 Filed 3/26/20
                 CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                        DIVISION FIVE


 THE PEOPLE,                        B296179

        Plaintiff and Respondent,   (Los Angeles County
                                    Super. Ct. No. BA189759)
        v.

 ARTHUR TORRES,

        Defendant and Appellant.


      APPEAL from an order of the Superior Court of Los
 Angeles County, Bruce F. Marrs, Judge. Reversed and
 remanded.
      Joanna Rehm, 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, Amanda V.
 Lopez, Deputy Attorney General, Stephanie A. Miyoshi,
 Deputy Attorney General, for Plaintiff and Respondent.
                  _______________________

     In 2001, defendant and appellant Arthur Torres was
convicted of two counts of first degree murder (Pen. Code,
§ 187, subd. (a) [counts 11 & 12])1 under a felony murder
theory of liability, along with numerous other crimes
committed over the course of single day.2 As to counts 11


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

     2  Torres’s crime spree also resulted in convictions for a
third count of murder (§ 187, subd. (a) [count 18]), possession
of a firearm by a felon (§ 12021, subd. (a)(1) [count 1]),
assault with a firearm (§ 245, subd. (a)(2) [count 2]), two
counts of second degree robbery (§ 211 [counts 3 & 5]),
attempted carjacking (§§ 215, subd. (a), 664 [count 6]), four
counts of attempted second degree robbery (§§ 211, 664
[counts 7, 8, 9, & 10]), carjacking (§ 215 [count 13]), simple
kidnapping (§ 207, subd. (a) [count 14]), kidnapping for
carjacking (§ 209.5, subd. (a) [count 15]), and torture (§ 206
[count 17]). As to count 18, the jury found true the special
circumstances that the murder was committed during a
kidnapping (§ 190.2, subd. (a)(17)(B)) and that there were
multiple murders (§ 190.2, subd. (a)(3)). The jury found true
the allegations that Torres personally used a firearm as to
counts 2 (§ 12022.5, subd. (a)(1)) and 3 (§ 12022.53, subd.
(b)).
       Torres does not challenge his murder conviction in
count 18 in this appeal. Torres avers that he filed a petition
for resentencing with respect to count 18, which the trial
court failed to rule on. He is currently challenging the



                              2
and 12, the jury found true the special circumstance that the
murders were committed during the commission of a robbery
(§ 190.2, subd. (a)(17)). The jury also found true multiple
murder special circumstance allegations (§ 190.2, subd.
(a)(3)), as to both counts.
       In 2019, Torres petitioned for resentencing pursuant to
section 1170.95 and newly enacted Senate Bill No. 1437
(Senate Bill 1437), which “‘amend[s] 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).)” (People v.
Verdugo (2020) 44 Cal.App.5th 320, 325, review granted
Mar. 18, 2020, S260493 (Verdugo).)
       The trial court summarily denied the petition in a
written memorandum of decision that stated: “The petition
is summarily denied because the petitioner is not entitled to
relief as a matter of law, for the following reason: [¶] The
defendant was convicted of murder in counts 11 and 12, and
the special circumstance allegations of murder in the
commission of a robbery pursuant to Penal Code § 190.2(a)17
were found to be true. The defendant, thus, acted as a major
participant in the commission of the designated crimes and



conviction in that count in a writ of habeas corpus in federal
court. (Torres v. Madden (9th Cir.) No. 19-55018.)



                               3
acted with reckless indifference to human life [Penal Code
§ 189, subd. (e)(3)].”
      Torres appeals the trial court’s order. He contends
that the trial court exceeded its authority by reviewing the
record of conviction and summarily denying his section
1170.95 petition prior to appointment of counsel and
briefing.3 He further contends that, even if the trial court
were permitted to look beyond his petition at the eligibility
stage, he is not ineligible for relief on the basis of the jury’s
robbery murder special circumstances true findings.
      We disagree with Torres’s broad assertion that a trial
court may not summarily deny a petition on the basis of the
record of conviction prior to appointment of counsel and
briefing, but nevertheless reverse the trial court’s order in
this instance. The trial court here relied exclusively on the
jury’s 2001 special circumstances findings, which findings
alone are not sufficient to preclude relief in the wake of
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark). We remand the matter
to allow the trial court to determine whether Torres has
made a prima facie showing that he falls within the
provisions of section 1170.95. In making this determination,

     3 We grant Torres’s request for judicial notice, filed on
December 23, 2019, of a Judicial Council letter dated August
28, 2018, addressed to the Honorable Nancy Skinner
concerning Senate Bill 1437, and a Judicial Council letter
dated September 13, 2018, addressed to former Governor
Edmund G. Brown, Jr., also concerning Senate Bill 1437,
which were attached to Torres’s request as Exhibits 1 and 2.



                                4
the trial court may consider “readily available portions of the
record of conviction. ” (Verdugo, supra, 44 Cal.App.5th at
p. 323.) If Torres is potentially eligible for resentencing
pursuant to the statute, the trial court must appoint counsel
and order briefing.

                           FACTS

      The facts of Torres’s crime spree, carried out with his
co-defendant Nicholas Rodriguez, as recited in our
unpublished opinion, People v. Torres (Mar. 17, 2003,
B152866) [nonpub. opn.] at page *1, were as follows: “First,
at a La Puente car wash, Torres pointed a handgun at Paul
Nieto (Nieto), demanded Nieto’s money, and searched Nieto’s
pockets for additional items. Torres then passed the gun to
Rodriguez and took some personal items from Nieto’s car.
Torres attempted to start the car, but failed because Nieto
had activated the car’s ‘kill switch.’ Torres struck Nieto in
the head. Nieto heard someone call, ‘Waste him. Waste him,’
and Nieto fled.
      “Next, Torres and Rodriguez approached four young
men walking down a [sic] La Puente street. Brothers
Tommy and Christopher Garnica and their friends Sergio
Salcedo and Juan Gonzalez were on foot when Torres’s car
stopped alongside them. Rodriguez exited the car, pointed a
gun at the men, and demanded methamphetamine.
Rodriguez waved the gun, and as he did so, the clip fell from
the gun. As Christopher Garnica and Sergio Salcedo fled,




                              5
Rodriguez retrieved and reinserted the clip and shot both
Tommy Garnica and Juan Gonzalez to death. [Counts 11 &
12]
      “Later that evening, Torres and Rodriguez—now on
foot—flagged down a car in which Humberto Salas (Salas)
and Isabel Morales (Morales) were riding. When Salas
exited the car to talk with Torres and Rodriguez, the two
men severely beat Salas, smashed his head against the car,
and kicked him. Torres and Rodriguez then put Salas into
the back seat of the car and ordered Morales into the driver’s
seat. Torres sat in the front passenger seat of the car and
told Morales to drive. While Morales drove, in the back seat
Rodriguez continued to beat Salas and gouged out his eyes.
[Count 18] Torres displayed one of the eyeballs to Morales
before tossing it out the window. At a canyon area, Torres
and Rodriguez dumped Salas’s body. Returning to the car,
the men forced Morales to drive them back toward the area
where the encounter had begun. On the way, Torres and
Rodriguez saw police officers and fled from the car.”

                    SENATE BILL 1437

       “Senate Bill 1437 . . . amend[s] section 188, which
defines malice, and section 189, which defines the degrees of
murder, and as now amended, addresses felony murder
liability.” (People v. Martinez (2019) 31 Cal.App.5th 719, 723
(Martinez); accord, Verdugo, supra, at p. 325.) New section
188, subdivision (a)(3), provides, “Except as stated in




                              6
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.”
      Prior to the enactment of Senate Bill 1437, murder
committed in the perpetration of or attempt to perpetrate
specified felonies, including robbery, was first degree
murder. (Former § 189; People v. Powell (2018) 5 Cal.5th
921, 942 [““‘Under the felony-murder doctrine, when the
defendant or an accomplice kills someone during the
commission, or attempted commission, of an inherently
dangerous felony, the defendant is liable for either first or
second degree murder, depending on the felony
committed.’””].) Senate Bill 1437 also added section 189,
subdivision (e), which provides that “[a] participant in the
perpetration or attempted perpetration of a felony listed in
subdivision (a) 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.”
      The legislation also added section 1170.95, which
provides a procedure for people convicted of murder to
petition the trial court for retroactive relief if the changes in




                                7
the law affect their previously sustained convictions. (Sen.
Bill 1437 (2017–2018 Reg. Sess.) § 4.) Section 1170.95,
subdivision (a), provides, “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 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 Section
188 or 189 made effective January 1, 2019.”
       “[A] petition for relief must include: ‘(A) A declaration
by the petitioner that he or she is eligible for relief under
this section, based on all the requirements of subdivision (a).
[¶] (B) The superior court case number and year of the
petitioner’s conviction. [¶] (C) Whether the petitioner
requests the appointment of counsel.’ (§ 1170.95, subd.
(b)(1).) . . .
       “If any of the required information is missing and
cannot be readily ascertained by the court, ‘the court may
deny the petition without prejudice to the filing of another
petition and advise the petitioner that the matter cannot be




                               8
considered without the missing information.’ (§ 1170.95,
subd. (b)(2).)
      “If the petition contains all required information,
section 1170.95, subdivision (c), prescribes a two-step process
for the court to determine if 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.’
      “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 remaining counts. (§ 1170.95, subd. (d)(1).)
If the prosecutor does not stipulate to vacating the conviction
and resentencing the petitioner (§ 1170.95, subd. (d)(2)), the
People have the opportunity to present new and additional
evidence at the hearing to demonstrate the petitioner is not
entitled to resentencing. (§ 1170.95, subd. (d)(3).) The
petitioner also has the opportunity to present new or
additional evidence in support of the resentencing request.
(Ibid.)” (Verdugo, supra, 44 Cal.App.5th at p. 327,
fn. omitted.)




                              9
       “At the hearing to determine whether the petitioner is
entitled to relief, the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing. If the prosecution
fails to sustain its burden of proof, the prior conviction, and
any allegations and enhancements attached to the
conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (§ 1170.95, subd.
(d)(3)).
       “If there was 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, the court
shall vacate the petitioner’s conviction and resentence the
petitioner.” (§ 1170.95, subd. (d)(2).)

                        DISCUSSION

      Torres contends that, prior to appointment of counsel
and briefing, the trial court’s review of a section 1170.95
petition is for facial sufficiency only, and that it is not
permitted to consider materials outside of the petition—in
this case, the record of conviction—at the eligibility stage.
He argues that, having submitted a facially sufficient
petition in which he requested counsel, he was entitled to
appointment of counsel and briefing. Alternatively, he
asserts that even if the trial court were permitted to consider
the jury’s special circumstance findings at this stage, it erred
in finding him ineligible for relief, such that he was entitled




                               10
to appointment of counsel and briefing. We disagree with
Torres’s interpretation of section 1170.95’s petitioning
procedure, but reverse and remand because the trial court
erred in ruling Torres ineligible as a matter of law solely
based on the jury’s true findings on the robbery murder
special circumstances, made in 2001.

Section 1170.95’s Petitioning Procedure

       In Verdugo, supra, 44 Cal.App.5th 320, our colleagues
in Division Seven of the Second District of the Court of
Appeal clarified section 1170.95’s petitioning process. The
Verdugo court explained that subdivisions (b) and (c) of the
statute require the trial court to make three separate
determinations. (Verdugo, supra, 44 Cal.App.5th at pp. 327–
328.) Here, we are solely concerned with the inquiry
proscribed by subdivision (b), and the first of the two
inquiries set forth in subdivision (c)—i.e., whether the
petitioner has made a prima facie case that he falls within
section 1170.95’s provisions. We agree with the Verdugo
court’s well-reasoned analysis and elucidation of these two
steps, and therefore summarize them only briefly here:
      Under subdivision (b)(2), the trial court determines if
the petition is facially sufficient. (Verdugo, supra, 44
Cal.App.5th at pp. 327–328.) The trial court verifies that the
petition contains the basic information required under
subdivision (b)(1), and supplies any missing information that
can be “readily ascertained” (§ 1170.95, subd. (b)(2)).




                             11
(Verdugo, supra, at p. 328.) The reference to “readily
ascertained” information indicates the legislature’s intent
that the trial court consider reliable, accessible
information—specifically the record of conviction. (Id. at
pp. 329–330.) The trial court may deny the petition without
prejudice if the petition is not facially sufficient. (Id. at
p. 328.)
      If a petition is facially sufficient, then, under section
1170.95, subdivision (c), the trial court next determines
whether the petitioner has made “a prima facie showing that
the petitioner falls within the provisions of this section”.
The Verdugo court described this inquiry as “a preliminary
review of statutory eligibility for resentencing, a concept that
is a well-established part of the resentencing process under
Propositions 36 and 47.” (Verdugo, supra, 44 Cal.App.5th at
p. 329.) “The court’s role at this stage is simply to decide
whether the petitioner is ineligible for relief as a matter of
law, making all factual inferences in favor of the petitioner.”
(Ibid.) As in the subdivision (b)(2) inquiry, the trial court is
permitted to review information that is readily ascertained.
(Ibid.) Specifically, the Verdugo court held that the trial
court should review the record of conviction, and “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.” (Id. at pp. 329–330; accord, Lewis, supra, 43
Cal.App.5th at pp. 1138–1139 [superior court properly relied
on record of conviction showing he was convicted as direct




                              12
aider and abettor in determining he was not eligible for
relief].) If the trial court determines that the petitioner is
not ineligible for relief as a matter of law, it must appoint
counsel, if requested, and order briefing. (Verdugo, supra, 44
Cal.App.5th at p. 330.)
       Here, it is undisputed that Torres supplied all of the
information required under subdivision (b)(1) such that his
petition was facially sufficient. Torres declared he was
eligible for resentencing under all the requirements listed in
subdivision (a)(1); provided the case name and number; and
requested that counsel be appointed.
       This leads us to two questions in connection with the
trial court’s preliminary review of statutory eligibility for
resentencing under subdivision (c). The first—whether the
trial court properly considered the jury’s robbery murder
special circumstance findings when determining whether
Torres made a prima facie showing that he fell within
section 1170.95’s provisions—is easily resolved. The jury’s
findings are clearly contained in the record of conviction,
and, as the Verdugo court stated, should be considered when
determining whether a defendant is ineligible for relief as a
matter of law. (Verdugo, supra, 44 Cal.App.5th at pp. 329–
330.) The trial court did not err in this respect, and was not
required to appoint counsel prior to considering the jury
findings in making its preliminary determination of Torres’s
statutory eligibility for relief.
       The second question is whether the trial court erred in
ruling that Torres failed to make a prima facie showing that




                             13
he could no longer be convicted of murder because of changes
to Section 189 made effective on January 1, 2019. More
specifically, we must determine whether the trial court was
correct when it ruled that the existence of the jury’s 2001
robbery murder special circumstance findings alone
established that Torres 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”
(§ 189, subd. (e)(3)), as a matter of law, thereby barring him
from relief. We conclude that, based on the record before us,
the trial court erred, as the jury’s findings alone do not
render Torres ineligible for relief.
      As amended by Senate Bill 1437 and relevant here,
section 189, subdivision (e) provides “[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.”
Section 190.2, subdivision (d), in turn, 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
persons, and who is found guilty of murder in the first
degree therefor, shall be punished by death or imprisonment




                             14
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.” Section 190.2, subdivision (a)(17)(A) lists robbery in
violation of section 211 as a qualifying felony.
      Although the jury’s special circumstances findings
rendered in 2001 indicate that the jury concluded Torres was
a “major participant” who acted with “reckless indifference
to human life” in the murders of Garnica and Gonzales,
those jury findings alone do not preclude Torres from
showing today that he could not be convicted of first or
second degree murder as redefined by Senate Bill 1437.
Torres argues, and we agree, that our Supreme Court’s
decisions, clarifying 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,” construed section 190.2 in a significantly
different, and narrower manner than courts had previously
construed the statute. Both cases were decided over a
decade after the jury made its findings in Torres’s case.
Banks, supra, 61 Cal.4th 788, which elucidated the meaning
of “major participant,” was decided in 2015, and Clark,
supra, 63 Cal.4th 522, which addressed the meaning of
“reckless indifference to human life,” was decided in 2016.
Accordingly, in determining if Torres could be convicted
today of first-degree murder, we cannot simply defer to the
jury’s pre-Banks and Clark factual findings that Torres was
a major participant who acted with reckless indifference to




                               15
human life as those terms were interpreted at the time. As
we stated in In re Miller (2017) 14 Cal.App.5th 960 (Miller),
“[a] [d]efendant’s claim that the evidence presented against
him failed to support [a] robbery-murder special
circumstance [finding made prior to Banks and Clark] . . . is
not a ‘routine’ claim of insufficient evidence.” (Id. at
pp. 979–980.) The “claim does not require resolution of
disputed facts; the facts are a given.” (Id. at p. 980.) The
question is whether they are legally sufficient in light of
Banks and Clark. (Ibid.)
       By summarily denying Torres’s petition under section
1170.95 in the instant case, the trial court relied exclusively
on the jury’s special circumstances findings, treating those
findings as if they resolved key disputed facts, and gave no
alternative reason for ruling Torres was ineligible for
resentencing a matter of law. No court has affirmed the
special circumstances findings at issue post-Banks and
Clark.4 There is therefore a possibility that Torres was


     4  Torres filed a petition for habeas corpus with this
court on September 14, 2017, in which he asserted that the
true findings on the robbery murder special circumstances
must be vacated because he was not a major participant who
acted with reckless indifference to human life under Banks,
supra, 61 Cal.4th 788, and Clark, supra, 63 Cal.4th 522. We
denied the petition on the merits in an order filed on October
13, 2017. However, “the summary denial of a habeas corpus
petition does not establish law of the case and does not have
a res judicata effect in future proceedings.” (Gomez v.
Superior Court (2012) 54 Cal.4th 293, 305, fn. 6.)



                              16
punished for conduct that is not prohibited by section 190.2
as currently understood, in violation of Torres’s
constitutional right to due process. (See Miller, supra, 14
Cal.App.5th 960, 977 [federal due process guarantees
required reversal where evidence was not legally sufficient
to support robbery murder special circumstance].) It would
be unjust to permit a court to deny a petitioner relief on the
basis of facts that the jury did not necessarily find true, and
which may not be sufficiently supported by the record. We
conclude that the trial court erred in ruling that the pre-
Banks and Clark robbery murder special circumstance
findings preclude Torres from relief as a matter of law. We
therefore reverse, and remand to the trial court to determine
whether, considering readily available portions record of
conviction, Torres is otherwise ineligible for relief as a
matter of law, or is entitled to appointment of counsel and
briefing.




                              17
                     DISPOSITION

      We remand the matter for the trial court to determine
whether Torres has made a prima facie showing that he falls
within the provisions of section 1170.95. If it finds that
Torres is potentially eligible for resentencing pursuant to
section 1170.95, the trial court must appoint counsel and
order briefing.



          MOOR, J.

     We concur:




          RUBIN, P. J.




          KIM, J.




                            18
