57 Cal.App.5th 78
Cal. Ct. App.2020Background
- In 2007 Jesus Payan was kidnapped and executed; physical and forensic evidence linked Daniel Nunez to the crime. A jury in 2009 convicted Nunez of first‑degree murder and kidnapping and found true a felony‑murder special circumstance (kidnapping to commit murder); Nunez was sentenced to life without parole.
- Senate Bill No. 1437 (effective Jan. 1, 2019) narrowed felony‑murder liability and created Penal Code § 1170.95, allowing petitions to vacate murder convictions when a petitioner "could not be convicted" under the amended §§ 188/189.
- Nunez filed a § 1170.95 petition checking form boxes asserting eligibility but provided no factual allegations supporting that he "could not now be convicted" under the statutory changes.
- The superior court summarily denied the petition without appointing counsel, reasoning the jury’s felony‑murder special‑circumstance finding (CALCRIM No. 703) necessarily established that Nunez either intended to kill or was a major participant who acted with reckless indifference, so he remains eligible for murder liability under amended § 189.
- The Court of Appeal affirmed, holding (1) a § 1170.95 petition must allege the factual basis showing the petitioner could not be convicted under the amended statutes to make a prima facie showing, and (2) a preexisting felony‑murder special‑circumstance finding that proves intent or major‑participant/reckless‑indifference precludes relief as a matter of law; Banks/Clark challenges are not properly raised in a § 1170.95 petition.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Nunez) | Held |
|---|---|---|---|
| 1. What prima facie showing is required under § 1170.95(c)? | Petitioner must plead factual allegations showing why amended §§ 188/189 would preclude conviction. | Form box checks suffice; court should appoint counsel and proceed to briefing. | Petition must include factual basis (not mere box checks) for the claim that petitioner "could not be convicted" under the amendments; absent that, court may deny for failure to make a prima facie showing. |
| 2. May the superior court rely on a prior felony‑murder special‑circumstance finding to summarily deny a § 1170.95 petition? | Yes; a special‑circumstance finding that the defendant intended to kill or was a major participant who acted with reckless indifference means the petitioner remains punishable under amended § 189 as a matter of law. | No; court should not treat prior findings as resolving eligibility without further factfinding. | Yes; where the record of conviction (including a special‑circumstance finding) establishes ineligibility as a matter of law, the court may summarily deny the petition without appointing counsel. |
| 3. Can a petitioner use § 1170.95 to relitigate Banks/Clark issues (sufficiency of MPRI finding)? | No; Banks and Clark clarified existing standards but did not change §§ 188/189; challenges to the factual sufficiency of pre‑Banks/Clark findings must proceed via habeas corpus, not § 1170.95. | Yes; Banks/Clark changed the controlling standards, so Nunez can argue the jury’s MPRI finding is invalid and thus he "could not be convicted" under current law. | No; § 1170.95 is not the proper vehicle to attack prior MPRI findings under Banks/Clark. Habeas is the appropriate remedy for those claims. |
Key Cases Cited
- People v. Banks, 61 Cal.4th 788 (California Supreme Court) (clarified factors for "major participant" in MPRI analysis)
- People v. Clark, 63 Cal.4th 522 (California Supreme Court) (clarified factors for "reckless indifference to human life" in MPRI analysis)
- People v. Allison, 55 Cal.App.5th 449 (Cal. Ct. App.) (approved denying § 1170.95 petitions when special‑circumstance findings preclude relief)
- People v. Galvan, 52 Cal.App.5th 1134 (Cal. Ct. App.) (held Banks/Clark claims belong in habeas; special‑circumstance findings can bar § 1170.95 relief)
- People v. Gomez, 52 Cal.App.5th 1 (Cal. Ct. App.) (same: Banks/Clark challenges via habeas; § 1170.95 not for relitigating prior MPRI findings)
- People v. Murillo, 54 Cal.App.5th 160 (Cal. Ct. App.) (endorsed summary denial where record shows ineligibility)
- People v. Verdugo, 44 Cal.App.5th 320 (Cal. Ct. App.) (described the two‑step prima facie review and court's ability to consult the record of conviction)
- In re Scoggins, 9 Cal.5th 667 (California Supreme Court) (habeas relief available when a later decision clarifies that defendant's conduct is not proscribed)