Filed 6/4/21 P. v. Mathis CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, E074933 v. (Super.Ct.No. CR50362) WILLIAM HENRY MATHIS III, OPINION Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.

Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Banta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.

Swenson, Felicity Senoski and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

In 1994, defendant and appellant William Henry Mathis III was convicted of first degree felony murder, the jury found true a robbery-murder special circumstance allegation, and the trial court sentenced him to life without the possibility of parole; in 1996, this court affirmed the judgment. (People v. Mathis (July 30, 1996, E015611) [nonpub. opn.] (Mathis).) In 2019, defendant petitioned for resentencing pursuant to Penal Code1 section 1170.95 (Stats. 2018, ch. 1015, § 4), a statute recently enacted by Senate Bill No. 1437 (2017-2018 Reg. Sess.).2 The trial court granted a motion to dismiss the petition, finding that defendant was not eligible for relief because he was a major participant in the felony murder and acted with reckless indifference to human life during its commission. We affirm.

I. PROCEDURAL BACKGROUND AND FACTS3 In the process of robbing a video store in June 1993, defendant and a codefendant shot and killed the clerk. According to a customer, the two were in the store when he left around 9:48 p.m. The clerk’s friend arrived at the store a little after 10:00 p.m. and heard a “pop.” She saw defendant standing behind the counter and the codefendant standing in the doorway to the storeroom. As she walked toward the counter, the two men left through the back door. The friend found the clerk lying on the bathroom floor in the back area of the store and called 911 around 10:15 p.m. The clerk died as the result of three gunshot wounds to the head. (Mathis, supra, E015611.)

Defendant and his codefendant were apprehended in the early morning hours the next day, and gunshot residue samples were taken from their hands. The tests on swabs taken from defendant were inconclusive; however, residue from the gloves found in his back pants pocket was consistent with someone having worn those gloves while firing a gun or handling a recently fired gun. Defendant and his codefendant went to the video store with the “tools” to commit a robbery—a pillowcase to carry the money, gloves to conceal fingerprints, and a gun to scare or, if necessary, kill the store clerk. (Mathis, supra, E015611.)

Defendant was convicted of first degree murder (§ 187, subd. (a)), and the jury also found true the robbery-murder special circumstance (former § 190.2, subd. (a)(17)(i); see current § 190.2, subd. (a)(17)(A)), as well as an allegation that a principal in the robbery was armed with a firearm (§ 12022, subd. (a)(1)). Defendant appealed from his conviction contending, inter alia, the evidence was insufficient to support the jury’s true finding on the robbery-murder special circumstance allegation. (Mathis, supra, E015611.) We concluded the evidence was sufficient to support the finding because the evidence supported a finding that both defendant and his codefendant shot the clerk and, therefore, both were the actual killers. (Mathis, supra, E015611.) We explained, in part: “From the noted evidence, the jury could have found that [defendant] was wearing the gloves when he shot [the clerk] which is why the [gun residue] on his hands [was] inconclusive. The evidence indicates there [were] approximately 5 to 10 minutes unaccounted for [in which] each defendant could have fired some of the shots that killed [the clerk] and, thus, both were the actual killers.” (Mathis, supra, E015611.)

Defendant filed habeas corpus petitions raising the same issue, all of which were denied.

On January 8, 2019, defendant filed a petition, in propria persona, for resentencing under section 1170.95. Counsel was appointed for him. The prosecution moved to dismiss on the grounds defendant “was convicted of murder, with a felony murder special circumstance [found] true; also sentenced LWOP in 1994. [¶] And although the jury instructions are not in imaging, the law was very clear in 1994, that, in order to find that

special circumstance true for at least a non-killer, the jury would have had to find that the defendant was a major participant, acting with reckless indifference.” Defense counsel objected “for the record” and submitted. The trial court granted the motion to dismiss the petition for the reasons stated by the prosecution.4 II. DISCUSSION Defendant contends the trial court erred by ruling that the jury’s finding on the special circumstance conclusively established that he was not eligible for resentencing.

He argues that the Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) significantly narrowed the definition of both “‘major participant’” and “‘reckless indifference to human life,’” so that the jury’s pre-Banks and Clark true findings do not establish that he comes within that definition.

Recently, however, in People v. Jones (2020) 56 Cal.App.5th 474 (Jones), review granted January 27, 2021, S265854,5 this court rejected an identical contention. (Id. at

We readily acknowledge that (1) there is a split of authority on whether a defendant must first seek relief under Banks/Clark through a habeas petition before filing a section 1170.95 petition (Jones, supra, 56 Cal.App.5th at pp. 482-483), and (2) the issue of whether a felony-murder special circumstance finding under section 190.2, subdivision (a)(17), made before Banks and Clark precludes a defendant from making a prima facie showing of eligibility for relief under section 1170.95 is currently pending before the Supreme Court. (People v. Strong (Mar. 10, 2021, S266606) [2021 Cal. Lexis

1701].) Unless and until the Supreme Court tells us otherwise, we adhere to our opinion in Jones. (Cal. Rules of Court, rule 8.1115(e).)6 Furthermore, “in the wake of Banks and Clark, no mandatory language was added to the CALCRIM instructions on special circumstances under section 190.2, subdivision (d). Optional language describing the Banks and Clark factors was added. (CALCRIM No. 703.) . . . [¶] [However,] the optional language that was added to the CALCRIM instructions in light of Banks and Clark does not require the jury to consider any additional questions or resolve any additional issues. As to reckless indifference, the optional language states, ‘When you decide whether the defendant acted with reckless indifference to human life, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant acted with reckless indifference to human life. Among the factors you may consider are,’ followed by a list of the factors identified in Clark. (CALCRIM No. 703.) The optional language concerning major participant is identical. The only requirement imposed on the jurors is that they consider all the evidence. Everything else is optional (the jury ‘may’ consider the listed factors, among others). (CALCRIM No. 703.) [¶] . . . The issues

We agree with the analysis in Jones. resolved and questions answered by juries before and after Banks and Clark will be exactly the same.” (Jones, supra, 56 Cal.App5th at pp. 486-487 (conc. opn. of Menetrez, J.).)

As we suggested in Jones, supra, 56 Cal.App.5th at pages 478-479, a person in defendant’s position is not wholly without a remedy. He or she may challenge prior special circumstance findings in a habeas proceeding. (See, e.g., In re Scoggins (2020) 9 Cal.5th 667, 676-683.) We express no opinion as to whether in defendant’s case there might be some procedural bar to such a proceeding at this point.

We therefore conclude the trial court properly dismissed defendant’s section 1170.95 petition.

As a result, we conclude defendant’s counsel was not ineffective for failing to reference Banks and Clark in the written reply or for only objecting “for the record” and submitting at the hearing on the petition. Given our conclusion that defendant was not entitled to relief under section 1170.95 as a matter of law, it is not reasonably probable that defendant would have received a more favorable outcome had his counsel referenced Banks and Clark in the written reply or argued differently at the hearing. (See People v. Ledesma (1987) 43 Cal.3d 171, 217-218 [ineffective assistance of counsel claim requires the defendant to “‘show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different’”].)

III. DISPOSITION The order dismissing defendant’s section 1170.95 petition without a hearing is affirmed. The superior court clerk is directed to correct the February 28, 2020 minute order to reflect the petition was dismissed, instead of denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J.

We concur:

RAMIREZ P.J.

MENETREZ J.