Filed 8/4/20
                CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION ONE

 THE PEOPLE,                           B300323

         Plaintiff and Respondent,     (Los Angeles County
                                       Super. Ct. No. BA390560)

         v.

 JESSE CALDELARI GALVAN,

         Defendant and Appellant.




      APPEAL from an order of the Superior Court of
Los Angeles County, Douglas Sortino, Judge. Affirmed.
      Matthew Alger, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Douglas L. Wilson, Deputy
Attorneys General, for Plaintiff and Respondent.
                   ____________________________
       Defendant and appellant Jesse Caldelari Galvan
challenges the trial court’s denial of his petition for resentencing
under Penal Code1 section 1170.95 on his murder conviction.
The court found that Galvan was ineligible for relief because
his conviction included a felony-murder special circumstance
(see § 190.2, subd. (a)(17)), which required the jury to find
beyond a reasonable doubt that he was a major participant in the
underlying robbery and that he acted with reckless indifference
to human life. A defendant who meets those criteria could
still be convicted of murder under recent changes to the felony
murder rule and, therefore, is ineligible for resentencing under
section 1170.95.
       Galvan contends that the trial court erred because, after
his conviction, our Supreme Court in People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th
522 (Clark) clarified the meaning of “major participant” and
“reckless indifference to human life,” and according to Galvan,
the facts in this case do not meet the clarified standard. We
affirm the trial court’s order because the proper remedy for
challenging a special circumstance finding is by a petition
for habeas corpus, not a petition for resentencing under
section 1170.95. In reaching this conclusion, we agree with
the recent decision in People v. Gomez (June 29, 2020, D076101)
___ Cal.App.5th ___ [2020 WL 3960294] (Gomez), albeit under
somewhat different reasoning. We disagree with People v. Torres
(2020) 46 Cal.App.5th 1168, 1179, review granted June 24, 2020,
S262011 (Torres), and the result in People v. Smith (2020)


      1Unless otherwise specified, subsequent statutory
references are to the Penal Code.




                                 2
49 Cal.App.5th 85, review granted July 22, 2020, S262835
(Smith) because it is inconsistent with our approach to the
construction of section 1170.95.

            FACTS AND PROCEEDINGS BELOW
       In our unpublished opinion in Galvan’s direct appeal
(People v. Galvan (Apr. 8, 2016, B259576) [nonpub. opn.]), we
described the facts of his case:
       “On December 21, 2009, Fereidoun Kohanim2 and his
wife visited their sons, Sami and Ramin Kohanim, at the family’s
98 Cents Store on Venice Boulevard. Around 4:00 p.m. Sami
left his father to watch the cash register while Sami used the
rest room and went to the back office. Hearing a loud noise,
Sami ran to the front of the store where he found his father
lying on the floor. A man was running out of the store.
       “Fereidoun died of a single gunshot wound to the back
of his head. A damaged .38-caliber bullet was recovered from
Fereidoun’s body.
       “A surveillance video showed three men enter the store.
One of the men wore a black beanie, a gray long sleeve shirt, and
a towel covering his neck. There was a light spot, which could
have been a small bandage, on his left cheek. As this person
held open a bag and said something to Fereidoun, one of the
other men pointed what appeared to be a chrome revolver at
Fereidoun, who was standing behind the counter. The gunman
then pointed the gun at Fereidoun’s wife and back at Fereidoun,
who tried to slap the gun away. The third man walked around



      2 2
       “ Members of the same family are referred to by first
name to avoid confusion. [(People v. Galvan, supra, B259576.)]”




                                3
the counter and Fereidoun moved toward him. The gunman then
shot Fereidoun in the back of the head.
       “Several still photographs were taken from the surveillance
video. These photos were shown to a Baldwin Park police officer
who identified appellant as the suspect with a towel around his
neck wearing the black beanie and gray long sleeve shirt. The
officer stated that a bandage appeared to be covering a tattoo on
appellant’s face, and appellant had tattoos on his head and neck
that were covered by the beanie and towel.
       “On July 7, 2010, police searched a home in Baldwin Park
where appellant and his girlfriend were living in a converted
garage. Police recovered a bluish-black beanie similar to the one
worn by one of the men in the video. In a closet in the garage
police also found a blue steel3 ‘.38 Special’ revolver loaded with
six rounds. Police found three more .38 Special rounds with
three other bullets in a paper bag, and 24 rounds of .38 Special
cartridges on a shelf. It could not be conclusively determined
whether the .38 Special revolver recovered in the search was the
murder weapon.” (People v. Galvan, supra, B259576.)
       On the day of the search, and again at trial, Galvan’s
girlfriend identified Galvan in video footage of the robbery
as the man in the gray sweatshirt. (People v. Galvan, supra,
B259576.)
       A jury convicted Galvan of first degree murder (§ 187)
and found true a felony-murder special circumstance. (§ 190.2,

      3 3
       “   The revolver seen in the video appeared to be chrome,
not blue steel, but Officer Cortina, who was present during
the search and had seen the video, explained the difference
in appearance could have been due to lighting conditions.
[(People v. Galvan, supra, B259576.)]”




                                4
subd. (a)(17).) The trial court exercised its discretion to sentence
Galvan, who was under age 18 at the time of the offense, to
25 years to life for the murder, rather than life without the
possibility of parole. (See § 190.5, subd. (b).)
       In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished
the natural and probable consequences doctrine in cases of
murder, and limited the application of the felony murder
doctrine. Under section 189, subdivision (e), as amended by
Senate Bill No. 1437, a defendant is guilty of felony murder only
if he actually killed the victim; directly aided and abetted or
solicited the killing, or otherwise acted with the intent to kill; or
“was a major participant in the underlying felony and acted with
reckless indifference to human life.” (§ 189, subd. (e)(3); People v.
Lamoureux (2019) 42 Cal.App.5th 241, 247–248.) The legislation
also enacted section 1170.95, which established a procedure
for vacating murder convictions for defendants who would no
longer be guilty of murder under the new law and resentencing
those who were so convicted. (Stats. 2018, ch. 1015, § 4,
pp. 6675–6677.)
       Galvan filed a petition for resentencing on March 29, 2019.
The trial court summarily denied the petition because the jury
found beyond a reasonable doubt that Galvan was a major
participant in the underlying felony and acted with reckless
indifference to human life. (See §§ 189, subd. (e)(3), 1170.95,
subd. (a)(3).)




                                  5
                          DISCUSSION
       The outcome of this case depends on the operation of
section 1170.95, the statute the Legislature enacted to provide
a procedure for defendants who were previously convicted of
murder, but who could no longer be convicted because of the
changes to the law enacted by Senate Bill No. 1437, to petition
to vacate their convictions and be resentenced.
       The statute requires a defendant to submit a petition
affirming that he meets three criteria of eligibility: (1) He was
charged with murder in a manner “that allowed 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) He “was convicted of” or pleaded guilty to “first
degree or second degree murder” (§ 1170.95, subd. (a)(2)); and
(3) He “could not be convicted of first or second degree murder
because of changes to Section[s] 188 or 189 made effective”
as a part of Senate Bill No. 1437 (§ 1170.95, subd. (a)(3)).
As described above, those changes eliminated the natural and
probable consequences doctrine as a basis for murder liability,
and added a requirement for felony murder that a defendant
must have been at least a major participant in the underlying
felony and have acted with reckless indifference to human life.
       Upon receipt of a petition, the trial court reviews it to
determine whether the petitioner has made a prima facie case
for relief. (§ 1170.95, subd. (c).) If the petitioner meets this
requirement, the court issues an order to show cause and holds
a hearing to determine whether to vacate the murder conviction.
(§ 1170.95, subd. (d)(1).) At this final stage of the proceeding, the
prosecution has the burden of proving beyond a reasonable doubt




                                  6
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).)
       In this case, the trial court denied Galvan’s petition
at the first stage of prima facie review under section 1170.95,
subdivision (c).4 A denial at that stage is appropriate only if
the record of conviction demonstrates that “the petitioner is
ineligible for relief as a matter of law.” (People v. Verdugo, supra,
44 Cal.App.5th at p. 329, review granted Mar. 18, 2020, S260493;
accord, People v. Lewis (2020) 43 Cal.App.5th 1128, 1140, fn. 10,
review granted Mar. 18, 2020, S260598.) This is a purely legal
conclusion, which we review de novo. (See People v. Verdugo,
supra, at p. 328, fn. 8.)
       The trial court justified its decision on the ground that
the special circumstance finding showed as a matter of law that
Galvan was ineligible for resentencing. The court reached this
conclusion by comparing the requirements for felony murder
under Senate Bill No. 1437 with those for the felony murder
special circumstance under section 190.2, subdivision (a)(17).
The requirements for the felony-murder special circumstance did
not change as a part of Senate Bill No. 1437, and are identical to
the new requirements for felony murder following the enactment


      4 Galvan filed his petition for resentencing through a
privately retained attorney and requested that the attorney be
appointed to represent him in the proceedings. The trial court
denied the petition without appointing the attorney or requesting
briefing from the prosecution, steps that the court would have
been required to take at the second stage of prima facie review.
(See § 1170.95, subd. (c); People v. Verdugo (2020) 44 Cal.App.5th
320, 329, review granted Mar. 18, 2020, S260493.) We thus infer
that the court denied the petition at the first stage of prima facie
review.




                                  7
of Senate Bill No. 1437. In both instances, the defendant
must have either actually killed the victim (§§ 189, subd. (e)(1),
190.2, subd. (b)); acted with the intent to kill in aiding, abetting,
counseling, commanding, inducing, soliciting, requesting, or
assisting in the killing (§§ 189, subd. (e)(2), 190.2, subd. (c)); or
been a major participant in the underlying felony and acted with
reckless indifference to human life (§§ 189, subd. (e)(3), 190.2,
subd. (d); see In re Ramirez (2019) 32 Cal.App.5th 384, 393). By
finding a special circumstance allegation true, the jury makes
precisely the same finding it must make in order to convict
a defendant of felony murder under the new law. Because a
defendant with a felony-murder special circumstance could still
be convicted of murder, he is ineligible as a matter of law to have
his murder conviction vacated. (See § 1170.95, subd. (a)(3).)
      Galvan argues that this conclusion does not follow because
after his conviction of felony murder, the Supreme Court decided
Banks and Clark, which decisions represent a significant shift
in the interpretation of the concepts of major participation
and reckless indifference to human life. In Banks, the Court
evaluated existing United States Supreme Court jurisprudence
on the issue and set out a series of considerations relevant
to determining whether a particular defendant was a major
participant in the underlying felony. (See Banks, supra,
61 Cal.4th at p. 803.) The Court did the same in Clark with
respect to whether the defendant acted with reckless indifference
to human life. (See Clark, supra, 63 Cal.4th at pp. 618–622.)
These new considerations clarified the requirements for the
felony murder special circumstance so significantly that courts
have allowed defendants to challenge the validity of pre-Banks
and Clark special circumstances findings via habeas corpus,




                                  8
making an exception to the rule that ordinarily bars a defendant
from challenging the sufficiency of the evidence in a habeas
petition. (See, e.g., In re Scoggins (2020) 9 Cal.5th 667, 673–674;
In re Miller (2017) 14 Cal.App.5th 960, 979 (Miller).)
       The Attorney General argues, however, that whether
the facts comply with Banks and Clark does not matter because
section 1170.95 is not the proper vehicle for such a challenge.
We agree.
       On this point there are conflicting cases. In Gomez, supra,
___ Cal.App.5th ___ [2020 WL 3960294], the Fourth District
reached the same conclusion as we do in this case. In Torres,
supra, 46 Cal.App.5th 1168, review granted June 24, 2020,
S262011, and Smith, supra, 49 Cal.App.5th 85, review granted
July 22, 2020, S262835, by contrast, our colleagues in Division 5
held that a defendant may challenge a felony murder special
circumstance by means of a petition under section 1170.95.
       In Gomez, the court reasoned that the defendant’s petition
was “in effect a challenge to the sufficiency of the evidence
to support the . . . special circumstance findings against
[the defendant].” (Gomez, supra, ___Cal.App.5th ___ [2020
WL 3960294 at p. *9].) If the defendant had filed a habeas
petition, the case would have been decided according to that
standard. (See Miller, supra, 14 Cal.App.5th at p. 974.) This
would mean that the defendant would “bear the burden of
showing the findings must be vacated on the ground there
is insufficient evidence to support them.” (Gomez, supra,
___ Cal.App.5th ___ [2020 WL 3960294 at p. *10].) By contrast,
in proceedings under section 1170.95, if a defendant can make
a prima facie case that defendant is entitled to relief, the burden
shifts to the prosecution to prove the defendant’s ineligibility




                                 9
beyond a reasonable doubt. (See § 1170.95, subd. (d)(3).)
Rather than merely vindicating defendant’s due process right
to challenge the sufficiency of the evidence supporting a finding
against the defendant, defendant would in effect obtain a new
trial, at which the prosecution would bear the burden of proving
matters that may not have been seen as relevant at the original
trial more than a decade earlier. The court concluded that the
prosecution should not be required to bear this burden, and that
“a petition for writ of habeas corpus is the appropriate vehicle . . .
to challenge [defendant’s] special circumstance findings.”
(Gomez, supra, ___ Cal.App.5th ___ [2020 WL 3960294 at p. *10].)
       Although we do not necessarily agree with all the reasoning
in Gomez, we believe it was correctly decided. We analyze the
issue by turning to the language of section 1170.95 itself: 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. (§ 1170.95, subd. (a)(3).)
       In this case, that requirement is not met. Although
Galvan 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 were major participants in an underlying
felony and acted with reckless indifference to human life. If
Galvan 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




                                 10
habeas corpus. (See Gomez, supra, ___ Cal.App.5th ___ [2020
WL 3960294 at p. *10].)
       It is not only unnecessary, in light of the existence of
habeas relief, to allow Galvan to proceed with a petition under
section 1170.95, but it would also give him an enormous
advantage over other similarly situated defendants based solely
on the date of his conviction. 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. If the judgment is affirmed, generally it would be the
law of the case in any proceedings thereafter as to those findings.
(In re Saldana (1997) 57 Cal.App.4th 620, 625; see also In re
Harris (1993) 5 Cal.4th 813, 829 [“in the absence of strong
justification, any issue that was actually raised and rejected
on appeal cannot be renewed in a petition for a writ of habeas
corpus”].) 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. (See Gomez, supra, ___ Cal.App.5th ___ [2020
WL 3960294 at p. *10].) Yet nothing in the language of Senate
Bill No. 1437 suggests that the Legislature intended unequal
treatment of such similarly situated defendants.
       The two cases that have reached contrary conclusions
are Torres and Smith. In Torres, the court, after holding
that the defendant had made a prima facie case under
section 1170.95, addressed the habeas issue only in a footnote,
noting that the defendant had previously filed a habeas petition




                                 11
to challenge the special circumstance finding, which the Court
of Appeal summarily denied. The court explained that this
was not determinative because a summary denial of a habeas
petition does not establish law of the case or have a res judicata
effect in future proceedings. (Torres, supra, 46 Cal.App.5th at
p. 1180, fn. 4, review granted June 24, 2020, S262011.) Torres
is inconsistent with our view that section 1170.95 does not
allow a Banks and Clark challenge to a felony murder special
circumstance and that habeas corpus is the correct procedure.
In Smith, the court did not address the possibility of habeas
relief at all. Instead, it held that the existence of a felony-murder
special circumstance does not bar a petitioner from relief under
section 1170.95 because no court had yet determined the validity
of the special circumstance following Banks and Clark. (Smith,
supra, 49 Cal.App.5th at p. 93, review granted July 22, 2020,
S262835.) Although the case did not address the question
whether habeas corpus relief was the appropriate remedy in a
special circumstance felony murder case, the result in Smith is
inconsistent with our view that section 1170.95 is not the correct
vehicle for a Banks and Clark special circumstance challenge.
       Our holding is not inconsistent with the legislative purpose
of Senate Bill No. 1437 “to restore proportional responsibility
in the application of California’s murder statute” (Sen. Com.
on Public Safety, Analysis of Sen. Bill No. 1437 (2017-2018
Reg. Sess.) Apr. 24, 2018, p. 3) by eliminating harsh sentences
for defendants who played only a relatively minor role in a felony
in which a victim was killed, while still retaining murder liability
for more culpable defendants. In conclusion, given the clear
language of section 1170.95, its legislative history, and to avoid
unequal application of the law to defendants similarly situated,




                                 12
we will not expand the section beyond its plain language.
Therefore, the trial court did not err by denying Galvan’s petition
at the first stage of review.

                         DISPOSITION
      The trial court’s order is affirmed.
      CERTIFIED FOR PUBLICATION.




                                     ROTHSCHILD, P. J.
We concur:




                  CHANEY, J.




                  BENDIX, J.




                                13
