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.

CALEB JAMES HARRIS,

Defendant and Appellant.

 B300410

 (Los Angeles County

 Super. Ct. No. YA023031-02)

APPEAL from an order of the Superior Court of 

Los Angeles County, Laura C. Ellison, Judge. Reversed and 

remanded with directions.

Center for Juvenile Law 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 

Attorneys General, for Plaintiff and Respondent.

_________________________
2

After two mistrials a jury in January 1997 found Caleb 

James Harris guilty on two counts of 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-circumstance 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 (Dec. 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 hearing argument, the 

superior court denied the petition. On appeal Harris advances 

three primary arguments: The court improperly engaged in 

factfinding without issuing an order to show cause and holding 

an evidentiary hearing; the jury’s arson-murder specialcircumstance 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.4th 522 (Clark) of the requirements for finding a felonymurder 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 when

Rivers, in 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 that afternoon Moore went to the apartment where 

Eric Bowden was staying; Harris was also present. Bowden 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 dude 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. According 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 than 
4

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, loose clothing 

outside Rivers’s apartment lighting a rag and throw an object 

through 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 

firebombing. 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 burns 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 

Molotov 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 alleged 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 explained he had simply 
5

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. The first 

trial ended in a mistrial when the jury was 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 

against 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 statements to the 

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 behind the apartment complex and said he saw 

Moore and Harris carry the Molotov cocktails to a parked van 

and drive away together. However, Bowman answered 

inconsistently to repeated questions whether Harris had been one 

of the men actually making the Molotov 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 bodily 
6

injury. The jury also found true all the charged special 

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 either arson or murder. The motion also asserted 

Harris’s trial counsel, who presented no defense witnesses, 

provided constitutionally ineffective representation. The court 

denied the motion, observing, “I agree with the jury. I thought 

[Bowman] was credible. 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 babies 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 was nothing wrong with the verdict.” 

d. The trial court’s comments at sentencing 

The 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 

sentenced 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 the 

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 his 
7

participation in this matter, that life without possibility 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 declaration 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 

neither a major participant in the underlying felony nor had 

acted with reckless indifference to human life during the course 

of that felony. 

In an accompanying memorandum Harris stated that the 

prosecutor had proceeded at his third trial primarily on a felonymurder theory, arguing Harris had assisted Moore in making and 

transporting the firebombs to Rivers’s apartment 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 convict 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 and that the $32,000 restitution fine had been 

imposed without 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 arguments 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.4th 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 resentencing 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 convictions 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 Ruling

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 filed 
9

Explaining 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 Dellano 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 done. 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 question. 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 devices, 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 children. 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 rather than evaluating the 

record of conviction solely to determine whether it established 

Harris’s ineligibility for relief under section 1170.95 as a matter 

of law.5 However, the Attorney General contends the court 

correctly ruled Harris ineligible as a matter 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 this 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, were 

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 consequences 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 

constitutional arguments.

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, 842-843 (Gentile))6 and significantly limited the 

felony-murder exception to the malice requirement for murder. 

(See, e.g., People v. Rodriguez (2020) 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 

petition 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, subdivision (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, absent proof of malice, 

when other specified circumstances relating 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 person 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. Verdugo (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 the 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 agreed 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, 1054, 

review granted September 23, 2020, S263939; 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 

process 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 relief—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 the first step, we explained, “[B]ecause 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 natural and 

probable consequences doctrine (§ 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 abstract 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 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.” (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; accord, 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),

contemplates two separate steps and held a petitioner is entitled 

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 the 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 sufficient 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 interpretation 

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 hold 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 and 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 does 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 Cal.App.5th at p. 230;

People v. Lopez (2020) 56 Cal.App.5th 936, 949, review granted 

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 essentially 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 burden of 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 

(Stats. 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 consider 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 law.” (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 (1998) 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 law].)

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 death. (Id. at p. 418.) In postconviction 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

[proper 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 [reliable 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 Proposition 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. filed Dec. 23, 2020.)

3. Harris May Challenge the Special Circumstance 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 

subdivision (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, subdivision (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 reckless 

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 or 
18

in assessing such a felony-murder special-circumstance finding 

were clarified in Banks, supra, 61 Cal.4th 788 and Clark, supra, 

63 Cal.4th 522, nearly two decades after Harris’s conviction. 

(See In re Scoggins (2020) 9 Cal.5th 667, 671; In re Miller (2017) 

14 Cal.App.5th 960, 977-978.) 

In Banks the Supreme Court identified factors courts 

should consider in determining whether a defendant was a 

“major participant” under section 190.2, subdivision (d): “What 

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 the 

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 role 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 must “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 Banks). 

Among others, was the defendant aware that guns would be used; 

did the defendant himself or herself use a gun; did the defendant 

have an opportunity to reduce the overall risk of violence during 

the felony or to aid the victim; did the defendant know his or her 

cohorts were likely to use lethal force? (Clark, supra, 63 Cal.4th 

at pp. 618-622.) Specifically 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 statutory 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 felonymurder aider and abettor special circumstance.” (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 the 
20

b. The jury’s pre-Banks/Clark felony-murder specialcircumstance 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 

indifference 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 that

finding based on Banks and Clark had to be made by petition for 

writ of habeas corpus. Although this position has been upheld in 

several court of appeal decisions, we reject it, as have other 

courts, 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 preBanks/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 finding 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 vacating 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 1170.95 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 supported that 

finding. . . . But where, as here, a defendant was 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. 1437 

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, S264954

[“section 1170.95 permits a petitioner to challenge a murder 
22

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, subdivision (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 defendant 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 clarifications made in Banks and Clark. 

(See § 1170.95, subd. (a)(3) [allowing petition if “the 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, 

subdivisions (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 indifference to human life, the same 

elements now found in section 189, subdivision (e)(3), that

pre-Banks/Clark finding, without more, does not preclude relief 
23

under section 1170.95. (See In re Scoggins, supra, 9 Cal.5th at 

pp. 673-674 [“Where a decision clarifies 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 decision. [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 preBanks 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’ to human life 

meant—does not preclude relief under section 1170.95 as a 

matter of law”]; People v. Law, 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 ineligible for 

relief—that is, the court erred by failing to determine whether 

Law qualified as a major participant who acted with reckless 

indifference to human life under Banks and Clark”]; People v.

Torres (2020) 46 Cal.App.5th 1168, 1180, review granted June 24, 

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 the evidence supporting Harris’s special 

circumstance finding has never been reviewed under the 
24

standards set forth in Banks and Clark, the superior court could 

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”].) In making that

determination—that is, in evaluating whether 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 

page 980, “The trial court should not evaluate the 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 . . .

the 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, subdivision (d) is limited to readily 

ascertainable facts from the record (such as the crime of 

conviction), rather than factfinding involving the weighing of 

evidence or the exercise of discretion (such as determining 
25

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, review 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 specialcircumstance 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 acted 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 clearly 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 back 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 statements in the opinion are

admissible in section 1170.95 proceedings as “reliable hearsay,”

factual 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 those 
26

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 

other 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 these depictions of Harris’s involvement in 

facilitating the crime would also have been sufficient for a felonymurder special-circumstance finding. However, as explained in 

statements accurately reflect the trial record. 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 substantial, greater than the actions of an 

ordinary aider and abettor,” to constitute 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 if 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; and, as discussed, there was no evidence he actually 

used them. (Ibid.) Moreover, given Harris’s youth at the time of 

the crime, particularly in light of subsequent case law’s 

recognition of the science relating to adolescent brain 

development (see, e.g., Graham v. Florida (2010) 560 U.S. 48; 

Miller v. Alabama (2012) 567 U.S. 460; People 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 other 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 least 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 definition 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 by 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-murder 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 grave 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 ineligible 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).