]; People v. Gomez (2020) 52 Cal.App.5th 1 , 17 , review granted
Oct

. 14, 2020, S264033 .) These decisions misperceive the nature of the
section 1170.95 petition, which challenges the murder conviction, not the special circumstance finding. ( People v. York (2020)
54 Cal.App.5th 250, 260

, review granted Nov. 18, 2020

, S 264954 [“ section 1170.95 permits a petitioner to challenge a murder22

conviction

. If that challenge succeeds, then under
section 1170.95, subdivision (d)(3), the special circumstance is vacated as a collateral consequence ”]

. ) To be sure, section 189, sub division (e)(3) , as amended by Senate Bill 1437, is now “ the same as the standard for finding a special circumstance under section 190.2 [, subdivision] (d) as the former provision expressly incorporates the latter. ” ( In re Taylor (2019) 34 Cal.App.5th 543 , 561 ; accord, People v. York

, supra , 54 Cal.App.5th at p. 258

, review granted [“[t] he language of
section 189, subdivision (e)(3), as amended by Senate Bill 1437, tracks the language of the special circumstance provision ”] .) But “[w]hat permits a defenda nt convicted of felony murder to challenge his or her murder conviction based on the contention that he or she was not a major participant in the underlying felony who acted with reckless indifference to human life, are the changes Senate Bill 1437 made to sections 188 and 189, and in particular the addition of section 189, subdivision (e)(3), not the rulings in Banks and Clark

. ” ( York

, at p. 261.) Thus, Harris ’s petition is made possible by the changes made to section 189, not
because of the clarificatio ns made in Banks and Clark

. ( See § 1170.95, subd. (a)(3) [allowing petition if “t he petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019 ”]. ) Similarly, although Harris’s jury was instructed that to
find true the special circumstance allegation under section 190.2,
subdivision s (a)(17) and (d) , it had to find he aided and abetted the arson that led to the victims’ deaths while acting as a major participant with reckless in difference to human life, the same
element s now found in section 189, subdivision (e)(3), th at

pre

- Banks / Clark finding, without more, does not preclude relief23

under section 1170.95. (See In re Scoggins

, supra , 9 Cal.5th at pp. 673

- 674 [“ Where a decision c larifies the kind of conduct proscribed by a statute, a defendant whose conviction became final before that decision ‘is entitled to post

- conviction relief upon a showing that his [or her] conduct was not prohibited by the
statute’ as construed in the deci sion. [Citation.] “In such circumstances, it is settled that finality for purposes of appeal is no bar to relief, and that habeas corpus or other appropriate extraordinary remedy will lie to rectify the error’” ]; People v.
York

, supra , 54 Cal.App.5th at p. 262
, review granted [ “a pre

Banks and Clark special circumstance finding

— necessarily made on the basis of our former, and significantly different, understanding of what the terms ‘ major participant ’ in the underlying felony and ‘ reckless indifference ’ t o human life

meant

— does not preclude relief under section 1170.95 as a matter of law”]; People v. L aw , supra , 48 Cal.App.5th at p. 825
, review granted [“ the trial court erred by concluding the special circumstance finding, on its own, rendered Law ineligib le for
relief

— that is, the court erred by failing to determine whether Law qualified as a major participant who acted with reckless
i ndifference to human life under Banks and Clark ”]; People v. Torres (2020) 46 Cal.App.5th 1168, 1180, review granted June 2 4, 2020, S26011 [because no court has affirmed the special circumstance findings at issue post

- Banks and Clark

, “[t] here is therefore a possibility that Torres was punished for conduct that is not prohibited by section 190.2 as currently understood ”] ; but

see People v. Nunez (2020) 57 Cal.App.5th 78, 93

, review granted
Jan. 13, 2021, S265918 [disagreeing with York

, Law and Torres ] .)
Because t he evidence supporting Harris’s special circumstance finding has never been reviewed under the24

standards set forth in Banks and Clark

, the superior court c ould properly determine he was ineligible for relief as a matter of law only after reviewing the available record of conviction in light of
the Banks and Clark factors. (See Verdugo

, supra , 44 Cal.App.5th at p. 330
, review granted [“[t] he record of conviction might also include other information that establishes the petitioner is ineligible for relief as a matter of law because he or she was convicted on a ground that remains valid notwithstanding Senate Bill 1437 ’ s amendments to sections 188
and 189 ”]; People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410 [record must show defendant is “indisputably ineligible for relief”].) I n making that
determination

— that is, in evaluating whethe r a petitioner has made a prima facie showing he or she is entitled to relief

— the superior court cannot engage in factfinding. As the court of appeal explained in People v. Drayton

, supra , 47 Cal.App.5th at

p age 980
, “T he trial court should not evaluate t he credibility of
the petition ’ s assertions, but it need not credit factual assertions
that are untrue as a matter of law

— for example, a petitioner ’ s assertion that a particular conviction is eligible for relief where
the crime is not listed in subdivision (a) of section 1170.95 as eligible for resentencing. Just as in habeas corpus, if the record

‘ contain[s] facts refuting the allegations made in the petition

. . . t he court is justified in making a credibility determination
adverse to the petitioner. ’ [ Citation.] However, this authority to make determinations without conducting an evidentiary hearing pursuant to section 1170.95, subd ivision (d) is limited to readily ascertainable facts from the record (such as the crime of conviction), rather than factf inding involving the weighing of evidence or the exercise of discretion (such as determining25

whether the petitioner showed reckless indifference to human life in the commission of the crime)

. ” (Accord, People v. Perez (2020)

54 Cal.App.5th 896, 903

- 904 , r eview granted Dec. 9, 2020,
S265254 ; People v. Nguyen ( 2020) 53 Cal.App.5th 1154, 1165

- 1166

. )

4

. Harris Is Not Ineligible for Relief as a Matter of Law The superior court did not deny Harris’s petition based solely on the jury ’s true finding on the felony

- murder special

circumstance allegation

— the argument advanced by the Attorney
General , which we reject. Rather, the court, citing to evidence in
the record including portions of the factual statement from our opinion on Harris’s direct appeal , ruled “the facts show ” that Harris was a major participant in the arson who had act ed with reckless disregard for human life. Yet some of the facts made particularly significant by the Supreme Court’s decisions in
Banks and Clark were disputed at trial and not clear ly resolved by the jury’s finding. Our opinion stated that Bowden saw Harris, as well as Moore, fill bottles with gasoline and put torn pieces of bedsheet into the bottles and that Bowden heard Harris “pumping Moore up,” telling him he should get Dellano b ack for what he had
done. 13 At trial, however, Bowden recanted, claiming his

13 Although , as discussed, the appellate opinion is part of the record of conviction and factual state ments in the opinion are admissible in section 1170.95 proceeding s as “reliable hearsay

, ” f actual statements that are inconsistent with the evidence at trial

— like any other form of evidence

— are not preclusive. ( See People v. Woodell

, supra , 17 Cal.4th at p. 457 [facts recited in an opinion on direct appeal are admissible and “probative” in a posttrial proceeding; “[i] f the appellate court did state the pertinent facts, a trier of fact is entitled to find that those26

description of Harris’s involvement was false. In addition, Moore in his testimony at the first trial, read at Harris’s third trial, denied that Harris had encouraged him to seek revenge. For his part, Bowman was at most equivocal whether Harris had participated in making the firebombs or had simply been a passive observer, who then helped Moore transport the firebombs to Rivers’s apartment complex. And neither Alcaraz nor the

o ther individuals who witnessed the firebombing identified Harris as one of the two men they saw lighting rags and throwing objects through Rivers’s apartment window. Indeed, the court at Harris’s sentencing hearing stated there was no evidence Harris
had thrown any of the firebombs and it did not appear he intended the devices to hurt, let alone kill, anyone . Nor was
there evidence Harris was physically present when Moore hurled
the firebombs through Rivers’s bedroom window, rather than waiting for him in the van they had driven to the apartment complex. Harris unquestionably aided and abetted the arson that killed Rivers’s two young children, making him guilty of felony
murder as defined at the time. Prior to Banks and Clark , even the most benign of th ese depictions of Harris’s involvement in facilitating the crime would also have been sufficient for a felony

murder special

- circumstance finding. However, as explained in

statements accurately reflect the trial r ecord. Moreover, the defendant, who suffered the conviction and took the appeal, would know of and be able to challenge any material flaws or omissions in the opinion ”]; see also People v. Clements (Feb. 4, 2021, E073965) __ Cal.App.5th ___ [2021 Cal.App. Lexis 98, [*22]] [citing Woodell as authority for admissibility and probative value of facts stated in an opinion on direct appeal in a section 1170.95 evidentiary hearing].)27

Banks

, supra , 61 Cal.4th at page 802, “a defendant’s personal
involvement must be s ubstantial, greater than the actions of an ordinary aider and abettor

, ” to constitut e major participation. Here, Harris’s role “in planning the criminal enterprise that led to one or more deaths” ( Banks , at p. 803) appears to have been nonexistent, even i f the evidence that he encouraged Moore to seek revenge is credited. Similarly, Harris’s role in making the
Molotov cocktails

— “supplying [the] lethal weapons”

— was disputed; a nd, as discussed, there was no evidence he actually
used them. ( Ibid .) Moreover , g iven Harris’s youth at the time of the crime, particularly in light of subsequent case law’s recognition of the scien ce relating to adolescent brain development (see, e.g., Graham v. Florida (2010) 560 U.S. 48;
Miller v. Alabama (2012) 567 U.S. 460; Peo ple v. Gutierrez (2014) 58 Cal.4th 1354) , it is far from clear that Harris was actually aware “of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants.” ( Banks , at p. 803.) On the othe r hand, several of
the Banks factors clearly point toward Harris as a major participant in the arson. Even if not present in front of Rivers’s apartment building, he was near the scene and in a position to prevent the actual murders; his own actions, at l east carrying the firebombs to the van and perhaps encouraging Moore ’s planned retribution, certainly played a role in the deaths of the victims ; and he apparently fled with Moore after the fire started. ( Ibid .) Thus, determining whether Harris could now be found to have been a major participant within the meaning of section 189,
subdivision (e)(3), requires factfinding following an evidentiary hearing pursuant to section 1170.95, subdivision (d).28 Similarly, although Harris’s jury was instructed reckless indifference to human life requires proof the defendant was

aware his acts “involved a grave risk of death to an innocent human being,” 14 the Supreme Court in Clark

, supra , 63 Cal.4th at page 617, clarified reckless indifference encompasses a willingness to assist another in killing to achieve a particular goal, even if the victim’s death was not specifically intended.
“This def

i nition encompasses both subjective and objective
elements. The subjective element is the defendant ’ s conscious disregard of risks known to him or her. But recklessness is not determined merely by reference to a defendant ’ s subjective feeling that he or she is engaging in risky activities. Rather,
recklessness is also determined b y an objective standard, namely
what ‘ a law

- abiding person would observe in the actor ’ s situation. ’ ” ( Ibid .)

14 CALJIC No. 8.80.1, as given at Harris’s trial, instructed that the felony

- mur der special circumstance could be found true as to a defendant who was not the actual killer and did not act with an intent to kill only if the defendant “with reckless indifference to human life and, as a major participant, aided [or] abetted .

. . in the commission of the crime of arson which resulted in the death of a human being.” The written version of the instruction explained, “A defendant acts with reckless indifference to human life when the defendant knows or is aware that his acts involved a gra ve risk of death to an innocent human being.” However, when giving the instruction, the trial court said, “A defendant acts with reckless indifference to human life when that defendant knows or is aware that his acts involved a danger of risk of death to an innocent human being.” Neither the written nor oral version of the instruction defined “major participant.”29 Objectively, firebombing the apartment of a family with two young children at 9:00 p.m. creates a high risk that someone may be killed. However, Harris’s subjective willingness to assist
an act of revenge that he understood involved such a grave risk is

not established as a matter of law by the record of conviction

. Again, factfinding following an evidentiary hearing is necessary
to determine whether Harris could be convicted of felony murder
under the current version of section 189, subdivision (e), and, therefore, is i neligible for relief under section 1170.95

. 15
DISPOSITION The order denying Harris’s section 1170.95 petition is reversed, and the matter remanded with directions to issue an
order to show cause and to proceed consistently with
section 1170.95, subdivision (d).

PERLUSS, P. J.
We concur:

SEGAL , J. FEUER , J.

15 The superior court did not consider, and the Attorney General does not argue on appeal, the significance, if any, of the jury’s true findings that the murders had been committed by means of a destructive device pursuant to section 190.2, subdivision (a)(6).