People v. StrongPeople v. Strong
In Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), the Legislature significantly narrowed the scope of the felony-murder rule. It also created a path to relief for defendants who had previously been convicted of murder on a felony-murder theory but who could not have been convicted under the new law. Resentencing is available under the new law if the defendant neither killed nor intended to kill and was not “a major participant in the underlying felony [who] acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2.” (
In this case, defendant Christopher Strong seeks resentencing even though the jury that convicted him of felony murder in 2014 also found true felony-murder special-circumstance allegations that he was a “major participant” who acted “with reckless indifference to human life” within the meaning of
I.
In 2007, Strong and an accomplice attempted to rob a local drug dealer in his home. During the robbery, the accomplice fatally shot a friend of the drug dealer, Sean Aquitania, and Aquitania‘s infant son. In 2014, a jury convicted Strong of various crimes, including two counts of first degree murder with multiple-murder and felony-murder special circumstances. (
We begin by describing the law that governed at the time of Strong‘s trial and the subsequent legal developments that have given rise to the question before us.
A.
Under the felony-murder doctrine as it existed at the time of Strong‘s trial, “when the defendant or an accomplice kill[ed] someone during the commission, or attempted commission, of an inherently dangerous felony,” the defendant could be found guilty of the crime of murder, without any showing of “an intent to kill, or even implied malice, but merely an intent to commit
Then, as now, a defendant convicted of first degree murder could be punished by a sentence of death or life without possibility of parole if the trier of fact found the murder‘s commission involved one of several statutorily defined special circumstances. (
We first undertook to provide that guidance in Banks. The specific issue concerned the meaning of the major participant element: “[U]nder what circumstances an accomplice who lacks the intent to kill may qualify as a major participant” for purposes of the felony-murder special circumstance. (Banks, supra, 61 Cal.4th at p. 794.) Because the language derived from United States Supreme Court felony-murder precedent, we looked to that case law for guideposts. The cases, which delineated the limits on capital punishment for felony murder under the Eighth Amendment of the federal Constitution, “collectively place[d] conduct on a spectrum” of defendant culpability, “with felony-murder participants eligible for death
Examining the two high court decisions, Banks identified a series of considerations to help guide the inquiry into “whether a defendant‘s culpability is sufficient to make him or her death eligible” under the Eighth Amendment and, by extension, under California statutory law incorporating the Eighth Amendment standard. (Banks, supra, 61 Cal.4th at p. 803.) The considerations, we said, “are these: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death?
Although Banks focused primarily on the major participant element, the decision also discussed the reckless indifference element. Again citing the high court precedent‘s overarching concern with assessing individual culpability for felony murder, we held that knowing participation in an armed robbery, standing alone, is insufficient to establish a defendant‘s reckless indifference to human life. (Banks, supra, 61 Cal.4th at pp. 807–811.) In so holding, we disapproved the contrary decisions of several Courts of Appeal. (Id. at p. 809 & fn. 8.)
We returned to these issues the following year in Clark, supra, 63 Cal.4th 522. We there reiterated the Banks standard governing major participation. But the core of Clark‘s holding rested on the reckless indifference element. Once again looking to high court precedent for guidance, we concluded that ” ‘reckless indifference,’ . . . encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.” (Id. at p. 617.) Much as in Banks, we set out a nonexhaustive list of considerations relevant to this determination, including use of or awareness of the presence of a weapon or weapons, physical presence at the scene and opportunity to restrain confederates or aid victims, the duration
Banks and Clark both substantially clarified the law governing findings under
B.
In 2017, the Legislature adopted a concurrent resolution declaring a need to reform the state‘s homicide law “to more equitably sentence offenders in accordance with their involvement in the crime.” (Sen. Conc. Res. No. 48, Stats. 2017 (2017–2018 Reg. Sess.) res. ch. 175 (Resolution 48).) The next year, the Legislature followed through with Senate Bill 1437, which made significant changes to the scope of murder liability for those who were neither the actual killers nor intended to kill anyone, including certain individuals formerly subject to punishment on a felony-murder theory. (See Stats. 2018, ch. 1015, § 1, subd. (c) [measure intended to address need for change identified in Resolution 48].)1
As relevant here, Senate Bill 1437 significantly limited the scope of the felony-murder rule to effectuate the Legislature‘s declared intent “to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the
Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended. (See
When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition “to determine whether the petitioner has made a prima facie case for relief.” (
C.
When Strong petitioned for resentencing under Senate Bill 1437, he submitted a declaration attesting that under the recent Penal Code amendments he could not now be convicted of first or second degree murder. The People opposed the petition, arguing that Strong could not make a prima facie showing of eligibility for relief because his 2014 conviction for special circumstance felony murder established that he was either an actual killer, had directly aided and abetted murder with the intent to kill, or was a major participant in the underlying felony who acted with reckless indifference to human life. (See
The trial court denied the petition. It agreed with the People that the special circumstance finding, which had never been overturned or vacated, meant that Strong could have been convicted of murder even if Senate Bill 1437 had been in effect at the time of trial.
The Court of Appeal affirmed. (People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.].) The court acknowledged a burgeoning split among the appellate courts over whether pre-Banks/Clark felony-murder special-circumstance findings, like the findings in Strong‘s case, bar resentencing. The court in this case sided with a line of precedent that has held such findings
We took review to resolve the split. We now conclude the final group of courts is correct: Findings issued by a jury before Banks and Clark do not preclude a defendant from making out a prima facie case for relief under Senate Bill 1437. This is true even if the trial evidence would have been sufficient to support the findings under Banks and Clark.
II.
Although the Courts of Appeal have divided on the question presented, their decisions reveal a bit of common ground.
Senate Bill 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, as described in subdivision (d) of [Penal Code] Section 190.2.” (
But do findings made before Banks and Clark have the same effect? Here is where Courts of Appeal — and the parties — have diverged. In the view of the Court of Appeal below and the Attorney General, section 1172.6, properly interpreted, categorically forecloses any argument for a different result based on an intervening change in the law. We
A.
Courts finding a categorical bar, including the Court of Appeal in this case, have reasoned that the plain language of section 1172.6‘s eligibility provision does not permit resentencing of petitioners previously found to have been major participants who acted with reckless indifference to human life, regardless of any contention based on changes wrought by Banks and Clark. (See, e.g., People v. Nunez (2020) 57 Cal.App.5th 78, 94–95, review granted Jan. 13, 2021, S265918; People v. Jones (2020) 56 Cal.App.5th 474, 484, review granted Jan. 27, 2021, S265854; People v. Murillo (2020) 54 Cal.App.5th 160, 168, review granted Nov. 18, 2020, S264978; People v. Galvan (2020) 52 Cal.App.5th 1134, 1142, review granted Oct. 14, 2020, S264284, review dism. Apr. 13, 2022.) These courts have relied on section 1172.6, subdivision (a)(3), which limits eligibility for resentencing to those who “could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019.” (Italics added.) According to the leading case on this point, for a petitioner with a pre-Banks/Clark true felony-murder special circumstance, “the alleged inability to obtain such a conviction is not ‘because of changes’ made by Senate Bill No. 1437, but because of the clarification of the requirements for the special circumstance finding in Banks and Clark. Nothing about those requirements changed as a result of Senate Bill No. 1437. Just as was the case before that law went into effect, the special circumstance applies to defendants who were major participants
This reasoning does not withstand scrutiny. It ignores that, for any petitioner with pre-Banks/Clark felony-murder special-circumstance findings, “the alleged inability to obtain such a conviction” (People v. Galvan, supra, 52 Cal.App.5th at p. 1142) depends in the first instance on the changes in murder liability for which Senate Bill 1437 is responsible. To see the point, consider a defendant who is convicted of murder with a felony-murder special circumstance before Banks and Clark, but for whom the evidence would not have been sufficient under the Banks and Clark clarifications of the standards. After Banks and Clark, but before the 2019 changes to
It is of course true that this hypothetical defendant‘s claim for resentencing also depends, in a “but for” sense, on Banks and Clark; if those decisions had not clarified the law regarding the relevant elements, the defendant would have no argument for relief under Senate Bill 1437. But those changes matter for resentencing purposes only because the Legislature chose to write the same elements into its revised definition of murder. And
B.
The Attorney General makes a different argument in defense of the Court of Appeal‘s categorical approach. Invoking the reasoning of several Courts of Appeal, the Attorney General contends that resentencing under Senate Bill 1437 is categorically unavailable to a defendant with a prior felony-murder special-circumstance finding because a section 1172.6 petition is not the proper vehicle for setting the finding aside; such findings may be set aside only on direct appeal or through a habeas corpus petition. (See People v. Nunez, supra, 57 Cal.App.5th at pp. 95–96, rev.gr.; People v. Jones, supra, 56 Cal.App.5th at p. 483, rev.gr.; People v. Gomez, supra, 52 Cal.App.5th at p. 17, rev.gr.)
The Attorney General relies for this argument on a provision of section 1172.6 that expressly preserves other
We agree with the Attorney General that a defendant may still challenge prior adverse special circumstance findings in other types of proceedings, just as the defendant could have before section 1172.6 was enacted. But nothing in section 1172.6 says that a defendant must always do so before seeking resentencing. Nor can we imply such an exhaustion requirement from either of the provisions on which the Attorney General relies, neither of which has any direct bearing on the issue before us. (See People v. Secrease, supra, 63 Cal.App.5th at p. 256, rev.gr. [former
The Attorney General also observes that the findings accompanying enactment of Senate Bill 1437 evince a concern with inequities in the existing law of murder and a desire to correct the law “to more equitably sentence offenders in accordance with their involvement in homicides” (Stats. 2018, ch. 1015, § 1, subd. (b)), while nothing in those findings or any of the various committee reports on the measure reflect any similar concern with correcting errors in past factfinding.
True, but what does it matter? Petitioners in Strong‘s position are not seeking correction of an erroneous special circumstance finding. (See People v. York, supra, 54 Cal.App.5th at p. 260, rev.gr. [“[t]he fact that the special circumstance finding will be vacated as a result of a successful challenge to the murder conviction does not mean the special circumstance itself was challenged in the [former] section 1170.95 proceeding“].) They are, instead, seeking prospective relief from a murder conviction that was presumptively valid at the time, invoking the Legislature‘s later conclusion that some such convictions do not reflect sufficient individual culpability to warrant punishment for murder, with the determination of the conviction‘s validity to be judged by standards clarified in Banks and Clark. Their arguments may lack merit, and a trial
III.
While the Attorney General argues that the text of section 1172.6 categorically precludes relitigation of major participant and reckless indifference findings, amicus curiae the Office of the State Public Defender (OSPD) invokes the statutory text in support of the opposite position: that the Legislature did not intend for any type of prior
OSPD‘s argument relies on section 1172.6, subdivision (d)(2), discussed above, which says that in the event of a prior special circumstance finding favorable to the defendant, the court should skip straight to resentencing, without first holding an evidentiary hearing. (
In any event, OSPD‘s argument proves too much. The argument is not limited to findings rendered before Banks and Clark; if accepted, it would mean that even adverse findings rendered after Banks and Clark would have no effect in a subsequent resentencing proceeding — even though every appellate court to consider the issue, and both parties here, agree that post-Banks and Clark findings ordinarily do foreclose
IV.
A.
Because the text of
As traditionally understood and applied, issue preclusion bars relitigation of issues earlier decided “only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.” (Lucido v. Superior Court, supra, 51 Cal.3d at p. 341.) And while these threshold requirements are necessary, they are not always sufficient: “Even if the[] threshold requirements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles” of promoting efficiency while ensuring fairness to the parties. (Gikas v. Zolin, supra, 6 Cal.4th at p. 849; see also, e.g., Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 835 [“collateral estoppel will apply in any setting only where such application comports with fairness and sound public policy“].) It is the burden of the party seeking to prevent relitigation based
The Attorney General‘s argument that prior special circumstance findings always foreclose relief in
Even when the threshold requirements for issue preclusion are met, one well-settled equitable exception to the general rule holds that preclusion does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue. (See, e.g., Rest.2d Judgments, § 28, subd. (2) [a prior finding is not preclusive when “a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws“].) As the high court explained more than a half century ago: “[A] judicial declaration intervening between the two proceedings may so change the legal atmosphere as to render the rule of collateral estoppel inapplicable.” (Commissioner v. Sunnen (1948) 333 U.S. 591, 600; see Montana v. United States (1979) 440 U.S. 147, 155, 161–162.) The Courts of Appeal in this
This exception ensures basic fairness by allowing for relitigation where “the change in the law [is] such that preclusion would result in a manifestly inequitable administration of the laws.” (Rest.2d Judgments, § 28, com. c, pp. 276–277.) It also reflects a recognition that in the face of this sort of legal change, the equitable policies that underlie the doctrine of issue preclusion — “preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation” (Lucido v. Superior Court, supra, 51 Cal.3d at p. 343) — are at an ebb. The integrity of the judicial system may be compromised by inconsistent determinations — but so might it be compromised by fastidiously insisting on identical determinations even when a material change in the governing law calls for a different outcome in a second proceeding. Concerns about judicial economy and vexatious litigation likewise have little purchase when there has been a significant change in the law that applies to determination of the relevant issue.
Banks and Clark represent the sort of significant change that has traditionally been thought to warrant reexamination of
Some Courts of Appeal have cited countervailing fairness considerations in support of adopting a categorical bar against resentencing for petitioners with pre-Banks and Clark felony-murder special-circumstance findings. These courts have raised concerns that nothing in the text or history of
Nor are we moved by any concern that allowing relitigation in some circumstances would unfairly require the prosecution to prove major participation and reckless indifference beyond a reasonable doubt for a second time. (See, e.g., People v. Nunez, supra, 57 Cal.App.5th at p. 96, rev.gr.; People v. Jones, supra, 56 Cal.App.5th at p. 485, rev.gr.; People v. Gomez, supra, 52 Cal.App.5th at p. 17, rev.gr.) 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.” (People v. Ruiz, supra, 49 Cal.App.5th at p. 1069, italics omitted.)3
B.
The Attorney General argues that if we conclude that
According to the leading decision in this line, the main obstacle to granting conclusive effect to pre-Banks and Clark findings does not lie in the different standards under which those findings were made by the trier of fact; the standard jury instruction has not in fact changed in the wake of Banks and Clark.4 (People v. Secrease, supra, 63 Cal.App.5th at p. 256, rev.gr.) Rather, the “heart of the problem” is that pre-Banks/Clark findings, unlike post-Banks/Clark findings, have never been subjected to judicial scrutiny under the correct standards. (Ibid.) This omission, they reason, can be cured by a court conducting such a review at the prima facie stage of a
An after-the-fact court review of a pre-Banks and Clark record does not account for all these differences. The prior findings were made to a beyond-a-reasonable-doubt degree of certainty, but under outdated legal standards. The Attorney General‘s proposed review would apply the correct legal
Section 1172.6 offers resentencing for petitioners who have not been determined beyond a reasonable doubt to have the degree of culpability now required for a murder, attempted
V.
We turn, finally, to the application of these principles in this case.
Here, a 2014 jury found beyond a reasonable doubt that Strong acted as a major participant with reckless indifference to human life.
In 2015, Banks substantially clarified the law surrounding major participant findings. (Banks, supra, 61 Cal.4th at pp. 797–804.) A year later, Clark recited the teachings of Banks on the major participant question and then substantially clarified the relevant considerations for determining whether a defendant has acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 611–623.) For reasons we have explained, unless a defendant was tried after Banks was decided, a major participant finding will not defeat an otherwise valid prima facie case. And unless a defendant was tried after Clark was decided, a reckless indifference to human life finding will not defeat an otherwise valid prima facie case.
Because Strong‘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
We reverse the judgment of the Court of Appeal and remand for further proceedings not inconsistent with this opinion.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
GUERRERO, J.