 Filed 5/15/20
                 CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                        DIVISION FIVE


 THE PEOPLE,                        B298642

        Plaintiff and Respondent,   (Los Angeles County
                                    Super. Ct. No. BA042241)
        v.

 DAVID SHAWN SMITH,

        Defendant and Appellant.


      APPEAL from an order of the Superior Court of Los
 Angeles County, Robert Perry, Judge. Reversed and
 remanded, with instructions.
      Emry J. Allen, 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,
 Acting Senior Assistant Attorney General, David E. Madeo,
 Deputy Attorney General, Idan Ivri, Acting Supervising
 Deputy Attorney General, for Plaintiff and Respondent.
                 __________________________

       Defendant and appellant David Shawn Smith appeals
from a postjudgment order denying his petition for
resentencing pursuant to Penal Code section 1170.951 and
Senate Bill No. 1437 (Senate Bill 1437). As relevant here,
the statute and Senate bill provide for vacatur of a
defendant’s murder conviction and resentencing if the
defendant was convicted of felony murder and the defendant
(1) was not the actual killer, (2) did not act with the intent to
kill, and (3) was not a major participant who acted with
reckless indifference to human life. (§ 189, subd. (e)(3).)
       Smith contends the trial court erred by summarily
denying his petition on the merits and on the basis that
Senate Bill 1437 unconstitutionally amends section 190, and
by failing to appoint counsel prior to determining his
eligibility for resentencing.2
       The People agree that section 1170.95 and Senate Bill
1437 do not unconstitutionally amend section 190, but argue

     1 All further statutory references are to the Penal Code
unless otherwise indicated.

     2 Smith also contends that the trial court was required
to issue an order to show cause and conduct a hearing on the
matter. The court has no duty to do so prior to appointment
of counsel and briefing, and Smith does not argue otherwise.
As we are remanding for appointment of counsel and
briefing, the issue is premature and we decline to address it
here.



                            2
that the trial court’s ruling should be affirmed because in
1994 the jury found true the special circumstance that the
murder was committed during the commission of a robbery
(§ 190.2, subd. (a)(17)), a finding which we affirmed on direct
appeal in 1996.
      We reverse and remand to the trial court. We agree
with the parties that section 1170.95 and Senate Bill 1437
do not unconstitutionally amend section 190. We further
conclude that Smith should have been appointed counsel
before the trial court ruled on his petition.

         FACTS AND PROCEDURAL HISTORY

Murder Conviction

       In 1994, Smith was convicted of first degree murder
(§ 187, subd. (a) [count 1]) under a felony murder theory of
liability. The jury found true the special circumstance that
the murder was committed during the commission of a
robbery pursuant to section 190.2, subdivision (a)(17). Smith
was additionally convicted of two counts of kidnapping
(§ 209; [counts 2 & 3]), two counts of burglary (§ 459; [counts
4 & 5]), one count of residential robbery (§ 211; [count 7]),
and three counts of rape (§§ 261, subd. (a)(2), 264.1, 289;
[counts 8–10]). He was sentenced to life in state prison
without the possibility of parole, plus sixteen years.3

     3Smith’s offenses, carried out with his co-defendants
Anthony D. Jefferson and Reginald Ray York, as recited in



                           3
Appeal

       Smith appealed, contending, as pertinent here, that
there was insufficient evidence that he acted with “reckless
indifference to human life,” as required to support the jury’s
robbery murder special circumstance finding, and that the
trial court gave an erroneous instruction regarding “reckless
indifference.” (York, supra, B088372, at pp. 12–13.) This
court concluded that the jury’s robbery-murder special
circumstance finding was supported because substantial
evidence was presented to demonstrate that Smith acted
with “reckless indifference to human life,” i.e. that he had “a
subjective appreciation or knowledge . . . [that his] acts
involved a grave risk that such acts could result in the death
of an innocent human being.” (Id. at p. 12.) We also held
that there was no error in the instruction given to the jury
regarding reckless indifference (CALJIC No. 8.80.1). (Id. at
p. 13.)

Section 1170.95 Petition for Resentencing

     Petition for Resentencing

     On January 25, 2019, Smith petitioned for
resentencing under section 1170.95. He declared that he

our unpublished opinion, People v. York et al. (Jan. 16, 1996,
B088372) (York), are described in the trial court’s ruling,
post.



                           4
met all of the requirements for section 1170.95 and was
eligible for relief. Smith further declared that he was not a
“major participant” in the murder and did not act with
“reckless indifference.” Smith requested that counsel be
appointed to him.

     Trial Court’s Ruling

      The trial court denied the petition on February 19,
2019. The trial court’s written ruling discussed the reasons
for denial as follows:
      “On April 25, 1991, Otis Ervin robbed an armored car
of $500,000. Six weeks later, Defendant David Shawn Smith
joined with two other men to rob Ervin of his ill-gotten gains.
The intended robbery spiraled into a major crime spree
which included rape in concert, rape by a foreign object in
concert, burglaries, residential robberies, kidnappings and
murder.
      “Defendant Smith was convicted by jury and was
sentenced to life without parole plus 16 years. His
conviction was affirmed by the Court of Appeal in 1996 in an
unpublished opinion. (People v. Reginald Ray York, et al.,
(January 16, 1996), ___ Cal.App.3d ___ (York) [nonpub.
opn.])
      “The Court of Appeal opinion described the crimes
committed by Petitioner and his co-conspirators.
      “In this case, substantial evidence of reckless
indifference to human life exists. York and Jefferson




                           5
kidnapped the Howard sisters at gunpoint from the parking
lot where they worked. They handcuffed the two sisters and
threatened repeatedly to kill them. They informed the
sisters that they knew where they and their family lived and
had been observing the family. They were joined by Smith
and drove the sisters around for hours. They burglarized
Reginald Ervin’s apartment.
      “At the Perry residence, they held the entire Perry
household, including four small children, at gunpoint, while
they ransacked the house. They kicked, slapped, and beat
Reginald Ervin. They threatened to torture and kill the
family. They raped Yolanda, while continuing to hold her
family at gunpoint.
      “It is apparent defendants knew that their acts
involved a grave risk of the death of an innocent human
being. They held two young women at gunpoint and in
handcuffs for hours, they held a family, including young
children, at gunpoint while they ransacked the residence
and raped a sister. They threatened to torture and kill the
young women and the family. When Reginald Ervin
attempted to break free to get a gun to protect his family,
defendants shot and killed him.’ (People v. Reginald Ray
York, el al., Id., pp. 12, 13.)
      “In his petition, Smith claims he was not the actual
killer and he did not act with the intent to kill. He also
claims he was not a major participant in the felony and did
not act with reckless indifference to human life in this
matter. The Court of Appeal found otherwise.




                          6
       “The jury was instructed that in order to find the
felony-murder special circumstance to be true, it must find
that defendants were major participants in the underlying
felonies and acted with reckless indifference to human life.
(CALJIC No. 8.80.1.) ‘Reckless indifference to human life’
refers to a mental state which includes subjective
appreciation or knowledge by a defendant that the
defendant’s acts involved a grave risk that such acts could
result in the death of an innocent human being.
       (People v. Reginald Ray York, et al., Id.)
       “The Court also observed that ‘substantial evidence of
reckless indifference to human life’ existed for each of the
defendants and it was ‘apparent defendants knew that their
acts involved a grave risk of the death of a human being.’
(Id.)
       “Smith was a major participant in the events and acted
with obvious reckless indifference to human life during the
course of the many major crimes, including murder,
committed in this case. He is not eligible for sentencing
relief pursuant to Penal Code § 1170.95. See Penal Code
§§ 189(e)(1) and 1170.95(a)(3).
       “As a second and independent ground for denying
Smith’s petition for resentencing, the court finds SB 1437
and Penal Code § 1170.95 violate the California Constitution
because the Legislature unconstitutionally amended Penal
Code § 190 which was passed by referendum in 1978 by
Proposition 7 and may not be amended or repealed unless by
vote of the People.




                          7
     “The petition for resentencing is denied.”

                       DISCUSSION

      On appeal, Smith argues that section 1170.95 and
Senate Bill 1437 do not unconstitutionally amend section
190, and that he was entitled to appointment of counsel prior
to the trial court making any determination as to whether a
prima facie case for relief exists. He further contends that
the jury’s 1994 robbery murder special circumstance finding
does not bar him from relief, as the People argue.
      The People concede, and we agree, that section 1170.95
does not unconstitutionally amend section 190. Although we
disagree with Smith’s characterization of the petitioning
process, and specifically, the point at which entitlement to
counsel attaches, we conclude that Smith, in the words of
section 1170.95, subdivision (c), “made a prima facie showing
that [he] falls within the provisions of th[at] section,” and
was therefore entitled to appointment of counsel and an
opportunity for briefing.4

     4 Contrary  to Smith’s position that appointment of
counsel requires no prima facie showing whatsoever, we
have previously held that a petitioner is entitled to counsel
only after he has made a prima facie showing that he falls
within the statute’s provisions. (People v. Torres (2020) 46
Cal.App.5th 1168, 1178 (Torres)) However, because Smith
has made a prima facie showing that he falls within section
1170.95’s provisions, he is nonetheless entitled to
appointment of counsel.



                           8
Constitutionality

      The trial court denied Smith’s petition because Senate
Bill 1437 unconstitutionally amended section 190, which was
passed by referendum in 1978 through Proposition 7, and
cannot be amended or repealed except by the people’s vote.
The People concede, and we agree, that this was error.
Three of our sister courts have held that Senate Bill 1437
does not directly modify or amend the statutory changes
effected by Proposition 7 or amend the voter’s intent in
passing Proposition 7. (People v. Bucio (Apr. 27, 2020,
B299688) ___ Cal.App.5th ___ [2020 WL 1983347, p. 2];
People v. Solis (2020) 46 Cal.App.5th 762, 774–780; People v.
Cruz (2020) 46 Cal.App.5th 740,753–759; People v. Superior
Court (Gooden) (2019) 42 Cal.App.5th 270, 280–284; People
v. Lamoureux (2019) 42 Cal.App.5th 241, 250–251.) We
agree with the results reached in these cases, and as the
parties are also in agreement that Senate Bill 1437 does not
unconstitutionally amend section 190, we do not address the
issue further here.

Merits and Appointment of Counsel

      Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of
murder under a felony murder theory of liability could
petition to have his conviction vacated and be resentenced.
Section 1170.95 initially requires a court to determine




                          9
whether a petitioner has made a prima facie showing that he
or she falls within the provisions of the statute as set forth in
subdivision (a), including that “(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) [t]he petitioner was convicted
of first degree or second degree murder following a trial or
accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder[,
and] [¶] (3) [t]he petitioner could not be convicted of first or
second degree murder because of changes to Section 188 or
189 made effective January 1, 2019.” (See § 1170.95, subd.
(c); People v. Verdugo (2020) 44 Cal.App.5th 320, 327, review
granted Mar. 18, 2020, S260493 (Verdugo).) If it is clear
from the record of conviction that the petitioner cannot
establish eligibility as a matter of law, the trial court may
deny the petition.5 (Id. at p. 330.) If, however, a
determination of eligibility requires an assessment of the

     5  For example, if the jury was not instructed on a
natural and probable consequences or felony murder theory
of liability, the petitioner could not demonstrate eligibility as
a matter of law because relief is restricted to persons
convicted under one of those two theories. (See People v.
Lewis (2020) 43 Cal.App.5th 1128, 1138–1139, review
granted Mar. 18, 2020, S260598 (Lewis) [appellate court
opinion holding that jury convicted defendant of murder as a
direct aider and abettor barred defendant from relief as a
matter of law].)



                            10
evidence concerning the commission of the petitioner’s
offense, the trial court must appoint counsel and permit the
filing of the submissions contemplated by section 1170.95.
(Id. at p. 332; Lewis, supra, 43 Cal.App.5th at p. 1140.)

     Analysis

      In this case, the issue is whether there is anything in
the record of conviction that would permit the trial court to
determine that Smith does not fall within section 1170.95’s
provisions, such that it could deny his petition without
appointing counsel. More specifically, the question is
whether the trial court properly concluded as a matter of law
that the record on appeal precludes Smith from showing that
he was not a major participant in the robbery and did not act
with reckless indifference to human life. We conclude the
record provides no basis for such a determination.

           The Jury’s Special Circumstance Finding Does
           Not Preclude Eligibility

      The People urge us to affirm the trial court’s denial of
Smith’s petition on the basis of the jury’s 1994 robbery
murder special circumstance finding (§ 190.2, subd. (a)(17)),
which we affirmed in 1996.
      The jury’s true finding was predicated on its
determination that Smith was both a “major participant” in
the robbery and acted with “reckless indifference to human




                           11
life.” Under section 1170.95, the petitioner must make a
prima facie showing that he “could not be convicted of first or
second degree murder because of changes to Section 188 or
189 made effective January 1, 2019.” (§ 1170.95, subd.
(a)(3).) The language of section 189, subdivision (e)(3), as
amended by Senate Bill 1437, tracks the language of the
special circumstance provision. Section 189, subdivision (e)
now provides that “[a] participant in the perpetration or
attempted perpetration of a felony listed in subdivision (a)
[(in this case, robbery)] in which a death occurs is liable for
murder only if one of the following is proven: [¶] . . . [¶] (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.”
       The People’s argument has facial appeal: the plain
language of the requirements underlying the jury’s robbery
murder special circumstance finding in Smith’s case (i.e.
“major participant” and “reckless indifference to human life”)
is identical to the language setting forth the requirements
for murder liability under amended section 189. A difficulty
arises, however, because the jury’s special circumstance
finding was made prior to issuance of our Supreme Court’s
opinions in People v. Banks (2015) 61 Cal.4th 788 (Banks)
and People v. Clark (2016) 63 Cal.4th 522 (Clark), which
construed the meanings of “major participant” and “reckless
indifference to human life” “in a significantly different, and
narrower manner than courts had previously.” (Torres,
supra, 46 Cal.App.5th at p. 1179.) As a consequence, the




                            12
factual issues that the jury was asked to resolve in 1994 are
not the same factual issues our Supreme Court has since
identified as controlling. It would be inappropriate to
“treat[] [the 1994] findings as if they resolved key disputed
facts” when the jury did not have the same questions before
them. (Id. at p. 1180.) As we recently held, courts may not
“defer to the jury’s pre-Banks and Clark factual findings that
[the petitioner] was a major participant who acted with
reckless indifference to human life as those terms were
interpreted at the time” when determining the petitioner’s
eligibility for resentencing as a matter of law, in light of the
considerations identified in those two opinions. (Id. at
p. 1179.)
      The People acknowledge that our understanding of
“major participant” and “reckless indifference to human life”
have evolved with the issuance of Banks and Clark, but
argue that, in the absence of a successful challenge to the
special circumstance findings, the trial court “was obligated
to assume the conviction was lawful and comported with the
post-Banks guidelines.” We disagree, as the People’s
contention is inconsistent with the language and operation of
section 1170.95. Section 1170.95 provides that “[a] person
convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the
court that sentenced the petitioner to have the petitioner’s
murder conviction vacated . . . .” (§ 1170.95, subd. (a).) The
statute only specifically references special circumstance
findings in subdivision (d)(2), which states, “If there was a




                            13
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, the court shall vacate the
petitioner’s conviction and resentence the petitioner.” There
is no corresponding provision indicating that a jury’s prior
special circumstance true finding, or a court of appeal’s
affirmation thereof, operates as an automatic statutory bar
to eligibility. The absence of such a provision makes sense.
Determining whether a petitioner was a “major participant”
who acted with “reckless indifference” as those terms are
currently used in section 189 may require more than
deference to a jury’s special circumstance true finding—
indeed, in cases like Smith’s, where the finding was made
before Banks and Clark were issued and not affirmed
subsequent to those cases, it requires an analysis of the facts
involved.6
       Moreover, the potential remedies outlined in section
1170.95 indicate that the Legislature anticipated some
special circumstance findings would not preclude eligibility
as a matter of law, and that those findings would be
inconsistent with vacatur of the corresponding murder
conviction. Section 1170.95, subdivision (d)(3) provides, “If
the prosecution fails to sustain its burden of proof, the prior


     6 We  do not address whether a jury’s post-Banks and
Clark special circumstance true finding or a court’s
affirmance of a special circumstance finding following Banks
and Clark may be dispositive as a matter of law, as neither
question is before us in the present case.



                            14
conviction, and any allegations and enhancements attached
to the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (Italics added.) The
statute is clearly designed to resolve the question of whether
a murder conviction—not a special circumstance—is
sufficiently supported. If the conviction cannot stand, the
special circumstance will necessarily be vacated as well.
      In this case, the jury’s special circumstance finding was
affirmed in 1996, approximately two decades before Banks
and Clark were decided. No court has affirmed the special
circumstance finding post-Banks and Clark. We cannot
affirm the trial court’s ruling on this ground, as the People
urge.

           The Trial Court Erred in Summarily Denying the
           Petition Based on Its Evaluation of Facts Recited
           in the Record of Conviction

      Here, without appointing counsel to Smith or
permitting counsel to make a filing, the trial court reviewed
our 1996 appellate opinion and considered the facts as
described in our discussion of the sufficiency of the evidence
supporting the special circumstance. The trial court made a
determination that those facts were sufficient to establish
that Smith was a major participant in the underlying felony
and acted with reckless indifference to human life. But that
factual record is not the only consideration that the trial
court must take into account for purposes of section 1170.95.




                           15
Where the record of conviction does not preclude a petitioner
from making a prima facie showing that he falls within the
statute’s provisions as a matter of law, the petitioner is not
confined to presenting evidence contained in the record of
conviction in seeking relief. Section 1170.95 provides “the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet [his] burden[].”7 (§ 1170, subd.
(d)(3).) It is conceivable that Smith may be able to provide
evidence not presented at trial that would demonstrate
either that he was not a major participant in the robbery or
did not act with reckless indifference to human life. By
ruling prior to the appointment of counsel, the trial court
deprived Smith of the opportunity to develop, with the aid of
counsel, a factual record beyond the record of conviction.
Only after giving a petitioner the opportunity to file a reply,
in which he may develop a factual record beyond the record
of conviction, is a trial court in a position to evaluate
whether there has been a prima facie showing of entitlement
to relief.
       We therefore cannot conduct our own assessment of the
trial evidence to determine whether Smith was a major
participant and acted with reckless indifference to human
life, or to use that record evidence to inquire whether the
deprivation of counsel was harmless error, as our colleagues
in Division Two of the Fourth District did in People v. Terrell

     7 The prosecution is also permitted to rely on evidence
outside the record of conviction to meet its burden. (§ 1170,
subd. (d)(3).)



                           16
Law (Apr. 27, 2020, E072845) ___ Cal.App.5th ___ [2020 WL
2125716] (Law). The procedural posture in Law was similar
to the instant case. The trial court denied Law’s section
1170.95 petition prior to appointment of counsel on the basis
of a robbery-murder special circumstance true finding made
before our Supreme Court had issued its decisions in Banks
and Clark. (Law, supra, ___ Cal.App.5th ___ [2020 WL
2125716, p. 1].) On appeal from the denial of Law’s section
1170.95 petition, the appellate court held that the existence
of a pre-Banks and Clark special circumstances finding alone
did not preclude relief (a holding consistent with our ruling
here). Rather than remand the case to the trial court for
appointment of counsel, however, the Law court undertook
its own analysis of the existing record facts to affirm the
lower court’s summary dismissal of the petition. With
respect to appointment of counsel, the court held that,
regardless of whether Law was entitled to counsel, any error
was harmless, because counsel could not have obtained a
more favorable result, “[g]iven the trial evidence.” (Law,
supra, ___ Cal.App.5th ___ [2020 WL 2125716, pp. 5, 7].)
      We respectfully disagree with this reasoning. In
enacting Senate Bill 1437, the Legislature provided that a
petitioner may meet his or her burden by offering new or
additional evidence. Therefore, we cannot say at this stage
of the proceedings that failure to appoint counsel was
harmless “given the trial evidence”; by the express terms of
section 1170.95, subdivision (d)(3), counsel is not limited to
the trial evidence.




                           17
      Because neither of the trial court’s reasons for denying
Smith’s petition is valid, and it does not appear that he is
otherwise ineligible for relief as a matter of law as the
People argue, we reverse and remand the matter to the trial
court to appoint counsel and consider briefing.

                       DISPOSITION

      The trial court’s order denying Smith’s resentencing
petition is reversed and the matter remanded for the trial
court to appoint counsel and conduct further proceedings in
accordance with the terms of section 1170.95.



           MOOR, J.

     We concur:




           BAKER, Acting P. J.




           KIM, J.




                           18
