People v. Probus CA4/2, E072780

In November 2002 Ronald Sommer was shot and killed; evidence showed Probus and his friend Sebastian Martinez planned to "smack [the victim] around" and take his money; Probus carried a 20-gauge shotgun and Martinez a handgun.
Probus and Martinez were tried jointly (separate juries). Probus’s jury convicted him of first degree murder and found true a special‑circumstance allegation that the murder was committed while Probus was engaged in attempted robbery (§ 190.2(a)(17)(A)). The jury also found Probus did not personally and intentionally discharge a firearm.
Probus was sentenced to life without parole in 2004; this court affirmed on direct appeal.
After Senate Bill No. 1437 and the addition of § 1170.95, Probus filed a petition (Jan 2019) seeking vacatur of his murder conviction and resentencing under the new statutory procedure.
The trial court summarily denied the § 1170.95 petition after reviewing the record and concluding the preexisting special‑circumstance finding made him ineligible as a matter of law; Probus appealed the denial.
The Court of Appeal affirmed, holding the jury’s special‑circumstance finding is equivalent to the SB 1437 requirements and therefore forecloses § 1170.95 relief as a matter of law; the court also noted the trial court misstated a jury finding at the hearing but did not rely on that misstatement.

Issue	People’s Argument	Probus’s Argument	Held
Whether the trial court properly summarily denied Probus’s § 1170.95 petition based on the jury’s true finding of the § 190.2 special circumstance	The special‑circumstance true finding establishes the same elements SB 1437 requires (major participant + reckless indifference), so Probus remains convictable and is ineligible for relief as a matter of law	The special‑circumstance finding cannot be used to bar § 1170.95 relief because the jury was not instructed on the statutory terms “major participant” and “reckless indifference,” and Banks/Clark changed their legal meaning	Affirmed: the § 190.2 true finding matches SB 1437 requirements; it precludes § 1170.95 relief as a matter of law
Whether the trial court’s apparent misstatement that Probus personally discharged a firearm invalidated its denial	The court clarified it did not rely on an actual‑killer or personal‑discharge finding but on the special circumstance	Probus contended the court treated him as the actual killer and thus erred	Affirmed: the court misstated the jury finding but did not base the denial on that misstatement; denial stands

People v. Lewis, 11 Cal.5th 952 (2021) (explains SB 1437 amendments and the § 1170.95 petition procedure)
People v. Banks, 61 Cal.4th 788 (2015) (frames analysis for "major participant" and "reckless indifference")
People v. Clark, 63 Cal.4th 522 (2016) (applies and refines Banks framework)
People v. Jones, 56 Cal.App.5th 474 (2020) (held preexisting § 190.2 special‑circumstance findings can preclude § 1170.95 relief)
People v. Galvan, 52 Cal.App.5th 1134 (2020) (similar holding that § 190.2 true findings defeat § 1170.95 eligibility)