People v. Dyer CA5

Opinion

Filed 9/23/26 P. v. Dyer CA5 Opinion following transfer 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F087074 Plaintiff and Respondent, (Super. Ct. No. CF02902077) v. STACEY DANIELLA DYER, OPINION Defendant and Appellant.

APPEAL from an order of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Robert L.S. Angres, 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, Kimberley A. Donohue, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- INTRODUCTION In 2004, a jury convicted defendant and appellant Stacey Daniella Dyer of first degree murder and found true felony-murder special-circumstance allegations pursuant to Penal Code section 190.21 alleging that the murder was committed during the commission or attempted commission of robbery, kidnapping, and carjacking. Following the passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), defendant filed a petition for resentencing, asserting she was entitled to resentencing under the new laws. The court denied defendant’s petition, finding she was ineligible for relief. We previously affirmed the court’s order in an unpublished opinion, concluding the record established defendant was ineligible for resentencing as a matter of law based on the true findings on the special circumstance allegations. Defendant petitioned for review. The California Supreme Court transferred the case back to us with directions for our court to vacate our decision and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). Thereafter, we reversed the court’s order and remanded the matter for the court to hold further proceedings. On remand, the trial court again concluded that the record of conviction in this matter established defendant is categorically ineligible for relief under section 1172.6. Defendant appealed from that order, arguing the court erred in failing to issue an order to show cause and proceed to an evidentiary hearing. She argued the jury instructions permitted the jury to convict her as the actual killer even if it did not conclude she personally killed the victim as required under the amended law. She also argued the aiding and abetting and accomplice jury instructions permitted the jury to conclude the special circumstance attached even if defendant only proximately caused death without a mental state consistent with malice aforethought.

1 All further undesignated statutory references are to the Penal Code.

2. In our previous opinion, we again affirmed, relying on the modified version of CALJIC No. 8.80.1 instruction given in this case and holding the jury’s special circumstance finding established the jury either found (1) “beyond a reasonable doubt that the [defendant] actually killed a human being” or, (2) if it was unable to decide whether defendant was the actual killer or an aider and abettor, it found “beyond a reasonable doubt that such [defendant] with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of robbery, kidnapping, and/or carjacking which resulted in the death of a human being, namely Donald Jamison Hunter.” Defendant petitioned for review, and the California Supreme Court transferred the matter back to us with directions for us to vacate our decision and reconsider the cause in light of People v. Morris (2026) 19 Cal.5th 671 (Morris). We and the parties now agree that the court’s order must be reversed, and the matter must be remanded for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL HISTORY Defendant and two codefendants (Daniel Ortega and Jesus Lopez) were charged with first degree murder (§ 187; count 1) and three special circumstances alleging they committed the murder during the commission or attempted commission of robbery (§ 190.2, subd. (a)(17)(A)), kidnapping (id., subd. (a)(17)(B)), and carjacking (id., subd. (a)(17)(L)). It was also alleged that each defendant was armed with a firearm during the commission of the murder (§ 12022, subd. (a)(1)). Each defendant was also separately charged with second degree robbery (§ 211; count 2) and kidnapping (§ 207, subd. (a); count 3). A jury convicted defendant (and both codefendants) of all the charges and found true the three felony-murder special-circumstance allegations and the allegation that defendant was armed with a firearm during the commission of the murder. The court sentenced defendant to life imprisonment without the possibility of parole plus an additional year on the murder count; determinate sentences on counts 2 and 3 were 3. ordered stayed pursuant to section 654. Our court affirmed defendant’s conviction in an unpublished opinion. (People v. Lopez (Mar. 12, 2007, F045815).) In February 2019, defendant filed a form petition for resentencing pursuant to section 1170.95, hereafter section 1172.6.2 She checked boxes stating a charging document had been filed against her allowing the prosecution to proceed under a felony- murder theory or the natural and probable consequences doctrine; at trial, she was convicted of first or second degree murder under the felony-murder rule or the natural and probable consequences doctrine; and she could not now be convicted of murder in light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to Senate Bill 1437). She also checked a box requesting that counsel be appointed for her during the resentencing process. The People opposed the petition, arguing the special circumstance findings rendered defendant ineligible for relief because she would have been convicted of murder despite the statutory changes made by Senate Bill 1437. Specifically, they argued “the jury found beyond a reasonable doubt that the [defendant] was guilty of committing this murder during the commission of a robbery, kidnapping and carjacking. On that basis, [defendant] at least has been found to be a major participant in the underlying robbery, carjacking and kidnapping and has been found to have acted with reckless indifference to human life.” They also moved to dismiss the petition, arguing Senate Bill 1437 was unconstitutional. The superior court denied the petition, concluding defendant failed to make a prima facie showing she fell within the provisions of section 1172.6. The court held:

“[Defendant] with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission 2 Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. For purposes of clarity, we refer to the statute as section 1172.6.

4. of murder in the first degree and was a major participant in the robbery, kidnapping and carjacking and acted with reckless indifference to human life. [Defendant] is not eligible for resentencing.” Our court originally affirmed the trial court’s order but later reversed and remanded the matter for further proceedings in an unpublished opinion after the case was transferred back from the California Supreme Court with directions for us to reconsider our holding in light of People v. Strong, supra, 13 Cal.5th 698. (See People v. Dyer (Nov. 22, 2022, F079609) [nonpub. opn.].) After the remittitur issued, the trial court reappointed defendant counsel for further proceedings. Thereafter, the People filed another opposition on the merits to defendant’s section 1172.6 petition for resentencing, asserting the jury found beyond a reasonable doubt that defendant was either the actual killer within the meaning of section 189, subdivision (e)(1), or aided and abetted with intent to kill within the meaning of section 189, subdivision (e)(2). The People asserted defendant was necessarily convicted under a still-valid theory based upon the jury instructions. Specifically, the jury convicted defendant of first degree murder and found true three felony-murder special circumstances. And, “[i]n CalJic 8.80.1, [defendant] [sic] jury was told that they could not find these special circumstances true unless they found that defendant was the actual killer or that she ‘… with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of robbery, kidnapping, and/or carjacking which resulted in the death of a human being, namely Donald [Jamison] Hunter.’ Thus, the jury found that defendant was either (1) the actual killer within the meaning of § 189(e)(1) or (2) aided and abetted with the intent to kill within the meaning of § 189(e)(2).” In a footnote, the People noted section 189, subdivision (e)(2) “and the language of the jury instruction differ in that the former says ‘… or assisted the actual killer in the commission of murder in the first degree’ and the latter says ‘… in the commission of robbery, kidnapping, and/or carjacking which resulted in the death of a human being, namely Donald [Jamison] Hunter.’ Logically, 5. one cannot act in the former manner and not be acting in the latter, and vice versa. The key is intent to kill.” The People also asserted that defendant’s presence was not necessary during the prima facie proceedings. Defendant filed a reply asserting she filed a facially sufficient petition, and the court should not consider the appellate opinions in this matter in determining whether a prima facie case had been made, citing People v. Flores (2022) 76 Cal.App.5th 974, 988. On October 20, 2023, the trial court held a hearing on whether defendant had established a prima facie case for relief. The People argued the petition should be denied as a matter of law based on the record of conviction. They argued:

“We know that she was convicted of first degree murder under a felony murder and some of the specials such as the robbery, the kidnap [sic] and the carjacking were found to be true by the jury.

“When we look at the jury instructions it’s pretty clear that she does not get relief according to the changes that were brought about by SB 1437 and 775. And that is because as it relates to felony murder, and this was a felony murder prosecution, there were no jury instructions on malice aforethought. This was a straight felony murder prosecution. So for her to actually get the benefit of the SB 1437 changes, the jury would have had to essentially receive the jury instructions dealing with natural, not natural and probable consequences, but major participant and reckless indifference.

“As we know under current law, folks that are involved in felony murder crimes are still liable, criminally liable for murder, if they are the actual killers, aiders and abettors with intent to kill, or major participants acting with reckless indifference.

“The jury instructions that were provided to [defendant’s] jury did not have the major participant, reckless indifference language that we sometimes see. So the only instructions that they received where—and specifically with [defendant], because if we want to call it for what it is, based on the record of conviction she was not the killer, and we know that because there is a gun use finding that is the vicarious arming. The jury found that to be true as it related to her. So obviously she’s an aider and abettor. But according to the jury instruction, if she’s an aider and abettor, the jury had to find beyond a reasonable doubt that she had the intent to kill, and with that intent, she aided and abetted. And that’s essentially the 6. crux of this case and that’s the reason why she’s not eligible for relief. She’s an aider and abettor with intent to kill, therefore, as a matter of law, she’s not entitled to the relief that SB 1437 provides.” The court again denied defendant’s petition for relief without issuing an order to show cause or holding an evidentiary hearing. It explained:

“The Court has made an independent review of the record in this case including the jury instructions provided to the jurors and the verdict form indicating the decision of the jury in this case. The Court notes that the jurors in [defendant’s] case were specifically instructed pursuant to CALJIC 8.80.1 that they could not find a special circumstance to be true as to a defendant unless they were satisfied beyond a reasonable doubt that that defendant, … with the intent to kill, aided, abetted, counseled, commanded, induced, solicited requested or assisted in the act or in the commission of the underlying felony offenses, in this instance robbery, kidnapping and/or carjacking, which resulted in the death of a human being, in this case Donald [Jamison] Hunter. The jury finding that [defendant] was guilty of murder, finding the special circumstance to be true pursuant to 8.80.01, that she was an aider and abettor in the underlying crimes with the intent to kill, is a finding which takes her outside of the possibility of resentencing under 1172.6. In other words, [defendant] could still be convicted of murder under existing law as a matter of law based upon the jury’s finding of facts, not this Court’s finding of facts. Accordingly, because the jurors found that she had acted with an intent to kill as required under Penal Code Section 189(e)(2) as amended, she is not eligible for resentencing as a matter of law and the petition for resentencing is denied.” DISCUSSION Defendant appeals the court’s denial of her petition for resentencing. For the reasons that follow, we reverse the court’s order and remand for further proceedings. I. Jury Instructions. Here, the jury was instructed on felony murder with CALJIC No. 8.21 as follows:

“The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission of the crime of robbery, kidnapping and/or carjacking is murder of the first degree when the perpetrator had the specific intent to commit that crime.

7. “The specific intent to commit a robbery, kidnapping, and/or carjacking and the commission of that crime must be proved beyond a reasonable doubt.” The jury was also instructed on aiding and abetting first degree felony murder pursuant to CALJIC No. 8.27:

“If a human being is killed by any one of several persons engaged in the commission of the crimes of robbery, kidnapping, and/or carjacking, all persons, who either directly and actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.” Most relevant here, the jury was instructed on the special circumstances allegations pursuant to CALJIC No. 8.80.1 as follows:

“If you find the defendant in this case guilty of murder of the first degree, you must then determine if one or more of the following special circumstances is true or not true. Was the murder committed while the defendant was engaged in, or an accomplice in, the commission of the following felonies within the meaning of Penal Code section 190.2(17):

“(A) Robbery;

“(B) Kidnapping; and/or “(L) Carjacking.

“The People have the burden of proving the truth of a special circumstance. If you have a reasonable doubt as to whether a special circumstance is true, you must find it to be not true.

“If you are satisfied beyond a reasonable doubt that the defendant actually killed a human being, you need not find that the defendant intended to kill in order to find the special circumstance to be true.

“If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, 8. commanded, induced, solicited, requested, or assisted any actor in the commission of robbery, kidnapping, and/or carjacking which resulted in the death of a human being, namely Donald Jamison Hunter.

“You must decide separately as to each of the defendants the existence or nonexistence of each special circumstance alleged in this case. If you cannot agree as to all the defendants, but can agree as to one or more of them, you make your finding as to the one or more upon which you do agree. [¶] … [¶]

“You must decide separately each special circumstance alleged in this case as to each of the defendants. If you cannot agree as to all of the special circumstances, but can agree as to one or more of them, you must make your finding as to the one or more upon which you do agree.

“You will state your special finding as to whether this special circumstance is or is not true on the verdict form that will be supplied.” II. Applicable Law.

A. Senate Bill 1437 and Senate Bill No. 775. On September 30, 2018, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 “amend[s] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added section 1170.95, now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.) Accordingly, section 188 now provides that, “[e]xcept as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her 9. participation in a crime.” (§ 188, subd. (a)(3), italics added.) The change reflects the Legislature’s intent that “[a] person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).) Additionally, section 189 previously stated, “All murder … which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.” Senate Bill 1437 amended section 189, in part, by adding subdivision (e) which provides:

“A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” The legislation also added section 1172.6, which provides a procedure by which defendants whose cases are final can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.) Initially, section 1172.6 (former § 1170.95) permitted those “convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts ….” (Stats. 2018, ch. 1015, § 4, subd. (a).) In Senate Bill No. 775 (2021–2022 Reg. Sess.) effective January 1, 2022, the Legislature amended the language of this section to expand the scope of the petitioning procedure, in part, by expressly permitting persons convicted of attempted murder under 10. the natural and probable consequences doctrine to petition for relief. (Stats. 2021, ch. 551, § 2.) Under the amended statute, an offender may file a petition under section 1172.6 where all three of the following conditions are met:

“(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine[;]

“(2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder[; and]

“(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a)(1)–(3).) Upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. (§ 1172.6, subd. (b)(3).) “After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief.” (Id., subd. (c).) “If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.” (Ibid.) “The record of conviction will necessarily inform the trial court’s prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless.” (People v. Lewis (2021) 11 Cal.5th 952, 971.) At the prima facie inquiry stage, “ ‘ “the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause.” ’ ” (Ibid.) “ ‘However, if the record, including the court’s own documents, “contain[s] facts refuting the allegations made in the petition,” then “the court is justified in making a credibility 11. determination adverse to the petitioner.” ’ ” (Ibid.) “In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.) “If the petitioner has made a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause.” (§ 1172.6, subd. (c).) “Within 60 days after the order to show cause has issued,” the trial court must then hold a hearing “to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (Id., subd. (d)(1).)

B. Morris. In Morris, supra, 19 Cal.5th 671, the defendant was convicted in 2013 of first degree murder (§ 187, subd. (a)) and the jury found true special circumstances for rape (§ 190.2, subd. (a)(17)(C)), robbery (id., subd. (a)(17)(A)) and murder for financial gain (id., subd. (a)(1)). (Morris, at p. 679.) The defendant filed a section 1172.6 petition for relief in 2022. (Morris, at p. 680.) The trial court summarily denied the defendant’s section 1172.6 petition for relief at the prima facie stage, reasoning the special circumstances jury instruction established the defendant acted with intent to kill, so he was statutorily ineligible for section 1172.6 relief. (Id. at p. 680.) In a split decision, the Court of Appeal in Morris affirmed the denial of the defendant’s section 1172.6 petition on other grounds, concluding the defendant “was precluded as a matter of law from obtaining section 1172.6 relief because the jury found Morris acted with an intent to kill and that Morris was engaged in committing the underlying felonies with the killer at the time the homicidal act took place. [Citation.] The majority [in the Court of Appeal] rejected Morris’s argument that the actus reus required under section 189, 12. subdivision (e)(2) requires aiding and abetting the actual killer in the lethal act, and not just the underlying felonies.” (Morris, at pp. 680–681.) The dissent asserted that in a felony-murder prosecution of a nonkiller participant, the People are required to prove that the defendant aided the actual killer in the commission of first degree murder. (Id. at p. 681.) The California Supreme Court granted review and held the phrase “ ‘aided … or assisted the actual killer in the commission of murder in the first degree’ ” in section 189, subdivision (e)(2) “requires proof the defendant aided or abetted the actual killer in the lethal act itself, and not just the underlying felony.” (Morris, supra, 19 Cal.5th at pp. 678, 681–686.) Morris reasoned that “[t]he commonsense meaning of aiding or abetting ‘the actual killer in the commission of murder in the first degree,’ involves aiding or abetting the killing of a human being, and not just aiding another in the commission of an enumerated felony by an act that does not aid in the killing.” (Id. at p. 683.) Additionally, Morris found “reading section 189, subdivision (e)(2) in context with the remainder of subdivision (e) reinforces that the provision requires a nonkiller to aid the actual killer in the lethal act itself.” (Ibid., fn. omitted.) Specifically, Morris observed the Legislature used the phrase “ ‘underlying felony’ ” elsewhere in section 189 but not in subdivision (e)(2) evidencing that it “knows how to use the term ‘underlying felony’ in section 189 when that is the intent.” (Morris, at pp. 683–684.) Morris further explained that section 189, subdivision (e)’s preamble “already requires participation in a qualifying felony and it then lists three subparts with additional requirements for establishing felony-murder liability,” so if subdivision (e)(2) only required “ ‘aiding’ ” in the underlying felony it would be redundant of subdivision (e)’s “ ‘participation’ requirement.” (Morris, at p. 684.) In light of its conclusion, the Morris court reversed the opinion of the Court of Appeal and remanded the matter for reconsideration under this standard. (Id. at p. 693.)

13. III. Analysis. In her original briefing, defendant argued the court erred in concluding the record of conviction refuted the allegations in her facially sufficient petition. She asserted the jury’s true finding as to the special circumstance allegation and the jury having been instructed with CALJIC No. 8.80.1 did not establish as a matter of law that she is ineligible for relief under section 1172.6. She argued that “courts have reiterated that the special circumstance allegation does not extend to those who cause a death, but only to those who personally kill the victim,” citing People v. Garcia (2020) 46 Cal.App.5th 123 and People v. Lopez (2022) 78 Cal.App.5th 1 in support. And she asserted the given instructions, including CALJIC No. 8.80.1, permitted the jury to find the special circumstance allegation true if it concluded she was the proximate cause of the murder, even if she lacked the intent to kill or did not personally kill the victim. She asserted “[a]n actual killer must personally kill the victim; proximate causation will not suffice for murder liability to attach.” We previously rejected defendant’s contentions but now we, and the parties, agree that reversal is required in light of Morris.3 Here, in light of the modified CALJIC No. 8.80.1 instruction given in this case, the jury’s special circumstance finding establishes it either found (1) “beyond a reasonable doubt that the defendant actually killed a human being” or, (2) if it was unable to decide whether defendant was the actual killer or an aider and abettor, it found “beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of robbery, kidnapping, and/or carjacking which resulted in the death of a human being, namely Donald Jamison Hunter.” But, with regard to the latter finding, 3 Because we reverse the trial court’s order on this basis, we do not address defendant’s other contentions further.

14. pursuant to Morris, such a finding is insufficient to establish the requisite actus reus to the extent defendant was convicted as a nonkiller. That is, to the extent the jury convicted defendant as an aider and abettor, under the law as amended, it was required to find that defendant, with the intent to kill, aided, abetted counseled, commanded, induced, solicited, requested or assisted the actual killer in the lethal act itself, and not just the underlying felony. (See People v. Morris, supra, 19 Cal.5th at p. 683.) However, the record of conviction does not establish the jury made such a finding; so, we cannot conclude it establishes that defendant is categorically ineligible for relief under the law as amended. Thus, we conclude the trial court erred in ruling the record of conviction established that defendant is ineligible for relief as a matter of law and in denying her section 1172.6 petition for relief on that basis. Accordingly, its order must be reversed and the matter remanded for further proceedings. DISPOSITION The court’s order denying defendant’s petition for resentencing is reversed and the matter is remanded with directions for the trial court to issue an order to show cause and hold further proceedings consistent with section 1172.6, subdivision (d).

LEVY, Acting P. J. WE CONCUR:

DETJEN, J.

SNAUFFER, J.

15.