People v. Nichols CA5 ( 2022 )

Filed 12/5/22 P. v. Nichols CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082672
Plaintiff and Respondent,
(Super. Ct. No. 1038145)
v.
TOMMY JACKSON NICHOLS, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from an order of the Superior Court of Stanislaus County. Thomas D.
Zeff, Judge.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian
Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Peña, J. and Snauffer, J.
INTRODUCTION
A jury convicted petitioner Tommy Jackson Nichols of first degree murder
(Pen. Code,1 § 187, subd. (a), count 1).2 (People v. Nichols et al. (June 29, 2010,
F055572 [nonpub. opn.] (Nichols I).) As to count 1, the jury found true the special
circumstance that petitioner committed the murder while engaged in the commission or
attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)). The trial court sentenced
petitioner on count 1 to a term of life without the possibility of parole. (People v. Nichols
(Mar. 13, 2012, F061963 [nonpub. opn.] (Nichols II).)
In 2019, petitioner filed a petition for resentencing on his murder conviction
pursuant to section 1172.6 (former § 1170.95).3 The trial court summarily denied the
petition finding petitioner was a major participant and acted with reckless indifference to
human life in the underlying felony, a disqualifying factor under the amended law.
On appeal, petitioner contends he established a prima facie case for entitlement of
relief because the special circumstance finding cannot establish his ineligibility for
resentencing as a matter of law, as his conviction predates our Supreme Court’s decisions
in Banks and Clark,4 which clarified the meaning of “major participant” and “reckless
indifference to human life.”
While petitioner’s appeal was pending, our Supreme Court held a pre-Banks and
Clark special circumstance finding does not render a section 1172.6 petitioner ineligible
for relief as a matter of law. (People v. Strong (2022) 13 Cal.5th 698 (Strong).)
1 All further statutory references are to the Penal Code unless otherwise specified.
2 Petitioner was convicted of additional offenses and enhancements, as described
below.
3 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no
change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the current section 1172.6 in
this opinion.
4 People v. Banks (2015) 61 Cal.4th 788; People v. Clark (2016) 63 Cal.4th 522.
2.
Therefore, based on Strong, we must vacate the trial court’s order and remand the matter
for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
We include a brief summary of the facts of this case taken from petitioner’s first
direct appeal.5
“The Homicide and Investigation
“In March 2002, Tatum and Jose ‘JoJo’ Ruiz lived with their two
children, eight-year-old Roshyla and five-year-old Ezra, in a house on … a
small cul-de-sac in Modesto. [Fn. omitted.] Ruiz was known to police as a
member of the West Side Boyz, a Norteno gang. He was also known as
one of the major distributors of base cocaine in west Modesto, and federal
authorities planned to serve a search warrant on his residence within a
matter of days. In the year or so before the events of this case, Ruiz
regularly bought cocaine by the kilo, cooked the cocaine and turned it into
rock form, and then sold the product mostly by the ounce. According to
Tatum, Ruiz did not sell drugs from their residence or keep more than small
amounts of cocaine there, although he sometimes prepared, cooked, or
packaged the drugs at the house. During the time period, he sometimes had
large sums of cash hidden in different parts of the house. There was a safe
with an electronic lock in the master bedroom closet. Ruiz usually did not
keep any money there, however; instead, he kept a Taurus nine-millimeter
semiautomatic pistol in the safe for protection.
“Phillip Collins and Ruiz had known each other since about the third
grade and, at the time of Ruiz’s death, were, according to Collins, ‘pretty
much best friends.’ Tatum was acquainted with Collins and was aware that
he and Ruiz were in the drug business together. Tatum felt Collins could
potentially be a backstabber to Ruiz.
“In July 2000, Collins, having twice sold crack cocaine to an
undercover officer and informant, was given the option of getting eight to
10 years in prison or turning in his friend. He chose to turn in his friend
and, to that end, signed a contract with the Modesto Police Department that
was approved by the district attorney’s office. Pursuant to the agreement,
5 We provide these facts from the direct appeal because they were cited by
petitioner in his opening brief. However, we do not rely on these facts in resolving the
issues presented in this appeal. (See § 1172.6, subd. (d)(3).)
3.
Collins was required to buy drugs from Ruiz, Ruiz’s brother Javier Ruiz,
and another individual in controlled settings, and to testify as needed, in
return for which he would plead guilty to one count of selling drugs, and be
sentenced to local time and three years’ probation. He was required to obey
all laws and make all court appearances, and to keep Modesto Police
Sergeant Helton advised of his residence and whereabouts. Helton would
contact Collins when a purchase was to be made, then tell him from whom
to make the buy. Collins would then arrange the deal, buy the drugs, and
give the drugs to the police. He was wired for sound during the
transactions, and the police gave him money to make the purchases.
“Under the supervision of Helton and FBI Agent Tim Hammond,
Collins made approximately 20 controlled buys from Ruiz or his associates.
[Fn. omitted.] The quantities purchased ranged from an ounce to a quarter
kilo. Helton considered Collins very reliable and one of the better
informants with whom Helton had worked. Federal grand jury indictments
were obtained in February 2002, and served in March, with the prosecution
of Ruiz’s associates concluding in late spring 2003, when they all pled
guilty in federal court. [Fn. omitted.] According to Helton, Collins would
not have been privy to the status of the investigation and would not have
been told when arrests and indictments were imminent. He was not to
receive any consideration for his participation in the case concerning the
Ruiz homicide. Ultimately, Collins never pled guilty to anything or served
time in jail, and was told he would not be prosecuted on his case. [Fn.
omitted.]
“In 2002, Collins was acquainted with Trice (known to him as
Roach), knew of [petitioner] (known as Bam or Bam Bam), and came into
contact with Dean (known as J Dogg). Collins, who had suffered two
felony convictions prior to 2002 and been sent to the California
Rehabilitation Center (CRC) for one, had gotten to know Trice during the
13 months both were at CRC. During the time Collins was at CRC, Blood,
Crip, and Sureno gang members were there. The Bloods wore red and the
Crips wore blue. Trice, who was from the Pasadena Denver Lane Bloods
(PDL) and had ‘Pasadena’ and ‘DL’ tattoos, mostly associated with those
wearing red, and Collins saw him ‘throw[]’ a Blood sign with his hands.
Bobby Blueford was also in CRC with Collins and Trice.
“As CRC’s inmates were all there for drug offenses, they sometimes
bragged about the drug crimes they committed or the great connections
they had. Collins did so with PDL members. He let Trice and Blueford
know that if they were ever in his area, he had a good drug connection in
Modesto. He probably told them that he had his main connection, and that
4.
the person was his Mexican partner. [Fn. omitted.] He also probably
talked about the quality of the drugs the man had, that the man was able to
get as much as they wanted or needed, and that he would sell it to Collins
for a fair price. Collins was talking about Ruiz, but he did not believe he
ever mentioned the name to any of the PDL members.
“While in CRC, Collins and Trice associated on a daily basis. After
they got out of CRC, they ran into each other in Merced, where Trice had
family. This was a couple of years before Ruiz was killed. Collins
observed Trice making hand-to-hand drug sales. Whenever Trice was
coming to Merced from Pasadena, he would give Collins a call and they
would get together.
“The week before the weekend of Ruiz’s murder, Trice called
Collins at Collins’s home in Atwater and said he was coming down for the
weekend and would call when he got into town. Trice came by Collins’s
house sometime on Friday. Blueford, Dean, and [petitioner] were with
him. They arrived in a silver … [c]ar. The car looked new, and one of
them said it was a rental. After some general conversation, the topic turned
to drugs. Collins mostly spoke with Trice, who wanted to know how and
where to get a quarter kilo of rock cocaine. Trice asked Collins several
times that day to hook him up with someone who had that much. [Fn.
omitted.] Trice asked Collins if Collins could hook them up with Collins’s
‘Mexican homeboy,’ the connection about whom Collins had talked while
in CRC. Trice kept asking when they could go get it and how much it
would cost. Collins knew that under the terms of his contract with the
police department, the whole deal could be off if he broke the law or sold
drugs, so he knew he could not set up the contact. He told Trice he would
hook them ([the co-defendants, petitioner] and Blueford) up and to give
him a call the next day or the day after, but he was just playing Trice. He
was drinking at the time, however, and told [the co-defendants, petitioner]
and Blueford that his connection had a lot of drugs stashed and a lot of
money, and the kind and color of his car. [Fn. omitted.] Helton had
contact with Collins late Friday morning; Collins said nothing about
knowing of people who were trying to make buys from Ruiz, even though
he was under an obligation to notify Helton anytime there was a possible
sale of drugs involving Ruiz. Likewise, Collins did not contact Hammond,
his federal handler, although he knew Hammond would be very interested.
5.
“Berenice S[.]6 lived on Hasley Drive, across the street from the
Ruiz home. One or two days before Sunday, March 3, a black, lowered
Chevrolet pickup truck drove slowly by and then stopped briefly on Hasley.
Its two occupants looked at the Ruiz house. A little while later, another
vehicle—a newer, possibly four-door, light-colored or grayish or white
[car] with tinted windows—did the same thing, although this one stopped
around the corner. [Fn. omitted.] This was odd, because usually someone
turning into the cul-de-sac by mistake would just drive on around in a
[u]-turn and go back out.
“On Saturday, Collins was at a wedding, but caller identification
records on his phone showed that Trice called several times during the day.
Collins called him back at least once and said he was busy that day and
would call Trice back. Trice was calling too much, ‘bugging’ Collins about
drug sales. Collins did not know whether Trice called on Sunday; it was
Collins’s daughter’s birthday, and Collins was away from home all day.
“Around 8:00 p.m. on Sunday, March 3, Tatum, Roshyla, and Ezra
had dinner. Ruiz, who had been receiving a lot of calls on his cell phone
before he went out for a while, was not home, although Tatum telephoned
him during dinner and asked him to bring something from the market.
After the meal, the children went to the bathroom to take a bath. About
15 minutes after she had talked to Ruiz, Tatum was cleaning up in the
kitchen when she heard the front door open and close. There was a
moment of silence, then Tatum heard Ruiz call her name in an urgent tone
of voice and tell her to get down. She turned to look and saw him on the
ground between the entryway and the kitchen. Two people were holding
him by the back of his shirt and pointing guns at him. One was Dean.
Another person—Trice—came around the corner with a black revolver
pointed at Tatum and told her to get down. [Petitioner] was the third
person she saw. He was holding a black gun that was the biggest of the
guns she saw. He pointed it at Ruiz.
“Tatum got down on the floor, but was still looking at the intruders.
She and Ruiz both started begging them not to let the children see what was
happening. One or more of the intruders were telling them to put their
heads down and not look at them. Tatum was still looking at Trice, and he
told her, ‘ “Bit**, put your head down.” ’ When she objected to him
calling her a bit**, he said it again and jabbed the gun toward her eye and
told her again to put her head down. At some point during this time, one or
6 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their
first names. No disrespect is intended.
6.
more of the intruders said something to the effect that they just wanted the
stash. Tatum interpreted this to mean they wanted money or drugs.
“Dean told Trice to take Tatum to find the children. Trice walked
her out of the kitchen and through the dining room. For reasons unknown
to her, there was a pause, during which she stood in the dining area,
between the dining and the living room area, for a moment. She saw
someone walking down the stairs from the entryway. [Fn. omitted.]
Another person was standing in the dining area. At this point, she believed
there were four intruders, total, in the house. [Fn. omitted.] One or
two were wearing a black beanie or cap with a red emblem on it. The hair
that was not covered was either curls or braids. The other two were bare-
headed and their hair was also either in braids or curls. Dean had the
longest hair.
“Up until this point, Trice had been watching over Tatum. At some
point, there was a transition in who was watching her. She thought it might
have occurred during the pause, but was not certain. Tatum believed Trice
then went toward Ruiz, but she did not see what he did. At some point, she
saw [petitioner] direct the gun at Ruiz.
“Meanwhile, the children had disrobed but, before they could bathe,
Ezra told Roshyla that their father’s friends were there. Roshyla went to
see who they were. She saw around three African-American men coming
through the door. The intruders were wearing black clothing and some
were wearing beanies. One of the men had black hair done in
shoulder-length braids. His face was skinny or bony, his nose was long and
pointy, and his teeth protruded from his mouth. Roshyla subsequently
identified this man, through a photographic lineup and at trial, as Dean.
“Roshyla went back into the bathroom. She and Ezra were about to
get into the bathtub when Dean entered the bedroom. He did not say or do
anything, but went back out and then returned with Tatum. He had a gun to
the back of Tatum’s head and was holding one or both of her arms behind
her back. He told her to get clothes for the children, so she and he left the
room and returned with clothing that had been in the laundry room. Tatum,
who was acting rushed, got the children dressed.
“According to Tatum, the man who was with her at this time—
Dean—was the person who was in charge of her after the transition. He
was with her the entire time she was in the bathroom. At one point, he took
his eyes off her and started looking around the bedroom. There was some
jewelry on a dresser on the other side of the room, and he walked toward it.
[Fn. omitted.] Tatum’s purse was on the bed. Thinking it contained her
7.
cell phone, she went to grab it, but Dean saw her, pointed the gun at her,
and told her to put the purse down. She threw the purse back onto the bed.
She later discovered that her cell phone was missing. She could not recall
if she recovered it.
“Around this time, Trice and [petitioner], who was wearing a light
blue shirt, forced Ruiz to walk through the bedroom to the walk-in closet.
Both had guns. The closet door opened inward into the closet; the safe was
behind the door. The closet door was half open, and Tatum could see the
back of [petitioner]’s light blue shirt. She then heard gunshots, probably at
least three initially. She started screaming, ‘ “No,” ’ and saw Dean go to
the closet door and start shooting inside the closet at a downward angle. He
fired a few shots, then paused. Tatum witnessed at least four shots going
into the closet door. There were other shots still going off behind the door.
She was screaming and crying and wanting to save the children, so she ran
to the bathroom, opened the window and broke off the screen, then boosted
Roshyla up so she could climb out the window, and told her to run to the
neighbor’s house and tell them to call 911. Tatum then tried to pick Ezra
up and put him through the window, but he was screaming and so scared
that he would not let her push him out. She told him to stay where he was,
and by this time, the gunshots had stopped. Tatum believed she heard
between five and 10 shots.
“Meanwhile, as Roshyla was running to the neighbor’s house, she
saw two of the intruders trying to leave by going over the chain-link fence
next to the Ruiz house. One said to the other—Dean—that they had to get
out of there, then he said a name that started with either R-A or R-O.
Another intruder ran out of the garage, and Ruiz crawled out of the house
like he was chasing the man. Roshyla did not stop to look at him, but kept
running to the neighbor’s house across the street. When the woman
answered the door, Roshyla said she thought her dad got shot, and then they
called the police.
“After the gunshots stopped, Tatum walked into the bedroom and
did not see anyone. She then walked to the closet, but did not see anyone
there, either. There was blood everywhere, however, and Ruiz’s gun was
on the closet floor. Although it appeared to have malfunctioned, she
grabbed it anyway and followed the blood trail through the bedroom, down
the hallway, and into the garage. She saw Ruiz on his hands and knees and
ran out to him. He was spitting out blood and gasping for air. Tatum was
screaming and told him to hang on, then ran back inside to get Ezra and a
phone. She was talking to the 911 operator when she got back to Ruiz, and
when she saw he was already lying still, she threw down the phone and
8.
rolled him onto his back. When a neighbor ran over to see what had
happened, Tatum screamed that Ruiz had been shot. She then began
performing CPR.
“Modesto police were dispatched to the Ruiz residence at
approximately 8:14 p.m. They arrived within minutes to find Ruiz down in
the driveway, with a … nine-millimeter semiautomatic handgun lying next
to him. The gun, which had a 15-round magazine in it, appeared to have
malfunctioned, as the slide was partially back and a round was sticking out
of the ejection port. [Fn. omitted.] Tatum was performing CPR on Ruiz,
who had been shot and was bleeding profusely. Blood was trailing from
him down the driveway, and it appeared that someone had made tracks
through it. There was an odor of freshly burnt gunpowder in the house.
“Modesto Police Officer Garcia spoke to Tatum at the scene. She
described one of the perpetrators (none of whom she could identify by
name) as a Black male adult in his mid- to late 20’s, five feet seven inches
and 170 pounds, and wearing a black beanie cap with hair sticking out of it.
She said he was light-skinned and had a rough complexion, and horse teeth
with big lips. He was wearing a black shirt or sweatshirt. She said this
person shot into the closet door. She described a second perpetrator as a
Black male adult in his early 30’s, five feet eight inches tall and
230 pounds, with black hair in Jeri curls or braids, possibly collar-length.
He was light-skinned and had a chubby, round face, and was wearing a blue
jersey and possibly blue jeans. She said he walked into the dining room
when the suspects came into the home. Tatum described the
third perpetrator as a Black male adult in his mid- to late 20’s, five feet
nine inches tall and approximately 170 pounds, with short black hair and
dark skin. She said he was wearing a black sweatshirt and was armed with
a handgun, and that he pointed a gun in her face in the kitchen. The
fourth perpetrator was a Black male adult in his late 20’s or early 30’s.
Tatum had no further description of him. She informed Garcia that after
she put Roshyla out the bathroom window, she saw the man who shot into
the closet walk northbound past that window. [Fn. omitted.]
“Police searched the area in and around the Ruiz home shortly after
the shooting. Entry to the house did not appear to have been forced; the
front door was partially open and a set of keys was in the lock. In the
hallway that led from the garage into the house and ultimately to the master
bedroom, officers found two aluminum-colored … .380-caliber shell
casings, bloodstains, and bloody handprints on the carpet. Inside the master
bedroom itself were three more of the expended .380 shell casings. There
were also bullet holes in various places in the room, and several expended
9.
copper-jacketed bullets were recovered. From the four bullet holes in the
door of the master bedroom closet and associated gunshot residue, it was
possible to ascertain that those shots were fired from the outside of the
closet door inward. All four were fired in a downward, almost 45-degree
angle. In the closet was an expended nine-millimeter shell casing that was
believed to have been associated with the gun found by Ruiz’s body. Also
in the closet was a small safe with an electronic lock. The door was open
and some of the contents were spilled out onto the floor. The trajectory of
the bullets shot through the closet door was toward the general area of the
safe. There were bloodstains in various places in the room. There was also
blood in the closet, although not a lot. Bloodstain samples taken from the
master bedroom were Ruiz’s blood. The blood evidence essentially
traveled a path from the master bedroom closet, through the area of the foot
of the bed, down the hallway, to the garage, and to where Ruiz’s body was
located. Two dressers in the room contained cash in the amounts of $8,083
and $8,400. A box of .40-caliber ammunition was found in the master
bedroom. It was the only box of ammunition found in the house. The box,
which should have contained fifty .40-caliber rounds, contained forty-nine
.40-caliber cartridges and one 9-millimeter round.
“On the living room floor was a red-and-black knit cap with
‘California’ embroidered on the front. It seemed out of place, since the rest
of the house was fairly neat. On the floor of the dining room were a Nokia
cell phone in its holder and four plastic zip ties that also seemed out of
place.
“The screen on the window of the master bedroom’s bathroom was
partially torn. Three shampoo bottles were on the ground underneath the
window. A trail of items that appeared to have been taken from the house
led to a hole that had recently been cut in the chain-link fence on the
property line. Additional items and footprints led in a northerly direction.
In a field directly north of the Ruiz residence, close to Woodland Avenue,
officers located a black … .22-caliber nine-shot rimfire revolver. At trial,
Tatum identified this gun as looking similar to the one Trice pointed at her.
Ruiz’s blood was on the gun’s cylinder. Footprint impressions in the grass
and weeds indicated someone had recently run across the corner of the
property. The direction of the footprints was northwest, toward Bennett
Lane. A black-colored … .357 Magnum revolver containing six expended
shell casings was found underneath a bush in the front yard of a house on
Bennett. The lack of condensation, cobwebs, and dust on the gun indicated
it had not been there long. At trial, Tatum identified this gun as looking
like the one the fourth intruder (who was not present at trial) had. The trail
10.
of evidence was consistent with a getaway car being parked about a block
from the Ruiz house.
“Detective Brocchini went to the crime scene on the night of the
shooting and spoke to Andre R[.] Andre … related that a neighbor said he
heard the shooting, then saw an older Black male adult with a short Afro
haircut, in an orange, primered minivan, begin to honk his horn. The
neighbor said he then saw two Black subjects run from the area around the
Ruiz residence to the minivan, and then the minivan drove off. The
neighbor also mentioned something about a black or new [car]. Brocchini’s
attempts to track down the person who actually made the statements were
unsuccessful.
“Meanwhile, according to Collins, he returned home sometime after
dark on Sunday. He and his wife were relaxing when they heard a bang on
the door. [Petitioner] and Dean were there. [Petitioner] said something to
the effect that Trice had been shot crossing the street across from the gas
station near Collins’s house. They said they had dropped him off down the
street at some girl’s house. Dean said they could not leave their homeboy
and asked how to get to the freeway. Collins gave him directions.
[Petitioner], the more aggressive of the two, told Collins that they knew
where he lived, and that if anyone came by asking questions, Collins was to
say Trice got shot crossing the street. Collins could see the handle of a
pistol tucked in the front of [petitioner]’s pants. [Petitioner] and Dean were
at Collins’s house for about 10 to 20 minutes, then left. Collins could not
tell whether anyone else was in their car. While they were there, Helton
telephoned with the news that Ruiz had been shot.
“Helton telephoned Collins at about 9:00 p.m. He told Collins to
call him if Collins heard anything. According to Helton, Collins called him
back about 11:00 that night and said he had received several calls from
people, advising him of Ruiz’s death. Collins said nothing about anyone
named Roach, Bam, or J Dogg. [Fn. omitted.]
“Just after 9:00 p.m. on March 3, Atwater Police Officer Ridenour
responded to an address in Atwater in response to a report of a shooting.
He came in contact with a person who identified himself as Keith (not
Kevin) Trice, and who had gunshot wounds to his back and lower
abdomen. [Fn. omitted.] Because there was no trauma center in Merced
County, standard procedure was to airlift Trice to Modesto. When told this
would happen, Trice immediately and adamantly responded that he did not
want to go to Modesto. Medical personnel explained that there were no
other options. Ridenour questioned Trice in the ambulance on the way to
the airfield. Trice did not answer some of Ridenour’s questions, although
11.
he did say that he did not know who shot him; that the person or persons
were in a vehicle, but he did not know whether it was a car or a truck; and
that he had been going to the store. Trice was similarly vague when
questioned by a doctor at the hospital, adding little more than that he was
from Los Angeles and had been down for three days, visiting a Sonjia in
Atwater or Merced. Atwater police were unable to find any witnesses to a
shooting or any physical evidence that one had occurred in the area.
“Modesto Police Detectives Grogan and Blake interviewed Trice [at]
about 1:40 p.m. on March 4. Trice related that he had been in Atwater,
visiting a friend named Sonjia G[.], and was walking from her house to a
store to purchase some alcohol, when he was the victim of a drive-by
shooting. He said the car was dark and that he believed he was shot by
someone sitting in the front passenger seat. Trice said he was bleeding
profusely, and it took him some time to gather the strength to walk back to
the apartment.
“During the interview, Trice asked if he could use one of the
detectives’ phones to call his mother. After the interview ended, Blake
allowed him to use his cell phone. Once he got connected, Trice said,
‘Mom, I got shot yesterday in Modesto.’ This was said as one complete
sentence, without any gaps, although Grogan could not hear what, if
anything, Trice’s mother said or asked. [Fn. omitted.] Grogan
subsequently obtained items of evidence from the Atwater Police
Department and Sonjia[]’s house, including an expired driver’s license for
Keith Lamont Trice (Trice’s twin brother) and a pair of brown pants that
had Trice’s blood on them. He measured the distance and travel time
between the crime scene in Modesto and [Sonjia]’s residence in Atwater,
and determined it was possible for Trice to have left the scene in Modesto
and gone to the address in Atwater between the homicide and when he
placed the call for assistance.
“Brocchini was assigned to research Trice. After talking to Trice’s
girlfriend and family, Brocchini put together a list of associates who
matched the description of the suspects. He had photographic lineups made
of those people, as well as Trice, and gave them to Detective Blake. Upon
learning from Blake that the names Brocchini gave him were not identified,
Brocchini continued to investigate and came up with [petitioner] as a
possible suspect. He put together a photographic lineup of [petitioner] and
gave it to Blake and Detective Owen.
“Brocchini telephoned Collins the morning after the shooting. He
was aware that Collins knew Ruiz and was working for Helton and the FBI.
He wanted to know if Collins knew Trice, since Collins lived in Atwater
12.
and Trice had been found there. When Brocchini asked whether Collins
knew Trice, to whom Brocchini referred by that name, Collins said no.
However, Collins contacted Helton later that morning and told him that he
thought something was going on. As a result, Helton and Hammond
interviewed him that afternoon. Collins provided descriptions of Bam,
Roach, and J Dogg. He said they had told him they had $5,000 and wanted
to buy a quarter kilo, and that they would give him $500 to set up the buy.
He later identified pictures of [the co-defendants, petitioner] and Blueford
from photographic lineups.
“Brocchini spoke to Tatum the afternoon after the shooting. When
he asked if it was possible Ruiz had gone to meet somebody at the …
minimart for the purpose of selling drugs, she said yes and agreed that
whomever Ruiz spoke to in his last cell phone call could have had
something to do with the incident. The caller log for Ruiz’s cell phone
showed that at 7:47 p.m. on the night of his death, he received a call from a
cell phone associated with Dupree H[.], a Blood gang member who had
been to prison. The last call Ruiz received, which was made at 7:59 p.m.
that night, was from a cell phone associated with Thomas “Bird” W[.],
another Blood member in Modesto, who dealt cocaine and had also been to
prison. Brocchini asked around about their possible involvement; the only
information he was able to obtain was that the last couple of phone calls to
Ruiz were from phones associated with them.
“On March 5, Brocchini contacted a parole agent working for a
fugitive task force in Los Angeles and directed him to find and arrest
[petitioner]. [Petitioner] was arrested that day in Pasadena. A black beanie
was seized in a search of his house. The next day, Brocchini contacted
Officer Roldan of the Pasadena Police Department, who was known to him
as an expert in the Black criminal street gangs of Pasadena, and asked for
help in identifying J Dogg and B Dogg. Brocchini got these names from
Collins, who said that Bam Bam, B Dogg, J Dogg, and Roach had come by.
Roldan researched J Dogg, and obtained enough information through an
anonymous telephone call to figure out who this person was. As a result,
Dean’s photograph was obtained. Roldan and Brocchini, who had gone to
Pasadena on March 7, put together a photographic lineup and e-mailed it to
Detective Blake in Modesto. Half an hour later, Blake informed Brocchini
that Tatum and Roshyla had identified Dean as a suspect. As a result, Dean
was arrested at his home.
“After Dean’s arrest, Brocchini continued his search for the … [c]ar.
Following receipt of a tip, he went to a … [car rental] place and learned that
a car rented to Tricia L[.] was at a rental yard at the airport in Burbank. He
13.
went to the airport and saw what looked like blood in the car’s back seat.
Brocchini had the car impounded and processed for evidence. [Fn.
omitted.] Trice’s blood was in the back seat. [Petitioner]’s palm print was
found on the driver’s side hood. [Fn. omitted.]
“Tricia [] rented the [car] on a Friday in February 2002, as her
vehicle was scheduled to be serviced. Her plan was to rent the [car] for the
weekend and return it on Monday. Trice was with her when she rented the
car. [Tricia] ended up not taking her car to get serviced, and at some point
on Friday, Trice asked to use the [rental car]. He was going to come back
during the weekend. When [Tricia] got off work that Friday, she went to
Trice’s mother’s house in Altadena. The car was still there. Trice had her
permission to use it Saturday. The next day, [Tricia] attended a birthday
party for Trice’s nephew. She expected to see Trice there at some point,
but did not. She unsuccessfully tried to page him during the weekend to
remind him that the car needed to be back on Monday. On Monday
morning, she received a call from Blueford, saying he had the rental car and
so she could take it back and return it. She asked where Trice was, but he
said he did not know.
“On March 14, Brocchini listened to some telephone calls at the
Stanislaus County jail. In one, Dean told his mother and sister to contact a
lady he identified as JP’s sister, and for whom he gave a telephone number.
He wanted his mother and sister to make sure the lady said that Dean was
dropped off at her house on Friday and was not picked up until after the
weekend. As a result of information contained in the call, Brocchini
contacted Lisa Y[.]
“[Lisa] testified that Dean telephoned her on the Friday of the
weekend of the homicide. Dean said he was in Modesto and wanted to visit
her. She explained that she was going to be going out of town and would
not be back until Sunday. At the time, [Lisa] lived in Fresno. Dean had
visited her before and had brought Trice with him. She did not see Dean on
the weekend of the homicide. Later, after [Lisa] had spoken to Brocchini
and declined to say whether Dean had been with her, Dean’s sister
telephoned [Lisa] and said there was a message from Dean that he wanted
[Lisa] to say he was with her that weekend.
“On November 24, 2002, Herbert B[.], who lived on Walker Avenue
approximately half a mile north of Woodland, reported finding a …
.380 semiautomatic handgun underneath the empty engine compartment of
a [car] that he was preparing to take to the junkyard. The [car] had been in
a field next to [Herbert]’s house for months. The gun, which was rusted,
14.
had an empty clip in it and a live round in the chamber. At trial, Tatum
identified this gun as being similar to the one Dean had.
“Ruiz was shot at least nine times and sustained five fatal wounds.
Stippling indicated that at least two of the shots were fired from close
range. Death resulted from shock and hemorrhage due to multiple gunshot
wounds. Four .22-caliber bullets from rimfire cartridges were recovered
from his body during the autopsy. Although there was insufficient
individual detail to definitively identify them as having been fired from the
same gun, test firing showed that they could have been fired from the …
revolver recovered in this case. The nine-millimeter cartridge case found in
the closet was fired by the … nine-millimeter pistol. That pistol would not
shoot a .40-caliber bullet; as the bullet would be too big for the chamber,
the gun would not load itself and would jam. A nine-millimeter and
.40-caliber cartridge are readily distinguishable because of their different
diameters and weights. The condition of the … .380-caliber semiautomatic
pistol was consistent with it being outside in a field for six to eight months
or more, and the chamber and barrel were very corroded. The pistol was
rusted shut, and a … live round had to be forcibly removed from the
chamber. This unfired round was the same caliber, and from the same
manufacturer, as an expended cartridge from the homicide scene that was
submitted for comparison, but results were inconclusive as to whether the
expended cartridge had been fired from the [.380-caliber pistol].”
(Nichols I, supra, F055572.)
The Stanislaus County District Attorney filed a consolidated amended information
charging petitioner with premediated first degree murder (§§ 187, subd. (a), 189, count 1)
with the special circumstances that petitioner intentionally committed the murder while
an active participant in a criminal street gang, that the murder was carried out to further
the activities of the gang (§ 190.2, subd. (a)(22)) and that the murder was committed
during the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)(A));
kidnapping (§ 207, subd. (a), count 2); two counts of first degree residential robbery
(§ 212.5, counts 3 & 4); and two counts of felony false imprisonment (§ 236, counts 5 &
6). All six counts included multiple firearm enhancements (§§ 12022.5, subd. (a),
12022.53, subds. (b), (c), (d), & (e)(1)) and a gang enhancement (§ 186.22, subd. (b)(1)).
It was also alleged petitioner suffered two prior serious felony convictions that were also
15.
strikes (§§ 667, subds. (a)(1), (b)–(i), 1170.12, subds. (a)–(d)) and that he served
three prior prison terms (§ 667.5, subd. (b)). (Nichols I, supra, F055572.)
Subsequently, a jury convicted petitioner of first degree murder (§ 187, subd. (a),
count 1), two counts of first degree residential robbery (§ 212.5, counts 3 & 4),
two counts of felony false imprisonment (§ 236, counts 5 & 6) and found true the robbery
special circumstance (§ 190.2, subd. (a)(17)(A)), along with the firearm (§§ 12022.5,
subd. (a), 12022.53, subds. (b), (c), (d), & (e)(1)) and gang (§186.22, subd. (b)(1))
enhancements.7 In a bifurcated court trial, the trial court found true that petitioner had
suffered two prior serious felony convictions that were also strikes (§§ 667, subds. (a)(1),
(b)–(i), 1170.12, subds. (a)–(d)) and found true the prior prison term allegations (§ 667.5,
subd. (b)).8 (Nichols II, supra, F061963.)
Petitioner then filed a motion for a new trial. After conducting an evidentiary
hearing, the trial court struck all gang enhancements, but otherwise denied the motion.
Petitioner was then sentenced on count 1 to a term of life in prison without the possibility
of parole, plus a consecutive term of 25 years to life for the firearm enhancement, and a
consecutive 10-year term for the prior serious felony convictions. The trial court stayed
the sentence on count 3 pursuant to section 654. As to count 4, the trial court imposed a
concurrent term of 25 years to life with an additional term of 25 years to life for the
firearm enhancement. As to count 5, the trial court imposed an additional concurrent
term of 25 years to life with a term of one year, four months for the firearm enhancement.
7 During the jury trial, the People dismissed count 2 (§ 207, subd. (a)), as well as the
premeditation allegation (§ 189) and street gang special circumstance (§ 190.2,
subd. (a)(22)) as alleged in count 1. (Nichols I, supra, F055572.)
8 Section 1171.1, subdivision (a) states “[a]ny sentence enhancement that was
imposed prior to January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except
for any enhancement imposed for a prior conviction for a sexually violent offense … is
legally invalid.” Petitioner did not raise the applicability of this provision to his sentence
in the trial court, and we will not address this issue in the opinion. However, petitioner
retains any remedies to address this in the future.
16.
As to count 6, the trial court imposed an additional concurrent term of 25 years to life
with a term of one year, four months for the firearm enhancement. (Nichols II, supra,
F061963.)
In petitioner’s first direct appeal, this court reversed the section 12022.53,
subdivision (c) and (d) enhancements, as to counts 1, 3, and 4, for insufficiency of the
evidence, and ordered that sentence be imposed on the section 12022.53, subdivision (b)
enhancements that were alleged and found true as to those same counts. This court also
struck a restitution order to the City of Modesto. This court otherwise affirmed
petitioner’s convictions, but vacated the sentence and directed the trial court to sentence
petitioner in accordance with the views expressed in the opinion. (Nichols I, supra,
F055572.)
In 2012, petitioner filed a second direct appeal following his resentencing. This
court struck a parole revocation restitution fine and affirmed the judgment as so modified.
This court also directed the trial court to prepare an amended abstract of judgment that
(1) deleted the restitution order to the City of Modesto; (2) deleted the parole revocation
restitution fine (§1202.45); (3) reflected petitioner’s receipt of 3,269 actual days of
custody credit; and (4) reflected the imposition of a 10-year term for the firearm
enhancement as to count 4. (Nichols II, supra, F061963.)
On March 19, 2019, petitioner, in propria persona, filed a petition for resentencing
on his murder conviction pursuant to section 1172.6. In the form petition, petitioner
stated a complaint, information, or indictment was filed against him that allowed him to
be prosecuted under a theory of felony murder or murder under the natural and probable
consequences doctrine; he was convicted of first or second degree murder at trial; and he
could not now be convicted of first or second degree murder because of changes made to
sections 188 and 189, effective January 1, 2019. Petitioner also requested the court
appoint counsel during the resentencing process. Petitioner further stated he was not the
actual killer; he did not, with the intent to kill, aid, abet, counsel, command, induce,
17.
solicit, request, or assist the actual killer in the commission of murder in the first degree;
or that he was not a major participant in the felony or did not act with reckless
indifference to human life during the course of the crime or felony. Lastly, petitioner
stated the murder victim was not a peace officer acting in the performance of his or her
duties.
On May 16, 2019, the People filed a response and motion to dismiss the petition
on the grounds (1) petitioner failed to make a prima facie case; (2) the doctrine of
collateral estoppel bars petitioner from challenging his conviction; and (3) Senate Bill
No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) is unconstitutional on various
grounds.
The trial court appointed the Public Defender’s office to represent petitioner.
Subsequently, the Public Defender’s office declared a conflict and new counsel was
appointed.
On December 18, 2020, the People filed a supplemental response to the petition
for resentencing arguing that petitioner cannot make a prima facie showing of entitlement
to relief because he could still be convicted of first degree murder under the amended law
either as the actual killer, a direct aider and abettor to the murder, or as a major
participant who acted with reckless indifference to human life. On February 22, 2021,
petitioner filed a brief in support of section 1172.6 resentencing arguing that he has made
a prima facie showing because there is no evidence that he was an aider and abettor to the
murder or that he acted with reckless indifference to human life.
On March 11, 2021, the trial court summarily denied the petition at the prima facie
stage finding that petitioner was a major participant and acted with reckless indifference
to human life thereby disqualifying him from resentencing relief. Specifically, the trial
court stated:
18.
“In deciding whether [petitioner] was a major participant in a special
circumstance felony murder, the [c]ourt must consider the following
factors:
“(1) what role the [petitioner] had in planning the criminal enterprise that
led to one or more deaths,
“(2) what role the [petitioner] had in supplying or using lethal weapons,
“(3) what awareness the [petitioner] had of particular dangers posed by the
nature of the crime, weapons used, or past experience or conduct of the
other participants,
“(4) whether the [petitioner] was present at the scene of the killing, in a
position to facilitate or prevent the actual murder, and
“(5) whether his or her own actions or inaction played a particular role in
the death, and what the [petitioner] did after lethal force was used; no one
of these considerations is necessary, nor is any one of them necessarily
sufficient. [In re Bennet (2018) 26 Cal.App.5th 1002; Banks, supra, 61
Cal.4th at p. 788.]
“Here, [petitioner] planned the robbery with his co-defendants. [Citation
omitted.] [Petitioner] showed up to the victim’s house with a firearm with
other individuals with firearms and was in the closet as the victim was
being shot at. [Citation omitted.] A reasonable inference can be made that
[petitioner] was aware of the dangers of having a weapon and going into
someone’s home. [Petitioner] was present at the scene of the killing.
Although it was never determined who fired the fatal shots, there is no
evidence in the record that [petitioner] attempted to render aid to the victim
or call an ambulance to render aid.
“Based on the above facts, [petitioner] was a ‘major participant’ as he was
one of the people who entered the home with a firearm and was also in the
closet with the other individuals as the victim was being shot at and
murdered. Moreover, there is no evidence that [petitioner] attempted to
prevent the murder.
“Therefore, [petitioner] is not eligible for resentencing as he was a ‘major
participant’ in the crime. [¶] … [¶]
“[Petitioner] also demonstrated a reckless indifference with regard to
human life in the commission of the crime. Tison v. Arizona (1987) 481
U.S. 137 provides some guidance here:
19.
“ ‘Similarly, we hold that the reckless disregard for human life implicit in
knowingly engaging in criminal activities known to carry a grave risk of
death represents a highly culpable mental state, a mental state that may be
taken into account in making a capital sentencing judgment when that
conduct causes its natural, though also not inevitable, lethal result.’
“[Petitioner] planned and executed (along with others) a robbery that
involved the use of a firearm, taking a hostage (the victim was ‘escorted’
into his own home at gunpoint by the [petitioner] and his co-defendants),
and putting the victim in a closet with multiple armed individuals. These
actions carried a ‘grave risk of death’ and demonstrate [petitioner]’s
reckless indifference toward human life. [Petitioner]’s possession of the
possible murder weapon and his failure to render aid to the victim of the
crime further supports the Court’s conclusion that [petitioner] acted with
reckless indifference. [¶] … [¶]
“[Petitioner] is not eligible for resentencing as he acted with reckless
indifference to human life and was a ‘major participant’ in the crime.”
On April 14, 2021, petitioner filed a timely appeal. In a nonpublished opinion filed on
June 23, 2022, we affirmed the trial court’s order denying resentencing. (People v.
Nichols (June 23, 2022, F082672) [nonpub. opn.].)
On July 26, 2022, petitioner filed a petition for review arguing that a special
circumstance finding prior to Banks and Clark should not preclude resentencing relief as
a matter of law. On September 28, 2022, our Supreme Court granted review and
transferred the matter back to this court with instructions to vacate our June 23, 2022
opinion and reconsider in light of Strong. Based on Strong, we vacated the prior opinion
and issued an order that it was “the intention of the court to reverse and remand this
matter with directions [to the trial court] to issue an order to show cause[,]” but provided
either party 15 days to serve and file an objection. Both parties filed supplemental briefs
stating that Strong requires this court to reverse and remand this matter with directions to
the trial court to issue an order to show cause. Accordingly, in light of Strong and both
parties’ agreement, the trial court’s order denying the section 1172.6 petition is reversed
and the matter remanded for further proceedings.
20.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill 1437 “to amend the
felony murder rule and the natural and probable consequences doctrine … 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 bill
accomplished this task by adding three separate provisions to the Penal Code. (People v.
Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable
consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a
principal to act with malice aforethought before he or she may be convicted of murder.
(§ 188, subd. (a)(3); accord, Gentile, at pp. 842–843.) Second, to amend the felony
murder rule, the bill added section 189, subdivision (e):
“A participant in the perpetration or attempted perpetration of [qualifying
felonies] 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
[s]ection 190.2.”9 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill added section 1172.6 (former § 1170.95) to provide a procedure for those
convicted of a qualifying offense “to seek relief under the two ameliorative provisions
above.” (Gentile, at p. 843.) This procedure is available to persons convicted of “felony
murder or murder under the natural and probable consequences doctrine or other theory
9 Additionally, section 189 was amended to allow for felony murder liability where
the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672.)
21.
under which malice is imputed to a person based solely on that person’s participation in a
crime, attempted murder under the natural and probable consequences doctrine, or
manslaughter .…” (§ 1172.6, subd. (a).)
“Section [1172.6] lays out a process” for a person convicted of one of the
aforementioned offenses “to seek vacatur of his or her conviction and resentencing.”
(Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the
sentencing court averring that:
“(1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder,
murder under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the natural and
probable consequences doctrine[;]
“(2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted
murder[; and]
“(3) The petitioner could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective January 1,
2019.” (§ 1172.6, subd. (a)(1)–(3); see also § 1172.6, subd. (b)(1)(A);
accord, People v. Lewis (2021) 11 Cal.5th 952, 959–960 (Lewis).)
Additionally, the petition shall state “[w]hether the petitioner requests the appointment of
counsel.” (§ 1172.6, subd. (b)(1)(C).)
If a petition fails to contain the required information and the information cannot be
“readily ascertained” by the court, the petition may be denied without prejudice to the
filing of another petition. (§ 1172.6, subd. (b)(2).) Otherwise, counsel must be
appointed, if requested. (§ 1172.6, subd. (b)(3).) The prosecutor must file a response and
the petitioner may file a reply. The trial court must then hold a hearing to determine if
the petitioner has made a prima facie showing that he or she is entitled to relief.
(§ 1172.6, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961–963, 967.) In making
22.
this determination, the court may rely on the record of conviction, which includes, but is
not limited to, jury instructions and verdict forms. (Id. at pp. 970–971, 972.) However,
the prima facie inquiry is limited and, at this stage of the proceedings, the court “should
not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Id. at pp. 971–972.) “If the court declines to make an order to show cause,
it shall provide a statement fully setting forth its reasons for doing so.” (§ 1172.6,
subd. (c).)
On the other hand, if the court determines the petitioner has met his or her prima
facie burden, “the trial court must issue an order to show cause and hold a hearing to
determine whether to vacate the murder[, attempted murder, or manslaughter] conviction
and to resentence the petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at
p. 853; accord, § 1172.6, subds. (c), (d)(1).) At the hearing, the prosecution must “prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1172.6,
subd. (d)(3).) The prosecutor and the petitioner may offer new or additional evidence to
meet their respective burdens. The admission of evidence at the hearing is governed by
the Evidence Code. However, the court also “may consider evidence previously admitted
at any prior hearing or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed,” as well as the “procedural
history of the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3).)
Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b)
of section 872 is inadmissible at the evidentiary hearing, unless made admissible by
another exception to the hearsay rule. (§ 1172.6, subd. (d)(3).)
II. Analysis
Petitioner contends the jury’s special circumstance finding cannot establish his
ineligibility for resentencing as a matter of law because his conviction predates our
Supreme Court’s decisions in Banks/Clark, which clarified the meaning of “major
23.
participant” and “reckless indifference to human life.” Based on our Supreme Court’s
holding in Strong, we agree.10
Prior to Strong, the Courts of Appeal were split on the question of whether a
special circumstance finding entered prior to Banks and Clark renders a petitioner
ineligible for section 1172.6 resentencing relief as a matter of law. Our Supreme Court
recently resolved this split and made clear that when, as here, a petitioner’s case “was
tried before both Banks and Clark, the special circumstance findings do not preclude him
from making out a prima facie case for resentencing under section 1172.6.” (Strong,
supra, 13 Cal.5th at p. 721.) “This is true even if the trial evidence would have been
sufficient to support the findings under Banks and Clark.” (Id. at p. 710.) The Strong
court noted the Banks and Clark cases “both substantially clarified the law governing
findings under … section 190.2, subdivision (d).” (Id. at p. 706.) Further, the court
articulated a pre-Banks and Clark special circumstance finding does not negate the
showing a petitioner could not presently be convicted of murder or attempted murder
because of changes to section 188 or 189 “because the finding alone does not establish
that the petitioner is in a class of defendants who would still be viewed as liable for
murder under the current understanding of the major participant and reckless indifference
requirements.” (Id. at p. 718.) Moreover, “there is nothing in section 1172.6 to indicate
that such arguments may be made only after a petitioner has had the prior special
circumstance findings set aside in a separate habeas corpus or other proceeding.” (Id. at
p. 714.)
Because of the differences between the pre- and post-Banks and Clark special
circumstance requirements, our Supreme Court stated the changes may “have altered
10 Petitioner further contends and the People agree the trial court engaged in
premature judicial factfinding at the prima facie stage. Because we conclude petitioner
established a prima facie case for relief under section 1172.6, we do not address this
argument in this opinion.
24.
what evidence defense counsel would have sought to introduce[,] … might have
fundamentally altered trial strategies[,]” and may have affected what jury instructions
were requested or given. (Strong, supra, 13 Cal.5th at pp. 719–720.) “An after-the-fact
court review of a pre-Banks and Clark record does not account for all these
differences.… And as the Legislature has made explicit in a recent amendment to the
predecessor to section 1172.6, a court determination that substantial evidence supports a
homicide conviction is not a basis for denying resentencing after an evidentiary hearing.
[Citation.] Nor, then, is it a basis for denying a petitioner the opportunity to have an
evidentiary hearing in the first place.” (Ibid.) “For petitioners with pre-Banks/Clark
findings, no judge or jury has ever found the currently required degree of culpability for a
first time. Allowing reexamination of the issue under these circumstances does not
permit a ‘second bite of the apple’ because the changes in the law mean there is now ‘a
different apple.’ ” (Id. at p. 718.) Thus, neither “the jury’s pre-Banks and Clark findings
nor a court’s later sufficiency of the evidence review amounts to the determination
section 1172.6 requires, and neither set of findings supplies a basis to reject an otherwise
adequate prima facie showing and deny issuance of an order to show cause.” (Id. at
p. 720.)
Here, the jury found true the section 190.2, subdivision (a)(17) special
circumstance before Banks and Clark were decided. (Nichols I, supra, F055572;
Nichols II, supra, F061963.) Pursuant to Strong, this finding does not preclude petitioner
from stating a prima facie case for relief. (Strong, supra, 13 Cal.5th at p. 721.)
Moreover, a petitioner’s prima facie case is not barred even if the evidence is sufficient to
support the special circumstance post-Banks and Clark. (Id. at p. 710; Lewis, supra, 11
Cal.5th at p. 972 [In reviewing the record at the prima facie stage, “a trial court should
not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ”].) Lastly, as petitioner argued, “there is nothing in section 1172.6 to
indicate that such arguments may be made only after a petitioner has had the prior special
25.
circumstance findings set aside in a separate habeas corpus or other proceeding.”
(Strong, at p. 714.)
Petitioner’s section 1172.6 petition was facially sufficient and alleged the essential
facts necessary for relief under section 1172.6. Nothing in the record indicates petitioner
is ineligible for relief as a matter of law, and thus, we must remand the matter for the trial
court to issue an order to show cause and, to the extent necessary, conduct an evidentiary
hearing. (§ 1172.6, subds. (c), (d)(1) & (3).) We express no opinion on the ultimate
resolution of the petition.
DISPOSITION
The trial court’s order denying petitioner’s section 1172.6 petition is reversed. On
remand, the trial court is directed to issue an order to show cause and, to the extent
necessary, hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).
26.