Filed 9/21/26 P. v. Farfan CA2/2
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B337498
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA136699)
v.
OPINION ON REMAND
JOSUE FARFAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Carol J. Najera, Judge. Affirmed.
George L. Schraer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and
Charles C. Ragland, Chief Assistant Attorneys General, Susan
Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and
Daniel C. Chang, Deputy Attorneys General, for Plaintiff and
Respondent.
In July 2016, a jury convicted Josue Farfan of murder and
found true a robbery-murder special circumstance. In 2023, he
petitioned for resentencing under Penal Code section 1172.6.1
The trial court denied his petition at the prima facie stage, and
we affirmed because the jury’s true finding on the special
circumstance came after Banks and Clark.2 (People v. Farfan
(April 28, 2025, B337498) [nonpub. opn.].)
Our Supreme Court granted review and transferred the
matter back to us with directions to vacate our decision and
reconsider the cause in light of People v. Lopez (2026) 19 Cal.5th
639 (Lopez), which held that defendants are “not categorically
ineligible for relief” under section 1172.6 merely because they
“ ‘could have raised their challenges to imputed malice on prior
direct appeal.’ ” (Id. at p. 649.) We have followed the Supreme
Court’s directions and again affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts3
Kamell Heno was a delivery driver for a company that
bought and sold cigarettes. On the morning of December 4, 2014,
Heno drove a large truck to pick up $217,000 worth of cigarettes,
1 Undesignated statutory references are to the Penal Code.
2 People v. Banks (2015) 61 Cal.4th 788 (Banks) and People
v. Clark (2016) 63 Cal.4th 522 (Clark).
3 The facts are drawn from two prior appellate opinions in
this case—the 2018 opinion affirming appellant’s conviction
(People v. Farfan (Feb. 8, 2018, B277516) [nonpub. opn.], mod.
Mar. 2, 2018), and the 2021 opinion affirming the summary
denial of his brother’s petition for resentencing under section
1172.6 (People v. Farfan (2021) 71 Cal.App.5th 942 (Farfan)).
2
which he was scheduled to take to a store in La Verne. He never
made it to that store.
That afternoon, Heno’s truck was found parked on South
Grand Avenue in Los Angeles. It contained about 10 percent of
the cigarettes he had picked up that morning. Heno was found
dead on the floor of the truck with a red stained cloth over his
head and his face wrapped in duct tape that covered his eyes and
mouth, touching the bottom of his nose. He had two projectile
head wounds from a BB gun and multiple abrasions, lacerations,
and bruises on his head, neck, and upper extremities. An
autopsy showed that the cause of death was asphyxiation.
Before December 4, appellant, his wife, and his brother
Edgar Farfan (Edgar) planned to rob a delivery truck of its cargo
of cigarettes. On the morning of December 4, Edgar drove
appellant and his wife to the store where Heno’s truck was
parked, where they waited until the truck pulled out. Edgar
followed the truck onto the freeway and then to a wholesaler and
a Costco. When the truck left Costco, Edgar followed it onto the
freeway and hit Heno’s truck with his SUV to make it stop.
The truck pulled over, and Heno got out. Edgar got out of
his car carrying a BB gun, and shoved Heno into the passenger
side of the truck. Appellant got into the truck, and the brothers
drove it away with Heno. Appellant’s wife followed them in
Edgar’s SUV. The truck eventually exited the freeway, drove
into a neighborhood, and parked. Appellant, his wife, and Edgar
moved cigarettes from the truck to the SUV and then drove away,
leaving Heno in the cab of his truck.
II. Conviction and appeal
On July 26, 2016, a jury convicted appellant and Edgar of
murder (§ 187, subd. (a)), kidnapping for robbery (§ 209, subd.
3
(b)(1)), and second degree robbery (§ 211). The jury also found
true the special circumstance that appellant and Edgar
committed the murder while engaged in the commission of a
robbery. (§ 190.2, subd. (a)(17).) The trial court sentenced each
to life without the possibility of parole for the murder, plus five
years for the robbery conviction. (People v. Farfan, supra,
B277516.) This court affirmed the judgment on appeal. (Ibid.)
III. Edgar’s petition for resentencing and appeal
In 2020, Edgar filed a petition for resentencing under
section 1172.6, which the trial court summarily denied. On
appeal, this court concluded that the trial court erred in failing to
appoint counsel or accept briefing from the parties, but that such
error was harmless because “the jury’s special circumstance
finding in this case means it necessarily found beyond a
reasonable doubt that appellant either had the intent to kill or he
was a major participant in the robbery who acted with reckless
disregard for human life.” (Farfan, supra, 71 Cal.App.5th at
p. 954.) This court further observed that because “the special
circumstance finding was made after, not before[,] Banks and
Clark were decided,” the matter fell outside the scope of the then-
existing split about whether pre-Banks and Clark special
circumstance findings precluded petitioners from 1172.6 relief as
a matter of law. (Id. at p. 955, fn. omitted.)
IV. Appellant’s petition for resentencing
In September 2023, appellant filed a petition for
resentencing under section 1172.6. The trial court appointed
counsel, and the parties filed briefing. At the March 22, 2024,
hearing, the parties submitted on their briefs, and the trial court
denied appellant’s petition, finding him “ineligible as a matter of
law” for relief under section 1172.6.
4
DISCUSSION
Section 1172.6 permits a defendant “convicted of felony
murder or murder under the natural and probable consequences
doctrine” to vacate his murder conviction if, as a threshold
matter, he makes a “prima facie showing” of entitlement to relief.
(§ 1172.6, subds. (a) & (c).) This, in turn, requires a showing
that, among other things, he “could not presently be convicted of
murder” under the amendments to the murder statutes that
became effective on January 1, 2019. (Id., subd. (a)(3).) As
amended, the murder statutes still permit a conviction based on
murder committed by someone else in the course of a jointly
committed felony if the defendant “was a major participant in the
underlying felony and acted with reckless indifference to human
life.” (§ 189, subd. (e)(3).)
In Banks, supra, 61 Cal.4th 788, and Clark, supra, 63
Cal.4th 522, our Supreme Court clarified the phrases “major
participant” and “reckless indifference.” In People v. Strong
(2022) 13 Cal.5th 698, 717 (Strong), the court recognized that
felony-murder special circumstance findings made before Banks
and Clark no longer necessarily reflect a determination under the
correct legal standard and thus held that such pre-Banks and
Clark findings “do not preclude a defendant from making out a
prima facie case for relief” under section 1172.6. (Strong, at p.
710.) Felony-murder special circumstance findings made after
Banks and Clark, however, do “ordinarily establish a defendant’s
ineligibility for resentencing under [section 1172.6] and thus
preclude the defendant from making a prima facie case for relief.”
(Strong, at p. 710; see also id. at p. 715 [“every appellate court to
consider the issue . . . [has] agree[d] that post-Banks and Clark
findings ordinarily do foreclose section 1172.6 resentencing”].)
5
Appellant concedes the validity of the “major participant”
prong, but argues that the “reckless indifference” aspect of the
jury’s finding does not render him ineligible for relief as a matter
of law, even though he was tried and convicted after Clark was
decided.4 To support his position, he notes that “neither the
instructions nor the parties mentioned any of the factors” set
forth in Clark with regard to reckless indifference. Such mention
was not required, however, because “the standard jury
instruction has not in fact changed in the wake of Banks and
Clark.” (Strong, supra, 13 Cal.5th at p. 719, fn. omitted; accord,
Farfan, supra, 71 Cal.App.5th at p. 955.) Instead, it now includes
a list of the Banks and Clark factors that may be given in the
trial court’s discretion. (Farfan, at p. 955; CALCRIM No. 703.)
Appellant also argues that his jury’s post-Clark finding of
reckless indifference should not preclude him from relief under
Strong because Strong’s rationale does not extend to situations
where, as here, appellant’s trial took place less than one month
after Clark was decided and trial counsel did not discuss the
Clark factors. (Strong, supra, 13 Cal.5th at p. 710.) We are
unpersuaded that these circumstances justify blurring the line
Strong and “every appellate court to consider the issue” have
drawn between pre- and post-Banks and Clark findings. (Strong,
at p. 715 [“Had the Legislature intended to permit wholesale
relitigation of findings supporting murder convictions in the
context of section 1172.6 resentencing, we expect it would have
said so more plainly”]; Lopez, supra, 19 Cal.5th at p. 668 [“the
Legislature did not ‘open resentencing to every previously
convicted murder defendant’ ”].)
4 Clark was decided on June 27, 2016, and appellant’s trial
began on July 12, 2016.
6
Lopez held that when jury instructions are ambiguous or
“even openly flawed,” the mere fact that the “flaws were not
raised in a prior opinion” should not preclude an appellant from
making out a prima facie case. (Lopez, supra, 19 Cal.5th at p.
668.) The instructions given at appellant’s trial were neither
ambiguous nor flawed. The jury’s finding on the special
circumstance therefore has preclusive effect. (Strong, supra, 13
Cal.5th at p. 710 [“findings made after Banks and Clark
ordinarily establish a defendant’s illegibility for resentencing
under Senate Bill 1437 and thus preclude the defendant from
making a prima facie case for relief”]; Lopez, at p. 667 [“general
principles of issue preclusion inform consideration of the effect of
prior jury findings in a resentencing proceeding under section
1172.6”].)5
Appellant filed a second supplemental brief to urge that the
recently decided People v. Morris (2026) 19 Cal.5th 671 (Morris)
“provides a separate reason for reversal of the trial court’s order.”
Morris held that murder under a theory of direct aiding and
abetting requires “that the nonkiller aid or abet the actual killer
in the lethal act itself, and not just the underlying felony.” (Id. at
p. 693.) We agree with the People that Morris has no application
to this case.
5 In our prior opinion, we cited now disapproved People v.
Burns (2023) 95 Cal.App.5th 862, 867–868, for the proposition
that claims related to counsel’s failure to discuss or request
instructions on the Clark factors (ineffective assistance of counsel
claims) are not the proper subject of a petition for resentencing
because they could have been but were not raised on direct
appeal. This was an aside, however, given that appellant does
not raise such claims.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
GOORVITCH, J.
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