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Filed 12/18/20 P. v. Strong CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER STRONG,

Defendant and Appellant.

C091162

(Super. Ct. No. 11F06729)

Defendant Christopher Strong appeals from the trial court’s order dismissing his 

petition for resentencing brought pursuant to Penal Code section 1170.95.1 Defendant 

argues the trial court erred when it determined that his convictions for first degree murder 

with robbery, burglary, and multiple-murder special circumstances precluded his 

eligibility for relief. Noting that the trial court had jurisdiction to consider the order 

1

 Undesignated statutory references are to the Penal Code.
2

despite its announcement to the contrary, we construe the order dismissing the petition as 

an order denying the petition, and we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant’s Convictions

In 2014 a jury found defendant guilty of two counts of first degree murder (§ 187) 

and found true three special circumstance allegations of robbery murder (§ 190.2, subd. 

(a)(17)), burglary murder (§ 190.2, subd. (a)(17)), and multiple murder (§ 190.2, sub. 

(a)(3)). 

In its charge to the jury at the conclusion of the parties’ presentations, the trial 

court included CALCRIM No. 703 (Special Circumstances: Intent Requirement for 

Accomplice After June 5, 1990—Felony Murder (Pen. Code, § 190.2(d))), which told the 

jury that if it found defendant was not the actual killer, in order to prove the special 

circumstances true: “[T]the People must prove either that the defendant intended to kill, 

or the People must prove all of the following:

“1. The defendant’s participation in the crime began before or during the killing;

“2. The defendant was a major participant in the crime; 

“AND

“3. When the defendant participated in the crime, he/she acted with reckless 

indifference to human life.”2 

The convictions resulted from an attempted home invasion robbery of a drug 

dealer by defendant and his codefendant, Donald Ortez-Lucero. During the robbery, 

Ortez-Lucero shot and killed a man and his infant son.3 (People v. Ortez-Lucero et al. 

2

 The record does not include the jury instructions given at trial, but defendant 

acknowledges the jury was instructed with CALCRIM No. 703. 

3

 The Attorney General requests we take judicial notice of our opinion from the direct 

appeal of defendant’s case. Defendant does not object to the request. We will grant the 
3

(Dec. 27, 2017, C076606) [nonpub. opn.] slip. opn. at pp. 2-3.) We affirmed the 

judgment on appeal. (Id. at pp. *2, *32.)

Legal Background

Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January 

1, 2019, was enacted “to amend the felony murder rule and the natural and probable 

consequences doctrine, as it relates to murder, to ensure that murder liability is not 

imposed on a person who is not the actual killer, did not act with the intent to kill, or was 

not a major participant in the underlying felony who acted with reckless indifference to 

human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The legislation accomplished this by 

amending sections 188 and 189 and adding section 1170.95 to the Penal Code.

Section 188, which defines malice, now provides in part: “Except as stated in 

subdivision (e) of Section 189, 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.” (§ 188, subd. (a)(3).) Section 189, subdivision (e) 

now limits the circumstances under which a person may be convicted of felony murder: 

“A participant in the perpetration or attempted perpetration of a felony listed in 

subdivision (a) [defining first degree murder] in which a death occurs is liable for murder 

only if one of the following is proven: [¶] (1) The person was the actual killer. [¶]

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, 

counseled, commanded, induced, solicited, requested, or assisted the actual killer in the 

commission of murder in the first degree. [¶] (3) 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.”

request and take judicial notice of the opinion. (Evid. Code, §§ 459, subd. (a) [“The 

reviewing court may take judicial notice of any matter specified in Section 452”], 452, 

subd. (d) [permitting a court to take judicial notice of records of “any court of this 

state”].)
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Senate Bill No. 1437 also added section 1170.95, which allows those “convicted 

of felony murder or murder under a natural and probable consequences theory [to] file a 

petition with the court that sentenced the petitioner to have the petitioner’s murder 

conviction vacated and to be resentenced on any remaining counts when all of the 

following conditions apply: [¶] (1) A complaint, information, or indictment was filed 

against the petitioner that allowed the prosecution to proceed under a theory of felony 

murder or murder under the natural and probable consequences doctrine. [¶] (2) The 

petitioner was convicted of first degree or second degree murder following a trial . . . . 

[¶] (3) The petitioner could not be convicted of first or second degree murder because of 

changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)

As relevant here, once a complete petition is filed, “[t]he 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 within 60 days of service of the petition and the petitioner may file and serve a 

reply within 30 days after the prosecutor response is served. . . . 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.” (§ 1170.95, subd. (c).)

Defendant’s Petition

In 2019 defendant, through counsel, filed a form petition for resentencing pursuant 

to section 1170.95. He declared that a complaint, information, or indictment had been 

filed against him that allowed the prosecution to proceed under a theory of felony murder 

or murder under the natural and probable consequences doctrine, he was convicted of 

first degree or second degree murder under the felony-murder rule or the natural and 

probable consequences doctrine, and he could not now be convicted of first or second 

degree murder based on the recent changes to sections 188 and 189. Counsel attached 

briefing detailing defendant’s sentence and requesting resentencing. As relevant here, the 
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People responded that defendant was ineligible for relief because the special 

circumstance, found true, described that defendant was the actual killer, intended to kill, 

or was a major participant in the underlying felony who acted with reckless indifference 

to human life. 

The trial court dismissed the petition in a written order. The court found in 

relevant part that defendant “fail[ed] to show in any of the pleadings filed by himself or 

by his counsel, that he is eligible for relief under Penal Code § 1170.95. In Case 

No. 11F06729, he was convicted of two counts of Penal Code § 187 first degree murder, 

with three special circumstances -- Penal Code § 190.2(a)(17) robbery-murder; Penal 

Code § 190.2(a)(17) burglary-murder; and Penal Code § 190.2(a)(3) multiple murder --

unanimously found true by a jury beyond a reasonable doubt with regard to each of the 

two murders. In so finding, the jury necessarily found that defendant Strong either was 

the actual killer, intended to kill, or was a major participant who acted in the robbery and 

burglary with reckless indifference to human life, as the jury was specifically instructed 

with CALCRIM no. 703 with regard to all three of the special circumstances. Defendant 

Strong does not show otherwise. [⁋] In an opinion issued on December 27, 2017, the 

Third District Court of Appeal affirmed the judgment on appeal. Defendant Strong did 

not raise any claim under People v. Banks (2015) 61 Cal.4th 788 or People v. Clark

(2016) 63 Cal.4th 522, even though those opinions had long been issued during the 

pendency of defendant Strong’s appeal. The Third District issued its remittitur on the 

appeal on April 12, 2018, rendering the judgment against defendant Strong final in Case 

No. 11F06729. [⁋] This court’s underlying file for Case No. 11F06729 does not indicate 

that there has been any subsequent post-conviction proceeding in which any or all of the 

special circumstances have been vacated or defendant Strong resentenced in any manner 

for any reason.”

The order concluded: “As Penal Code §§ 187 and 189 still provide for first degree 

murder based on robbery-murder and burglary-murder, when the trier of fact has found 
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beyond a reasonable doubt that the defendant either was the actual killer, intended to kill, 

or was a major participant who acted in the robbery with reckless indifference to human 

life, and as a unanimous jury in Case No. 11F06729 necessarily found that to be so 

beyond a reasonable doubt with regard to each of the two first degree murders, and as it 

does not appear that there has been any post-conviction proceeding in which it was 

ordered that defendant Strong’s special circumstance findings be vacated in Case 

No. 11F06729, defendant Strong is ineligible for the relief he seeks. Under these 

circumstances, it is simply beyond a reasonable doubt that defendant Strong would have 

been convicted of first degree murder on both counts even if the SB 1437 amendments to 

Penal Code §§ 188 and 189 had been effective at the time of his trial.” The court then 

dismissed the petition, which we construe as a denial thereof. 

DISCUSSION

Defendant argues the trial court erred when it determined the special circumstance 

findings from his 2014 trial conclusively established that he was a “major participant who 

acted in the robbery and burglary with reckless indifference to human life.” He posits 

that because the definitions of “major participant” and “reckless indifference to human 

life” were clarified by our Supreme Court after the jury made its findings, in People v. 

Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, the special 

circumstance findings from his trial are potentially invalid. Relying on People v. Torres

(2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011 (Torres), defendant 

asserts Banks and Clark require further litigation of his case to determine his eligibility 

for relief. 

The Attorney General responds that Torres was wrongly decided, and although 

Banks and Clark enabled defendants to file new habeas petitions attacking their special 

circumstance convictions, “section 1170.95 does not provide defendants with a 

generalized collateral attack on their convictions.” Rather, a defendant must first seek 
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habeas relief on a special circumstance conviction and, if successful, can then proceed 

through the section 1170.95 process.4

After the close of briefing in this case, the Fourth Appellate District, Division One 

in People v. Gomez (2020) 52 Cal.App.5th 1, review granted October 14, 2020, S264033 

(Gomez), and the Second Appellate District, Division One in People v. Galvan (2020) 

52 Cal.App.5th 1134, review granted October 14, 2020, S264284 (Galvan), issued 

opinions supportive of the Attorney General’s position. (See also People v. Murillo

(2020) 54 Cal.App.5th 160, review granted Nov. 18, 2020, S267978.) More recently, 

Division Five of the Second Appellate District, in People v. York (2020) 54 Cal.App.5th 

250, review granted Nov. 18, 2020, S264954 (York), followed Torres and criticized 

Galvan. (See also People v. Smith (2020) 49 Cal.App.5th 85, review granted July 26, 

2020 S262835.) The Second Appellate District, Division One then issued People v. 

Allison (2020) 55 Cal.App.5th 449 (Allison) in direct response to York. (Allison at p. 

449.) Most recently, the Fourth Appellate District, Division Two, followed Allison in 

People v. Jones (2020) 56 Cal.App.5th 474, as did the Second Appellate District, 

Division Two, in People v. Nunez (2020) 57 Cal.App.5th 78.

Although certain of those cases also concern the appropriate stage in the section 

1170.95 proceedings for appointment of counsel, an issue that is now pending before our 

Supreme Court in People v. Lewis (2020) 43 Cal.App.5th 1128, review granted March 

18, 2020, S260598, this case does not. Here, petitioner was represented by counsel at all 

times. The issue here is solely whether defendant was able to challenge the continued 

viability of the jury’s special circumstance findings in a petition brought pursuant to 

4

 As the trial court noted, defendant did not challenge the special circumstance findings 

on direct appeal. At the time the trial court issued its order, defendant had filed a petition 

for habeas corpus in federal court. That case is currently stayed under Rhines v. Weber 

(2005) 544 U.S. 269, pending the completion of this appeal. (Strong v. Foss (E.D.Cal. 

Mar. 19, 2020, No. 2:19-cv-01268 KJM GGH P) 2020 U.S.Dist.LEXIS 48864, at *1-2.)
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section 1170.95. We find Galvan and Allison more persuasive than the cases to the 

contrary.

Our Supreme Court’s decisions in Banks and Clark clarified “what it means for an 

aiding and abetting defendant to be a ‘major participant’ in an underlying felony and to 

act with ‘reckless indifference to human life,’ [and] construed section 190.2, subdivision 

(d) in a significantly different, and narrower manner than courts had previously construed 

the statute.” (Torres, supra, 46 Cal.App.5th at p. 1179; see also Galvan, supra, 

52 Cal.App.5th at p. 1141.) In Galvan the appellate court acknowledged these changes to 

section 190.2, subdivision (d) and considered whether a defendant could relitigate his 

special circumstance conviction using section 1170.95. (Galvan, supra, 52 Cal.App.5th 

at p. 1141.) There, as here, the defendant was convicted of first degree murder with a 

special circumstance finding under section 190.2, subdivision (a)(17) made before Banks

and Clark were decided. (Galvan, at pp. 1138-1139.) On appeal, the defendant, like 

defendant here, argued that Banks and Clark had altered the meaning of “major 

participant” and “reckless indifference to human life” such that he was entitled to 

reconsideration of the conviction under section 1170.95. (Id. at p. 1137.)

The Galvan court first considered the relevant statutory language: “In order to be 

eligible for resentencing, a defendant must show that he or she ‘could not be convicted of 

first or second degree murder because of changes to Section[s] 188 or 189 made 

effective’ as part of Senate Bill No. 1437.” (Galvan, supra, 52 Cal.App.5th at p. 1142, 

italics added; § 1170.95, subd. (a)(3) (italics added.) The court concluded that as to 

Galvan the requirement was not met, because “[a]lthough [the defendant] is asserting that 

he could not now be convicted of murder, the alleged inability to obtain such a conviction 

is not ‘because of changes’ made by Senate Bill No. 1437, but because of the clarification 

of the requirements for the special circumstance finding in Banks and Clark. Nothing 

about those requirements changed as a result of Senate Bill No. 1437. Just as was the 

case before that law went into effect, the special circumstance applies to defendants who 
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were major participants in an underlying felony and acted with reckless indifference to 

human life. If [the defendant] is entitled to relief based on Banks and Clark, the avenue 

for such relief is not section 1170.95, but a petition for writ of habeas corpus.” (Galvan, 

at p. 1142.)

The Galvan court also observed that permitting defendants to relitigate a special 

circumstance finding by way of a section 1170.95 petition would “give [them] an 

enormous advantage over other similarly situated defendants based solely on the date of 

[their] conviction.” (Galvan, supra, 52 Cal.App.5th at p. 1142.) “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 circumstance finding on direct 

appeal, where the People would need only to show that substantial evidence supported 

that finding.” (Id. at pp. 1142-1143.) Defendants convicted before Banks and Clark, on 

the other hand, could challenge the special circumstance findings under section 1170.95, 

which would require the prosecution “to prove the special circumstance beyond a 

reasonable doubt.” (Galvan, at p. 1143.) “[N]othing in the language of Senate Bill 

No. 1437 suggests that the Legislature intended unequal treatment of such similarly 

situated defendants.” (Ibid.)

Defendant urges us to follow Torres, supra, 46 Cal.App.5th 1168, which reversed 

the denial of a section 1170.95 petition based on the changes made by Banks and Clark. 

In Torres, as in this case and Galvan, the defendant was convicted of first degree murder 

with a special circumstance finding under section 190.2, subdivision (a)(17). (Torres, at 

p. 1172.) The Torres court concluded the summary denial of the defendant’s petition 

based on the pre-Banks/Clark special circumstance finding raised the “possibility that 

[the defendant] was punished for conduct that is not prohibited by section 190.2 as 

currently understood, in violation of [the defendant’s] constitutional right to due process” 

and, as relevant here, reversed and remanded. (Id. at p. 1180.)
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Torres had already sought habeas relief, claiming the special circumstance finding 

was no longer valid; his petition for relief had been denied. (Torres, supra, 

46 Cal.App.5th at p. 1180, fn. 4.) The appellate court considered whether that habeas 

petition precluded the section 1170.95 petition, but did not opine on whether habeas relief 

was more appropriate in light of section 1170.95’s statutory language.

In York, supra, 54 Cal.App.5th 250, the appellate court did consider whether a 

habeas petition was a preferable route to relief. (Id. at pp. 258-259.) The York court 

reviewed the language of section 1170.95, subdivision (d)(2), which provides a 

streamlined path to relief under section 1170.95 if a defendant has “a prior finding by a 

court or jury that the petitioner did not act with reckless indifference to human life or was 

not a major participant in the felony.” Because the statute does not include a counterpart 

to this subdivision accounting for a situation where there is a prior finding that a 

petitioner did act with reckless indifference to human life and was a major participant in 

the underlying felony, the court reasoned such a finding should not preclude a petitioner 

from relief. (York, at pp. 260-261.) The court concluded Galvan was incorrect when it 

concluded the defendant there could only avail himself of relief “because of” Banks and 

Clark, rather than Senate Bill No. 1437. Absent Senate Bill No. 1437, a successful Banks 

and Clark challenge would invalidate only the special circumstance finding, whereas a 

successful section 1170.95 petition would invalidate a murder conviction. (York, at 

p. 261.)

The Allison court addressed York after ordering briefing on the precise issue here: 

“Whether the trial court properly relied on [the defendant’s] admission of felony-murder 

special circumstances (§ 190.2, subd. (a)(17)) as the sole basis for finding that he had not 

made a prima facie showing that he was entitled to relief.” (Allison, supra, 55 

Cal.App.5th at p. 456.) The Allison court first emphasized that section 1170.95 requires a 

prima facie showing by petitioner that he “ ‘could not be convicted of . . . murder because 

of changes to Section 188 or 189 made’ in Senate Bill No. 1437.” (Allison, at p. 456.) It 
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noted that the requirements for a finding of felony murder under the newly amended 

version of section 189 were identical to the requirements of the felony-murder special 

circumstance that had been in effect at the time of the challenged murder conviction (in 

the Allison’s case, 1997; in the instant case, 2014). (Allison, at p. 456.) Thus, the special 

circumstance finding showed “as a matter of law that Allison could still be convicted of 

felony murder even under the newly amended version of section 189” and precluded a 

prima facie showing of eligibility. (Id. at p. 457)

The Allison court disagreed with the argument to the contrary embraced by York, 

that because no court had examined whether there was a factual basis for the special 

circumstance finding since Banks and Clark were decided, the finding was insufficient to 

show ineligibility as a matter of law. (Allison, supra, 55 Cal.App.5th at p. 457.) We 

agree with the Allison court that Banks and Clark did not change the law, but merely 

clarified the same principles that existed earlier. (See ibid; see also In re Miller (2017) 

14 Cal.App.5th 960, 978.) As the Allison court noted, the pattern jury instructions remain 

the same; Banks and Clark merely resulted in the addition of optional language thereto. 

(Allison, supra, 55 Cal.App.5th at p. 457.) 

We further observe that the language in section 1170.95, subdivision (d)(2) 

anticipates, rather than precludes, the possibility of habeas relief before a section 1170.95 

petition because one way to obtain a “prior finding” that meets the subdivision’s 

requirements is via habeas. (In re Ramirez (2019) 32 Cal.App.5th 384, 406.) If a 

defendant has successfully obtained such relief, the trial court is mandated to vacate the 

petition, providing the petitioner access to section 1170.95 relief once they have obtained 

habeas relief. Nothing precludes relief under section 1170.95; the language simply 

presumes a petitioner will pursue alternative relief first.

We find the Allison court’s responses to York persuasive, and the analyses of 

Allison and Galvan, considered together, convince us that the appropriate avenue for 

defendant’s challenge to the special circumstance allegations is through a petition of 
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habeas corpus, rather than the section 1170.95 petition filed in this case. (In re Miller, 

supra, 14 Cal.App.5th at p. 979 [permitting habeas challenge to special circumstance 

conviction].) The trial court did not err when it denied defendant’s petition.

DISPOSITION

The trial court’s order dismissing defendant’s petition under section 1170.95 is 

construed as a denial thereof and, as such, is affirmed.

 /s/

Duarte, J.

We concur:

 /s/

Hull, Acting P. J.

 /s/

Murray, J.