Filed 11/8/22 P. v. Peters CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, D079686 Plaintiff and Respondent, v. (Super. Ct. No. SCD187000) THERON LEE PETERS, Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Reversed and remanded with directions.

Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters and Charles C.

Ragland, Assistant Attorneys General, A. Natasha Cortina and Alan L.

Amann, Deputy Attorneys General, for Plaintiff and Respondent.

After pleading guilty in 2007 to two counts of first degree murder as well as other crimes and being sentenced to two consecutive life terms for the murders, Theron Lee Peters in 2019 petitioned for resentencing under then Penal Code1 section 1170.95 (now section 1172.62) based on changes made to the felony-murder rule by Senate Bill No. 1437 (2017-2018 Reg. Sess.). The trial court summarily denied the petition, finding Peters’s admissions in his plea agreement showed he was a major participant who had acted with reckless indifference to human life in committing the murders.

While Peters’s appeal was pending, the California Supreme Court decided People v. Strong (2022) 13 Cal.5th 698 (Strong) and the parties submitted supplemental briefing. Based on Strong, the People now concede the court’s order should be reversed and the matter remanded for further proceedings consistent with that case. As we explain, we agree with the People’s concession, reverse the order and remand with directions set forth below.

BACKGROUND In 2007, Peters pleaded guilty to two counts of first degree murder and other crimes.3 In connection with the murder counts, he admitted special

As to the count 4 murder, Peters admitted that “[d]uring the commission of the attempted robbery of [store clerk, Richard] Hammes, [he] was a major participant and acted with reckless indifference to human life when he participated in the crime, and who aided and abetted Colbert. Colbert killed . . . Hammes by shooting him with a handgun . . . .”

The court sentenced Peters to two consecutive life-without-parole terms on the murder counts, a consecutive term of life with the possibility of parole on the count 8 kidnapping, and seven years on the enhancements.

After Peters’s guilty plea, the California Supreme Court decided People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), in which the court set out guidance on factors that must be considered by a jury in felony-murder special circumstance sentencing enhancements. Banks substantially clarified the law as to whether a defendant was a major participant in the underlying felony. (Strong, supra, 13 Cal.5th at p. 721; see Banks, at pp. 797-804.) Thereafter, in Clark, the court substantially clarified the relevant considerations for determining

whether a defendant acted with reckless indifference to human life. (Strong, supra, 13 Cal.5th at p. 721; see Clark, at pp. 611-623.)

DISCUSSION Senate Bill No. 1437, effective January 1, 2019, “amend[ed] 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); see also Strong, supra, 13 Cal.5th at pp. 707-708.)4 Senate Bill No. 1437 also created a procedural mechanism in section 1172.6 for those convicted under the former law to petition the trial court for retroactive relief under the amended law. (§ 1172.6, subd. (a); Strong, supra, 13 Cal.5th at p. 708.) “[T]he process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citations], including that ‘[t]he petitioner could not presently be convicted of

In People v. Lewis (2021) 11 Cal.5th 952, the California Supreme Court explained the trial court’s role in assessing a section 1172.6 petition: “While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for . . . relief, the prima facie inquiry . . . is limited. . . . ‘ “[T]he court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.’ ” (Id. at p. 971.) Importantly, “[i]n reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.) “[T]he ‘prima facie bar was intentionally and correctly set very low.’ ” (Ibid.)

If a defendant has made a prima facie showing of entitlement to relief, “ ‘the court shall issue an order to show cause.’ ” (Strong, supra, 13 Cal.5th at p. 708.) Once the court determines that a defendant has made a prima facie showing, it “must [then] hold an evidentiary hearing at which the prosecution bears the burden of proving, ‘beyond a reasonable doubt, that the petitioner is

guilty of murder or attempted murder’ under state law as amended by Senate Bill [No.] 1437. [Citation.] ‘A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.’ [Citation.] ‘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.’ ” (Id. at p. 709.) “Senate Bill [No.] 1437 relief is unavailable if the defendant was either the actual killer, acted with the intent to kill, or ‘was a major participant in the underlying felony and acted with reckless indifference to human life . . . .’ ” (Id. at p. 710.)

In Strong, supra, 13 Cal.5th 698, the California Supreme Court held that given the clarifications in the law, jury special circumstance findings issued before Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522 “do not preclude [a defendant] from making out a prima facie case for resentencing under section 1172.6.” (Strong, at p. 721.) The court explained: “Banks and Clark represent the sort of significant change that has traditionally been thought to warrant reexamination of an earlier-litigated issue. Our earlier discussion of habeas corpus petitioners who have obtained relief from their felony-murder special circumstances in the wake of Banks and Clark [citation] does much to explain why: There are many petitioners with pre-Banks and Clark felony-murder special-circumstance findings who nevertheless could not be convicted of murder today. . . . A pre-Banks and Clark special circumstance finding does not negate [a defendant’s prima facie showing under section 1172.6, subdivision (a)(3) that they could not presently be convicted of murder or attempted murder because of changes to section or 189 effective January 1, 2019] 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.” (Strong, at pp. 717-718.)

Nor does a court’s later sufficiency of the evidence review amount to the determination section 1172.6 requires. (Id. at p. 720.) Accordingly, such findings do not warrant summary denial of a section 1172.6 petition, rather, the matter must proceed to an evidentiary hearing. (See ibid.)

Here, Peters’s guilty plea admission to being a major participant who acted with reckless indifference to human life occurred before the high court decided Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. As the People properly concede, neither his admissions, nor the trial court’s cursory finding in denying Peters’s petition for resentencing, provide a basis to reject an otherwise prima facie showing. (Strong, supra, 13 Cal.5th at p. 720.) We therefore vacate the court’s order and remand the matter for further proceedings consistent with Strong. We express no opinion on whether Peters is entitled to relief.

DISPOSITION The order is reversed and the matter remanded with directions to issue an order to show cause under section 1172.6, subdivision (c) and to hold a hearing under subdivision (d) of that section.

O’ROURKE, Acting P. J.

WE CONCUR:

IRION, J.

DO, J.