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Name: People v. Gray
Case #: C096335
Opinion Date: 06/26/2023
Attorney: William W. Lee

The Court of Appeal reversed the trial court’s order denying appellant’s Penal Code section 1172.6 petition at the prima facie stage. At appellant’s trial, the jury was instructed on felony murder and two alternate theories requiring intent to kill. It found appellant guilty of first degree murder, without indicating which theory it relied on, with kidnapping and lying-in-wait special circumstances. First, nothing in the record of conviction that is properly considered at the prima facie stage indicated appellant was the actual killer. Second, the true finding on the kidnapping circumstance did not establish appellant was a major participant who acted with reckless indifference to human life. The finding predated the California Supreme Court’s opinions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, which “both substantially clarified the law governing findings under [section] 190.2, subdivision (d)” and what constitutes a major participant and acting with reckless indifference to human life. (People v. Strong (2022) 13 Cal.5th 698.). Finally, the true finding on the lying-in-wait special instructions and prosecutor’s arguments as to the lying-in-wait circumstance may have permitted the jury to find that circumstance allegation true without finding appellant personally had the intent to kill. The Court of Appeal ordered the trial court to issue an order to show cause and to conduct further proceedings in accordance with section 1172.6.