P. v. Parker

1
Filed 10/15/20 P. v. Parker CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publi-
cation or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or-
dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
DONALD PARKER,
Defendant and Appellant.
A159440
(Sonoma County
Super. Ct. No. SCR-654799)
Donald Parker appeals the denial of a petition under Penal Code
section 1170.95,1 which enables persons convicted of murder under theories of
accomplice liability invalidated by Senate Bill No. 1437 (SB 1437) to seek
resentencing. He contends that the trial court erred by denying his petition
without holding an evidentiary hearing at which he could testify to his state
of mind during the robbery in which his codefendant fatally shot the victim.
The court summarily denied the petition because the jury had made the
special-circumstance finding—in reality, two included findings—that Parker
(1) was a major participant in the robbery who (2) acted with reckless
indifference to human life. Those findings match, verbatim, the findings now
required by SB 1437 to support a felony-murder conviction of one who aids
and abets a killing. This court’s opinion affirming Parker’s conviction on
1 All statutory references are to the Penal Code.

-- 1 of 14 --

2
appeal held that the record contains substantial evidence to support the
jury’s finding.
Nonetheless, we conclude that the trial court erred in relying on the
jury’s finding to summarily deny the petition. The jury made that finding
before our Supreme Court clarified and narrowed the meaning of “reckless
indifference” in People v. Clark (2016) 63 Cal.4th 522 (Clark). The jury’s pre-
Clark finding should not foreclose the possibility that, under the clarified
standard and upon consideration of additional evidence, the trier of fact would
find that Parker did not act with reckless indifference, as defined in Clark. We
therefore will reverse the order denying the petition and remand with
instructions to issue an order to show cause.
Factual and Procedural History
This court affirmed the convictions of Parker and of David Espinal—the
actual killer—in People v. Espinal (Feb. 20, 2019, A146411 & A147074
[nonpub. opn.]). Our opinion describes how Parker and Espinal lured the
victim, Max Weinreb, to a motel room to rob him, on the pretext of
purchasing drugs from him.
Parker asked Weinreb to sell him 10 pounds of marijuana, and Weinreb
called a man named Noe who could supply that amount. Noe testified that he,
Weinreb, and Parker went to a motel room where Espinal was waiting. In the
room, Parker opened the curtains and window. When Weinreb asked for the
money to purchase the marijuana, Espinal looked at Parker and said, “You
ready, bro?” Parker replied affirmatively. Espinal lifted his shirt and reached
into his waistband. Fearing a robbery, Noe screamed and fled the room. He
heard shots, and later returned to find Weinreb’s body. Espinal fired the fatal
shots, and he and Parker fled with the drugs, without checking on Weinreb’s
condition. An ensuing search of the room revealed a roll of duct tape bearing

-- 2 of 14 --

3
Parker’s fingerprint under a pillow, which the prosecution argued showed that
Parker anticipated violence.
Parker did not testify at trial, but Espinal did. He admitted having shot
Weinreb but claimed to have done so in self-defense after Noe’s scream led
Weinreb to try to draw his own gun. Espinal described how, after the
shooting, he and Parker leapt out the window with the bag of marijuana, ran
to their car, and fled.
The jury found Espinal and Parker guilty of first degree murder (§ 187,
subd. (a)) and found true the special-circumstance allegation that the murder
occurred while Parker was engaged in a robbery in which he was a major
participant and acted with reckless indifference to human life (§ 190.2,
subd. (a)(17)).2 The court therefore sentenced Parker (and Espinal) to life in
prison without possibility of parole, and they appealed.
This court affirmed. We held that substantial evidence supported the
special-circumstance finding against Parker. As discussed in our opinion, the
jury was instructed with CALCRIM No. 703. As here relevant, that
instruction provided at the time of trial only that to prove the robbery-
murder special-circumstance allegation as to a defendant who was not the
actual killer, “the People must prove either that the defendant intended to
kill, or . . . all of the following: [¶] 1. . . . [¶] 2. The defendant was a major
participant in the crime; [¶] AND [¶] 3. When the defendant participated in
the crime, he . . .acted with reckless indifference to human life.” The
2 Under subdivision (b) of section 190.2, “every person, not the actual
killer, who, with reckless indifference to human life and as a major
participant,” aids or abets the commission of a qualifying felony resulting in
death, and is found guilty of first-degree murder, “shall be punished by death
or life in prison without the possibility of parole” if the jury finds true a
special circumstance listed in subdivision (a). Those circumstances include
robbery. (Id., subd. (a)(17).)

-- 3 of 14 --

4
instruction also stated that “[a] person acts with reckless indifference to
human life when he . . . knowingly engages in criminal activity that he knows
involves a grave risk of death” (ibid.)—a definition to which the court added,
“Reckless indifference to human life requires that the defendant be
subjectively aware that his participation in the felony involve[s] a grave risk of
death.” The prosecutor did not argue that Parker intended to kill, so that by
“finding the special-circumstance allegation true, the jury necessarily found
that [Parker] was a major participant in the crime and acted with reckless
indifference to human life.”
In analyzing the sufficiency of the evidence, this court relied on factors
that the Supreme Court had deemed relevant in two recent opinions—one
defining a “major participant” that was issued before the verdict in this case
(People v. Banks (2015) 61 Cal.4th 788 (Banks), and one defining “reckless
indifference” that was decided after Parker’s trial (Clark, supra, 63 Cal.4th
522). We found substantial evidence that Parker was a “major participant” as
Banks defined the term, and we concluded that, “[w]hile not all of [the factors
identified in Clark] tend to reflect that Parker was indifferent to whether
Weinreb lived or died, several do provide substantial support for the jury’s
finding.”
We summarized our reasons for reaching the latter conclusion, a close
issue with a decidedly mixed record, as follows: “Parker actively participated
in arranging a robbery in which he anticipated and prepared for resistance
and violence. He was present when the resistance and violence occurred and
the victim was shot. He may not have been able to stop the unanticipated
shooting, but he failed to render or summon aid when the need arose, instead
abandoning the victim and fleeing with the stolen marijuana.” We further
held that the special-circumstance finding “disposes of Parker’s argument . . .

-- 4 of 14 --

5
that he is entitled to relief under the 2019 amendments to the felony murder
rule. . . . [Citation.] [B]ecause the jury made the findings required by the new
law and those findings are supported by substantial evidence, there is no
basis for reversal.”
Four months after we issued our opinion affirming his conviction,
Parker petitioned for resentencing under section 1170.95. The trial court
issued an order appointing counsel and directing the district attorney to file a
response. After receiving that response and a reply by Parker, including a
declaration describing how he would testify at an evidentiary hearing, the
court denied the petition. It stated its reasons as follows: “[T]he court has
looked at the file, has looked at the Court of Appeal decision, and [has found
that] the following facts are clear: One, Parker was found guilty of first-
degree murder on a felony murder theory. That is the only theory . . .
presented at trial. [¶] Two, the jury was instructed with a modified version of
. . . CALCRIM 703 that incorporated factors identified by [Banks]. [¶] Three,
the jury found true a . . . section 190.2[, subdivision (a)(17)] allegation and
found that [Parker] was a ‘major participant’ who acted with ‘reckless
indifference to human life.’ [¶] And, four, in [Parker]’s direct appeal, the
Court of Appeal expressly found that under the standards set forth in [Banks]
and [Clark,] substantial evidence supported the jury’s finding that [Parker]
was a major participant who acted with reckless indifference to human life.
[¶] The Court of Appeal has already concluded that Parker’s jury[, in finding]
the special circumstance allegation true[,] necessarily found true the very
element that [SB 1437] would now require to be proved for the murder charge
itself. (See also People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411.) [¶]
Under these circumstances, the court finds that [Parker] is ineligible for any
[section] 1170.95 relief. The court further rejects [Parker]’s argument that

-- 5 of 14 --

6
[the] statutory scheme is intended to give [him] a second opportunity to
litigate through new evidence the major participant/reckless indifference
issue when that issue has already been fully litigated under the proper
standards in the context of the special circumstance allegation.” Parker timely
appealed.
Discussion
SB 1437 “significantly modif[ied] the law relating to accomplice liability
for murder.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 325, review
granted, Mar. 18, 2020, S260493.) “In its uncodified findings and declarations
the Legislature stated, ‘It is necessary to amend the felony murder rule . . . 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.’ ” (Ibid.)
SB 1437 also enacted section 1170.95, which authorizes petitions for
resentencing. Subdivision (a) of the statute requires that a petition allege that
the petitioner could not be convicted of murder because of changes in sections
188 and 189 made by SB 1437. Subdivision (c) creates a procedure to resolve
such a petition: “The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner falls within the
provisions of this section.’ ”3 The court shall appoint counsel (if requested), the
prosecutor shall file a response, and the petitioner may file a reply. (Ibid.) “If
3 We need not address the conflict between decisions holding that
section 1170.95 requires a court to conduct two distinct reviews of a petition’s
prima facie sufficiency—one before appointing counsel or ordering a response,
and a second before ordering an evidentiary hearing (e.g., People v. Verdugo,
supra, 44 Cal.App.5th at pp. 327–328)—and the recent decision by our
colleagues in Division One holding that the statute requires only one prima
facie review (People v. Cooper (2020) 54 Cal.App.5th 106, 118). The trial court
in this case conducted both reviews.

-- 6 of 14 --

7
the petitioner makes a prima facie showing that he or she is entitled to relief,
the court shall issue an order to show cause.” (Ibid.) Accordingly, a court will
not hold an evidentiary hearing unless it first finds a prima facie showing of
entitlement to relief. (People v. Edwards (2020) 48 Cal.App.5th 666, 673,
review granted July 8, 2020, No. S262481.)
Parker acknowledges that, in assessing whether he has made a prima
facie showing of entitlement to relief, the trial court may consider the trial
record and the opinion affirming the conviction. Here the record contains
evidence supporting the jury’s findings satisfying the elements of a felony-
murder conviction under current law, as affirmed in this court’s prior opinion.
However, although the jury necessarily found that Parker acted with “reckless
indifference,” it did so based on an instruction that did not incorporate the
elucidation of that concept subsequently provided by the Supreme Court in
Clark, supra, 63 Cal.4th 522. Clark identifies “case-specific factors” that
should be considered in assessing reckless indifference “in cases involving
nonshooter aiders and abettors to commercial armed robbery felony murders.”
(Id. at p. 618.) Those factors include the defendant’s knowledge of the use and
number of weapons, “proximity to the crime and opportunity to stop the
killing or aid the victim,” “awareness his or her confederate was likely to
kill,” and “efforts to minimize the possibility of violence during the crime,” as
well as the duration of the crime, “that is, ‘whether a murder came at the end
of a prolonged period of restraint of the victims by defendant.’ ” (In re Miller
(2017) 14 Cal.App.5th 960, 973 [summarizing Clark, supra, at pp. 618–623].)
Following Clark, the Judicial Council amended CALCRIM No. 703 by
adding an optional provision stating, “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

-- 7 of 14 --

8
necessarily enough, to determine whether the defendant acted with reckless
indifference to human life. Among the factors you may consider are: [¶] . . .
[¶] Did the defendant know that [a] lethal weapon[s] would be present during
the [underlying felony]? [¶] Did the defendant know that [a] lethal weapon[s]
(was/were) likely to be used? [¶] Did the defendant know that [a] lethal
weapon[s] (was/were) used? [¶] Did the defendant know the number of
weapons involved? [¶] Was the defendant near the person(s) killed when the
killing occurred? [¶] Did the defendant have an opportunity to stop the killing
or to help the victim(s)? [¶] How long did the crime last? [¶] Was the
defendant aware of anything that would make a coparticipant likely to kill?
[¶] Did the defendant try to minimize the possibility of violence? [¶] <insert
any other relevant factors>.” (CALCRIM No. 703, bullet points and some
brackets omitted.)
A year before Clark, while Parker’s trial was underway, the Supreme
Court issued Banks, supra, 61 Cal.4th 788, which clarified and narrowed the
meaning of “major participant.” The trial court was able to instruct the jury
with a version of CALCRIM No. 703 that was modified to include the factors
that Banks deems relevant to the major-participant inquiry. Therefore, we do
not question that the jury’s finding on the issue of major participation
precludes Parker from relying on that issue to show that he could not be
convicted of murder under current law. That issue was determined against
him based on the criteria established by Banks, and we assume that section
1170.95 does not allow him to relitigate that issue.4
4 Although Parker contended in passing below that he was entitled to
an evidentiary hearing on the major-participant issue as well, his briefs on
appeal seriously argue only that his prima facie showing entitles him to a
hearing on the issue of reckless indifference.

-- 8 of 14 --

9
However, the same is not true with respect to whether Parker’s
participation in the robbery leading to Weinreb’s killing indicated a reckless
indifference to human life. Although the jury so found, it did so based on an
instruction that did not explain the factors the Supreme Court later
determined to be relevant. While this court’s affirmance did consider those
factors in finding sufficient evidence in the record to uphold the jury’s
finding, Parker did not have the benefit of the court’s clarification when
deciding what evidence to present at trial and when arguing to the jury
whether reckless indifference had been proven. And, most significantly, the
jury was not told what those relevant factors are.
Thus, if the issue is presented to a trier of fact under the Clark criteria,
the prior determination will not, as a matter of law, logic, or fairness, require
the trier of fact to conclude that Parker’s participation in the robbery
reflected reckless indifference to human life. This is especially so if Parker
presents additional evidence that he did not present at trial because the
relevant factors had not been articulated, and because he chose to exercise
his Fifth Amendment right not to testify.
In People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24,
2020, No. S262011 (Torres), the Second Appellate District addressed a section
1170.95 petition challenging findings of major participation and reckless
indifference made before Banks and Clark. (Torres, supra, at p. 1179.) The
court held that “those jury findings alone do not preclude Torres from
showing today that he could not be convicted of . . . murder as redefined by
[SB] 1437.” (Ibid.) By “clarifying what it means for an aiding and abetting
defendant to be a ‘major participant’ . . . and to act with ‘reckless indifference
to human life,’ [Banks and Clark] construed section 190.2 in a significantly
different, and narrower manner” than prior decisions. (Ibid.) “Accordingly, in

-- 9 of 14 --

10
determining if Torres could be convicted today of first-degree murder, we
cannot simply defer to the jury’s pre-Banks and Clark factual findings that
Torres was a major participant who acted with reckless indifference to
human life as those terms were interpreted at the time.” (Ibid.) Two months
later, the same division of the Second District applied the same rule to a
similar case in People v. Smith (2020) 49 Cal.App.5th 85, 93, review granted
July 22, 2020, S262835 (Smith).
The trial court here denied Parker’s petition without holding an
evidentiary hearing because the court concluded that section 1170.95 is not
meant to give a defendant “a second opportunity to litigate through new
evidence the major participant/reckless indifference issue when that issue
has already been fully litigated under the proper standards in the context of
the special-circumstance allegation.” We assume this analysis is correct
insofar as it applies to the major-participant issue which, as pointed out
above, was tried under the correct standard as determined in Banks. However,
the issue of reckless indifference was not “fully litigated under the proper
standards,” as subsequently determined in Clark. Although the evidence was
held on appeal to be sufficient to uphold the finding, Parker was not given the
opportunity to persuade the fact finder otherwise under the clarified
standard, much less with the additional evidence he now seeks to present.
Section 1170.95 entitles him to introduce such evidence if he makes a prima
facie showing that he “could not be convicted of murder because of changes in
sections 188 and 189 made [by SB 1437].” (§ 1170.95, subd. (a)(3)).
In holding that a prior finding under the pre-Banks and pre-Clark
standards cannot justify the summary denial of a resentencing petition under
section 1170.95, Torres cites a 2017 case involving such a special-
circumstance finding that was challenged in a petition for a writ of habeas

-- 10 of 14 --

11
corpus. (Torres, supra, 46 Cal.App.5th at p. 1179, citing In re Miller, supra,
14 Cal.App.5th 960.)5 Torres cites Miller for the proposition that “ ‘[a]
[d]efendant’s claim that the evidence presented against him failed to support
[a] robbery-murder special circumstance [finding made prior to Banks and
Clark] . . . is not a “routine” claim of insufficient evidence.’ [Citation.] The
‘claim does not require resolution of disputed facts; the facts are a given.’
[Citation.] The question is whether they are legally sufficient in light of
Banks and Clark.” (Torres, supra, at p. 1179, quoting In re Miller, supra, at
pp. 979–980.)
In People v. Law (2020) 48 Cal.App.5th 811, review granted, July 8,
2020, S262490 (Law), the Fourth District Court of Appeal, Division Two,
held, in accord with Torres, that it is error to summarily deny a section
1170.95 petition based solely on a pre–Banks and Clark special-circumstance
finding. (Id. at p. 821) But the Court of Appeal in that case went on to review
the record itself and hold that, because that record included substantial
evidence on the basis of which a jury could have found major participation and
reckless indifference under Banks and Clark, the trial court’s error in
summarily denying the petition was harmless. (Id. at p. 825.) In Smith,
5 We are aware of recent decisions holding that a person convicted of
murder, and subject to a pre–Banks and Clark special-circumstance finding,
may not seek resentencing by filing a section 1170.95 petition but must
instead file a habeas corpus petition challenging the sufficiency of the
evidence to support the special-circumstance finding. (People v. Galvan (2020)
52 Cal.App.5th 1134, 1142 [holding that the reason such a defendant “could
not be convicted” of murder ”is not ‘because of changes’ made by [SB] 1437,
but because of the clarification of the requirements for the special
circumstance finding in Banks and Clark”], review granted Oct. 14, 2020,
No. S264284.) Other courts have rejected that view. (See, e.g., People v. York
(2020) 54 Cal.App.5th 250, 258–262.) Here, the Attorney General does not
argue that Parker must seek relief via habeas corpus instead of under
section 1170.95.

-- 11 of 14 --

12
supra, 49 Cal.App.5th 85, the court rejected that harmless-error analysis.
Smith holds that, in a case involving a pre–Banks and Clark special-
circumstance finding, the court may not deny a section 1170.95 petition and
decline to appoint counsel solely because the facts recited in the opinion
affirming the conviction satisfy the standards set forth in Banks and Clark.
(Smith, at p. 95.) Such review is inadequate, Smith holds, because the trial
record is “not the only consideration that the trial court must take into
account for purposes of section 1170.95.” (Ibid.)
We agree with the Smith court’s explanation: “Where the record of
conviction does not preclude a petitioner from making a prima facie showing
that he falls within the statute’s provisions as a matter of law, the petitioner
is not confined to presenting evidence contained in the record of conviction
. . . . Section 1170.95 provides ‘the petitioner may rely on the record of
conviction or offer new or additional evidence to meet [his] burden[].’ (§ 1170,
subd. (d)(3).) . . . Smith may be able to provide evidence not presented at trial
that would demonstrate either that he was not a major participant . . . or did
not act with reckless indifference . . . . By ruling prior to the appointment of
counsel, the trial court deprived Smith of the opportunity to develop, with the
aid of counsel, a factual record beyond the record of conviction . . . . [¶] We
therefore cannot conduct our own assessment of the trial evidence to
determine whether Smith was a major participant and acted with reckless
indifference to human life, or . . . use that record evidence to inquire whether
the deprivation of counsel was harmless error, as [the Court of Appeal did] in
[Law, supra,] 48 Cal.App.5th 811. . . . [The Law court] undertook its own
analysis of the existing record facts . . . [and held that] any error [in not
appointing counsel] was harmless, because counsel could not have obtained a
more favorable result, ‘[g]iven the trial evidence.’ [Citation.] [¶] We

-- 12 of 14 --

13
respectfully disagree with this reasoning. In enacting [SB] 1437, the
Legislature provided that a petitioner may meet his or her burden by offering
new or additional evidence. Therefore, we cannot say at this stage of the
proceedings that failure to appoint counsel was harmless ‘given the trial
evidence’; by the express terms of section 1170.95, subdivision (d)(3), counsel is
not limited to the trial evidence.” (Smith, supra, 49 Cal.App.5th at pp. 95–96.)
Here, unlike in Smith, the trial court did appoint counsel and allow
Parker to file a reply. Nonetheless, in denying his petition without holding an
evidentiary hearing, the trial court relied exclusively on the evidence on
which the conviction was affirmed, without permitting Parker to present
additional evidence or to convince the fact finder that he did not act with
reckless indifference to life under the criteria articulated in Clark.
The Attorney General does not discuss the above authorities or develop
a reasoned argument to support his assertion that, “Based on this court’s
prior holding alone, appellant was not entitled to relief.”6 The Attorney
General contends that, even considering Parker’s declarations, “the case file,
and the parties’ briefing,” there is “significant evidence that [Parker] acted
with reckless indifference to human life.” But, as the cited cases point out,
6 Without elaboration, the Attorney General cites People v. Cornelius
(2020) 44 Cal.App.5th 54, review granted Mar. 18, 2020, No. S260410, and
People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411. Neither supports the
Attorney General’s position. Cornelius held that a court did not err in
summarily denying a section 1170.95 petition because the defendant was not
convicted on a theory of felony murder or natural-and-probable-consequences
liability, but as the actual killer. (44 Cal.App.5th at p. 58.) In Gutierrez-
Salazar the defendant raised the newly enacted SB 1437 on direct appeal
from his conviction. (38 Cal.App.5th at pp. 413, 416–417.) The court held that
he was unentitled to relief because his jury had made special-circumstance
findings of major participation and reckless indifference and he—unlike
Parker—had not challenged the sufficiency of the evidence to support those
findings. (Id. at p. 419.)

-- 13 of 14 --

14
the sufficiency of the evidence at trial does not establish that Parker failed to
make a prima facie showing that, under current law, he could not be found to
have acted with reckless indifference. To make such a showing, he need not
show that the record is devoid of evidence to support the prior finding.
Section 1170.95 requires only that, if the issue has not already been decided
under the correct standard, he identify evidence that, if credited, would
enable a trier of fact to find in his favor. (See People v. Drayton (2020) 47
Cal.App.5th 965, 977–978.)
While conceding that Parker’s declaration described relevant new
evidence, the Attorney General also contends that the declaration contains
admissions that support a finding of reckless indifference. But so long as
Parker’s proffered evidence would support a contrary finding, in determining
whether an evidentiary hearing is required neither the trial nor appellate
court may (and the trial court here did not) weigh the evidence. (See People v.
Drayton, supra, 47 Cal.App.5th at p. 982 [trial court reviewing prima facie
showing “should not have evaluated and weighed the evidence but . . .
accepted petitioner’s asserted facts as true”].) Section 1170.95 assigns that
task to the trial court, sitting as a trier of fact, only after it holds an
evidentiary hearing and considers all evidence that is presented. (§ 1170,
subd. (d)(3).)
Disposition
The order denying the petition is reversed and the matter is remanded
with directions to issue an order to show cause setting an evidentiary hearing.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
TUCHER, J.

-- 14 of 14 --