People v. Murillo

Filed 9/1/20
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B297546

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA010613)
v.

JOSE MURILLO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Frank M. Tavelman, Judge. Affirmed.
George L. Schraer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Noah P. Hill, Deputy Attorneys
General, for Plaintiff and Respondent.
 Mark Zahner (California District Attorneys Association);
Michael A. Hestrin, District Attorney (County of Riverside), Alan
D. Tate, Managing Deputy District Attorney, Jesse Male, Deputy
District Attorney; Jason Anderson, District Attorney (County of
San Bernardino), and James R. Secord, Deputy District Attorney,
for California District Attorneys Association as Amicus Curiae on
behalf of the Plaintiff and Respondent.

__________________________

Defendant and appellant Jose Murillo challenges the trial
court’s denial of his petition under Penal Code section 1170.951
for resentencing on his murder conviction. A jury convicted
Murillo in 1993 of murder on the basis of his participation in a
burglary in which a cohort shot and killed a victim. The jury
also found true a felony-murder special circumstance (§ 190.2,
subd. (a)(17)), concluding beyond a reasonable doubt either that
Murillo urged his cohort to kill the victim, or that he was a major
participant in the burglary who acted with reckless indifference
to human life. The trial court denied the petition because, on the
basis of this finding, Murillo could still be convicted of murder
and would be ineligible for resentencing under section 1170.95.2

1 Subsequent statutory references are to the Penal Code.
2 On February 3, 2020, Murillo filed a petition for a writ of
habeas corpus. On February 11, 2020, we ordered the petition be
considered concurrently with this appeal and invited the parties
to file informal briefs. The People filed an informal response
on May 5, 2020 and Murillo filed a reply brief on May 11, 2020.
(In re Jose Murillo, case No. B303960.) Murillo’s petition for writ
of habeas corpus is denied by separate order filed concurrently
herewith.

2
 Murillo contends that the special circumstance finding
is no longer valid in light of our Supreme Court’s decisions in
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark), which clarified the meaning
of “major participant” and “reckless indifference to human
life.” We affirm the trial court’s order on two grounds: First,
the proper procedure for collaterally challenging a special
circumstance finding is a petition for habeas corpus, not a
petition under section 1170.95. (See People v. Galvan (2020)
52 Cal.App.5th 1134 (Galvan).) Second, the record of conviction
shows as a matter of law that the special circumstance finding is
valid even under Banks and Clark.

FACTS AND PROCEEDINGS BELOW
In a prior opinion in Murillo’s direct appeal (People v.
Murillo (July 28, 1994, B078813) [nonpub. opn.] (Murillo)),
this court described the facts of this case, beginning with the
prosecution’s case:
“During the evening of April 12, 1992, 15-year-old
Mirna G., 14-year-old Gabriel N. and defendant gathered at a
park with a number of others. At some point, it was decided that
a group of these individuals would do a ‘beer run,’ meaning to
take beer from a store without paying for it. Mirna, Gabriel,
defendant and someone named Peeker made the run. As they
drove, they decided Gabriel and defendant would enter the store
and get the beer; Mirna would hold the door for them and Peeker
would remain in the automobile, ready to drive. Defendant
showed the others a handgun.
“After trying several stores, the group settled on one at
approximately 11:00 p.m. After the group parked in the Mobil
gasoline station, defendant, Gabriel and Mirna walked to the

3
store. As previously arranged, Mirna stayed at the door, while
defendant and Gabriel entered the store. Gabriel then walked
back and told Mirna to get the beer while he held the door.
Defendant and Mirna took several cases of beer and walked out
of the store with it; Gabriel followed. As they left the store, they
noticed Peeker was putting gasoline into the automobile; they
began to run.
“Rocco Pugliese (Pugliese), Eric Hice (Hice) and Chris
Brown (Brown), who were standing in the store’s parking lot, saw
defendant and Mirna running away with something in bags,
followed by Gabriel, then saw the store clerk make a gesture that
led them to believe there had been a crime. Believing the store
had been robbed, Pugliese and Brown pursued the trio who had
emerged from the store.
“Defendant, Gabriel and Mirna ran across the street; as
they ran, defendant and Mirna dropped the beer. Brown caught
up with Mirna and pulled her hair, causing her to fall. She got
up and ran in a direction different from that taken by defendant
and Gabriel. Pugliese pursued her, while Brown pursued Gabriel
and defendant, going over a wall after them. As Mirna neared a
yard down the street, she heard defendant tell Gabriel, ‘Shoot
him.’ This was followed by a gunshot. Pugliese found Brown
lying on the grass in a yard beyond the brick wall Brown had
scaled; he went for help. Brown died from a single gunshot
wound which perforated the aorta, causing him to bleed to death.
“At this point, Mirna, defendant and Gabriel met and
attempted to leave the neighborhood. Approximately 30 minutes
later, Mirna saw defendant trying to hide a gun in the bushes
in front of a house near some railroad tracks. When the trio

4
reached the tracks, Gabriel said he shot someone once to scare
him; he said he should have shot the man in the head instead.
“Defendant was arrested on Apri1 14, 1992. As he was
escorted to the police vehicle, he said, ‘The white boy shouldn’t
have tried to be a hero.’ He also said he had ‘pulled lots of jobs,’
and ‘when I pull them, I pull them clean;’ he was not going to
jail, for he ‘was going to take care of the guy that said he shot
the white guy.’ During a subsequent police interview, defendant
admitted telling Gabriel, ‘Shoot him.’ He also said Gabriel was
very nervous; he did not want to give him the gun because
Gabriel might shoot someone with it. After he initially told
Gabriel to shoot in the air if they were pursued, Gabriel said he
would just shoot the pursuer.” (Murillo, supra, B078813.)
The opinion went on to summarize the defense evidence:
“Defendant admitted his complicity in the burglary. He
acknowledged he belonged to the South Side Reseda street gang.
According to defendant, when the group planned the burglary,
he was unarmed. Someone gave him a handgun as protection
should they encounter rival gang members. Defendant had shot
at rival gang members on at least one prior occasion, but he did
not intend to use the gun during the burglary.
“As the group drove around looking for the best store to
burgle, Gabriel asked defendant what to do if someone pursued
them. Defendant said he would shoot in the air. As they left
one store they had investigated, Gabriel asked for the gun.
Defendant refused to give it to him, explaining he did not want
his fellow gang members ‘to say we gave you the gun, why did
you lose it.’ Gabriel repeated his request for the gun often
enough that defendant grew tired of the debate and gave him the
gun. He said nothing further about how the gun should be used.

5
 “As the group fled after stealing the beer, Brown pursued
them. When Brown drew near after they had scaled a wall and
entered a yard, defendant told Gabriel to shoot. He thought
Gabriel would shoot in the air. After Gabriel fired, defendant did
not believe anyone had been shot. Gabriel later said he shot only
to scare his pursuer.
“Defendant learned someone had been shot during the
pursuit after overhearing a conversation on the following
evening. When defendant was arrested, he was angry at being
accused of the shooting and at Gabriel for ‘snitching.’ According
to defendant, he never said anything at the time of his arrest
about Brown trying to be a hero.” (Murillo, supra, B078813.)
A jury convicted Murillo of first degree murder (§ 187)
and found true a felony murder special circumstance. (§ 190.2,
subd. (a)(17).) The jury also convicted him of one count of
burglary (§ 459) and found true an allegation that a principal
was armed in the commission of both the murder and the
burglary. (§ 12022, subd. (a)(1).) The trial court sentenced
Murillo on the murder count to life in prison without the
possibility of parole. The court suspended the sentence for the
burglary pursuant to section 654.
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished
the natural and probable consequences doctrine in cases of
murder, and limited the application of the felony murder
doctrine. Under section 189, subdivision (e), as amended by
Senate Bill No. 1437, a defendant is guilty of felony murder only
if he: actually killed the victim; directly aided and abetted or
solicited the killing, or otherwise acted with the intent to kill; or
“was a major participant in the underlying felony and acted with

6
reckless indifference to human life.” (§ 189, subd. (e)(3); People v.
Lamoureux (2019) 42 Cal.App.5th 241, 247–248.) The legislation
also enacted section 1170.95, which established a procedure for
vacating murder convictions for defendants who would no longer
be guilty of murder because of the new law and resentencing
those who were so convicted. (Stats. 2018, ch. 1015, § 4,
pp. 6675–6677.)
Murillo filed a petition for resentencing on March 29, 2019.
The trial court summarily denied the petition on the ground that
the jury’s special circumstance finding rendered him ineligible
for resentencing. (See §§ 189, subd. (e)(3), 1170.95, subd. (a)(3).)
The court also denied the petition on the ground that Senate
Bill No. 1437 violates several provisions of the California
Constitution.3

DISCUSSION
A. Background on Section 1170.95
Section 1170.95 allows a defendant serving a sentence for
felony murder who would not be guilty of murder because of the
new law to petition for resentencing. The statute requires a
defendant to submit a petition affirming that he meets three
criteria of eligibility: (1) He was charged with murder in a
manner “that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine” (§ 1170.95, subd. (a)(1)); (2) He “was
convicted of ” or pleaded guilty to “first degree or second degree
murder” (§ 1170.95, subd. (a)(2)); and (3) He “could not be

3 We agree with Murillo and the Attorney General that the
trial court erred by finding Senate Bill No. 1437 unconstitutional.
(See People v. Lamoureux, supra, 42 Cal.App.5th at pp. 250–266.)

7
convicted of first or second degree murder because of changes
to Section[s] 188 or 189 made effective” as a part of Senate Bill
No. 1437 (§ 1170.95, subd. (a)(3)). As described above, those
changes eliminated the natural and probable consequences
doctrine as a basis for murder liability, and added a requirement
for felony murder that a defendant must have been at least a
major participant in the underlying felony and have acted with
reckless indifference to human life.
Upon receipt of a petition, the trial court reviews it to
determine whether the petitioner has made a prima facie case
for relief. (§ 1170.95, subd. (c).) If the petitioner meets this
requirement, the court issues an order to show cause and holds a
hearing to determine whether to vacate the murder conviction.
(§ 1170.95, subd. (d)(1).) At this final stage of the proceeding, the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).)
In this case, the trial court denied Murillo’s petition at
the first stage of prima facie review under section 1170.95,
subdivision (c). A denial at that stage is appropriate only if
the record of conviction demonstrates that “the petitioner is
ineligible for relief as a matter of law.” (People v. Verdugo (2020)
44 Cal.App.5th 320, 329 (Verdugo), review granted Mar. 18, 2020,
S260493; accord, People v. Lewis (2020) 43 Cal.App.5th 1128,
1140, fn. 10, review granted Mar. 18, 2020, S260598 (Lewis).)
This is a purely legal conclusion, which we review de novo. (See
Verdugo, supra, at p. 328, fn. 8.)

8
 B. The Proper Procedure for Challenging a
Felony-murder Special Circumstance is a
Habeas Petition
The primary obstacle preventing Murillo from establishing
his eligibility for resentencing is the jury’s finding of a felony-
murder special circumstance. To be eligible for resentencing
under section 1170.95, Murillo must show that he “could not
be convicted of first or second degree murder because of changes
to Section[s] 188 or 189 made effective” as a part of Senate Bill
No. 1437. (§ 1170.95, subd. (a)(3).) Under the newly amended
version of section 189, a defendant can be convicted of felony
murder only if he was the actual killer; acted with the intent
to kill in aiding, abetting, counseling, commanding, inducing,
soliciting, requesting, or assisting in first degree murder; or
“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.” (§ 189, subd. (e)(3).) These are identical to the
circumstances in which a felony-murder special circumstance
applies. (See § 190.2, subds. (b)–(d).) Thus, the jury’s special
circumstance finding shows as a matter of law that Murillo could
still be convicted of felony murder under the new definition, and
prevents Murillo from making a prima facie case that he is
eligible for resentencing.
Murillo attempts to avoid this conclusion by attacking the
felony-murder special circumstance finding. He notes that after
his conviction of felony murder, the Supreme Court decided
Banks and Clark, which decisions represent a significant shift
in the interpretation of the concepts of major participation and

9
reckless indifference to human life.4 Because no court
has examined whether Murillo was a major participant who
acted with reckless indifference to human life according to the
standards enunciated in Banks and Clark, Murillo argues that
the prior special circumstance finding does not show as a matter
of law that he is ineligible for resentencing under section 1170.95.
The Attorney General argues, however, that in order to
challenge the validity of a felony-murder special circumstance
by collateral attack, a defendant must file a petition for a
writ of habeas corpus.5 A defendant may not seek relief via
section 1170.95. We agreed with this position in our recent
opinion in Galvan, supra, 52 Cal.App.5th at page 1142, and we
do so again here.
As we explained in Galvan, a defendant subject to a
pre-Banks and Clark special circumstance is ineligible for
resentencing under section 1170.95 because of the basis of
his claim. Although Murillo asserts that he could not now
be convicted of murder, “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.

4 We describe the Banks and Clark decisions in more
detail later in this opinion. (See Discussion part C, post.)
5 Because Banks and Clark represent a significant
clarification in a legal standard, a defendant whose special
circumstance determination predated Banks and Clark may
challenge the validity of the finding by means of a habeas
corpus petition, even though sufficiency of the evidence claims
are generally not cognizable on habeas corpus review. (See
In re Scoggins (2020) 9 Cal.5th 667, 673–674.)

10
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 in an underlying felony and acted with
reckless indifference to human life. If [the defendant] is entitled
to relief based on Banks and Clark, the avenue for such relief
is not section 1170.95, but a petition for writ of habeas corpus.”
(Galvan, supra, 52 Cal.App.5th at p. 1142.)
By requiring a defendant to seek relief via habeas corpus,
we avoid creating a disparity in which similarly situated
defendants’ cases are evaluated under different standards based
solely on the date of their convictions. “Defendants convicted
after the Supreme Court issued its decisions in Banks and Clark
would be required to challenge the sufficiency of the evidence
of the special circumstance finding on direct appeal, where
the People would need only to show that substantial evidence
supported that finding. If the judgment is affirmed, generally it
would be the law of the case in any proceedings thereafter as to
those findings. (In re Saldana (1997) 57 Cal.App.4th 620,
625 . . . ; see also In re Harris (1993) 5 Cal.4th 813, 829 . . . [‘in
the absence of strong justification, any issue that was actually
raised and rejected on appeal cannot be renewed in a petition for
a writ of habeas corpus’].) But where, as here, a defendant was
convicted before Banks and Clark, if the defendant could bring
a collateral challenge under section 1170.95, the prosecution
would be required to prove the special circumstance beyond a
reasonable doubt. (See People v. Gomez (2020) 52 Cal.App.5th
1, 17.) Yet nothing in the language of Senate Bill No. 1437
suggests that the Legislature intended unequal treatment of such

11
similarly situated defendants.” (Galvan, supra,
52 Cal.App.5th at p. 1143.)

C. As a Matter of Law, the Special Circumstance
as Defined by Banks and Clark Applies to
Murillo
We also affirm the trial court’s denial of Murillo’s petition
on a second, independent ground. Even if a defendant could
challenge the validity of a felony-murder special circumstance by
means of a petition under section 1170.95, Murillo’s claim would
still fail because the record of conviction establishes as a matter
of law that the jury’s special circumstance finding is valid under
the standards established by Banks and Clark.

1. The background of Banks and Clark
The definition of the felony-murder special circumstance
under section 190.2, subdivision (d) is the product of
the United States Supreme Court’s jurisprudence on the
constitutionality of the death penalty in cases of felony murder.
In Tison v. Arizona (1987) 481 U.S. 137 (Tison), the Court
considered whether a defendant who did not personally kill
the victim could be sentenced to death for felony murder.
The Court held that if a defendant was a major participant in
the underlying felony and acted with reckless indifference to
human life, then the Eighth Amendment does not prohibit the
imposition of the death penalty as disproportionate. (Tison,
supra, at p. 158.) In 1990, the electorate enacted section 190.2
by initiative, adopting the Tison standard for the felony-murder
special circumstance in California. (See In re Scoggins, supra,
9 Cal.5th at pp. 674–675.)

12
 Because section 190.2 incorporates the standard
established in Tison, California courts have looked to Tison
for guidance in defining the concepts of major participation and
reckless indifference to human life. (See In re Scoggins, supra,
9 Cal.5th at p. 675; Banks, supra, 61 Cal.4th at p. 798.) In
particular, the California Supreme Court has viewed Tison and
a prior case, Enmund v. Florida (1982) 458 U.S. 782 (Enmund),
as “represent[ing] points on a continuum.” (Banks, supra,
61 Cal.4th at p. 802.) The defendants in Tison were sufficiently
culpable to justify the application of the death penalty, but the
defendant in Enmund was not. “Somewhere between them, at
conduct less egregious than the Tisons’ but more culpable
than . . . Enmund’s, lies the constitutional minimum for death
eligibility.”6 (Ibid.)
In Enmund, the defendant and two confederates planned
to rob an elderly couple at their home. When the couple resisted,
one or both of Enmund’s cohorts shot and killed the couple.
Enmund, who was waiting in a car nearby, drove his cohorts
away and helped them dispose of the murder weapons.
(Enmund, supra, 458 U.S. at p. 784.) The Court held that
the imposition of the death penalty was unconstitutionally
disproportional as a punishment to Enmund, who had not
intended for a killing to take place and was not at the scene at
the time of the murders. (Id. at p. 798.)
By contrast, the Court did not reverse the imposition of
the death penalty in Tison. The defendants in that case, three

6 The analysis is the same in cases like this one in which
the death penalty is not at stake. Regardless of the punishment,
the question is whether the defendant’s conduct meets the
relevant standard. (See Banks, supra, 61 Cal.4th at p. 804.)

13
brothers, “assembled a large arsenal of weapons” to break their
father and another inmate, both convicted murderers, out of
prison. (Tison, supra, 481 U.S. at p. 139.) “The brothers armed
the two prisoners, locked up the prison guards, and helped the
prisoners escape. (Ibid.) A few days later, the group got a flat
tire and flagged down a passing car for help. (Id. at pp. 139–140.)
They kidnapped the family that was in the car and robbed them.
(Id. at p. 140.) The two brothers then guarded the family while
their father considered what to do next. (Ibid.) Eventually,
the father shot all of the family members, and the group of
perpetrators left the victims to die without rendering aid. (Id. at
p. 141.)” (In re Scoggins, supra, 9 Cal.5th at p. 675.)
To assist in distinguishing points along the continuum
between Enmund and Tison, the Court in Banks set out a series
of considerations relevant to determining whether a particular
defendant was a major participant in the underlying felony.
These factors are as follows: “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?
What did the defendant do after lethal force was used? No one
of these considerations is necessary, nor is any one of them
necessarily sufficient.” (Banks, supra, 61 Cal.4th at p. 803,
fn. omitted.)

14
 The defendant in Banks was a getaway driver in an armed
robbery of a marijuana dispensary. (Banks, supra, 61 Cal.4th
at pp. 804–805.) The Court held that there was insufficient
evidence that he was a major participant in the robbery, noting
that he was not present at the scene when a cohort shot and
killed a guard at the dispensary, and might not have been able
even to see or hear the shooting. (Id. at p. 805.) In addition,
there was no evidence that he procured the weapons or that his
confederates had a history of committing murder or other violent
crimes. (Ibid.)
In Clark, the Court re-examined Tison, this time
considering in particular the second requirement for the special
circumstance, reckless indifference to human life. Once again,
the Court established a list of factors useful to determining
whether a defendant met the standard for liability. Because the
issue of reckless indifference to human life overlaps significantly
with major participation in the underlying felony, the relevant
factors are similar to those stated in Banks. (See Clark, supra,
63 Cal.4th at pp. 614–615.) The factors identified in Clark
are: (1) The defendant’s knowledge of weapons, the number of
weapons used, and the defendant’s own use of weapons; (2) the
defendant’s physical presence at the crime and opportunities to
restrain the crime and/or aid the victim; (3) the duration of the
felony; (4) the defendant’s knowledge that his cohort was likely to
kill; and (5) whether the defendant made efforts to minimize the
risk of violence during the felony. (Id. at pp. 618–622.) Just as
in Banks, the Court in Clark clarified that these considerations
are not exhaustive, sufficient, nor necessary to establishing
whether the defendant’s conduct met the standard for the special
circumstance. (Id. at p. 618.)

15
 The Court in Clark applied these factors and concluded
that there was insufficient evidence to show that the defendant
acted with reckless indifference to human life. (Clark, supra,
63 Cal.4th at p. 623.) The defendant was the principal planner
of a robbery of a CompUSA store. The plan was to wait until the
store was closed, and then to handcuff the staff in the store’s
bathroom and load store merchandise into a van. (Id. at p. 620.)
The mother of a store employee came into the store looking for
her son, surprising one of the defendant’s confederates, who shot
and killed her. (Id. at p. 539.) Several factors contributed to the
Court’s conclusion that the defendant did not act with reckless
indifference to human life. Most notably, the defendant was
not present at the time of the shooting, and he had planned the
robbery in a way that would minimize the risk of violence. He
scheduled the robbery after the store closed, when fewer people
were likely to be present, and expected the group to use only
one gun, which was loaded with only a single bullet. (Id. at
pp. 621–622.)

2. Application to this case
Although many of the Banks and Clark factors are
relevant, a single fact is overwhelmingly important in this
case, and almost alone establishes that Murillo was a major
participant who acted with reckless indifference to human life:
Murillo instructed Gabriel to fire the gun. Even if we assume
that Murillo was telling the truth when he claimed that he did
not mean for Gabriel to shoot at Brown, Murillo’s actions led
directly to Brown’s death. This is a key factor making him a
major participant under Banks. In addition, by instructing
Gabriel to shoot, Murillo maximized the risk of violence in the
crime rather than minimizing it: rather than attempting to

16
restrain Gabriel, he turned him loose. These are both crucial
factors in establishing that Murillo acted with reckless
indifference to human life.
Other factors also support the conclusion that Murillo
was a major participant in the burglary and that he acted with
reckless indifference to human life. Murillo knew that Gabriel
was young and inexperienced with firearms, and he told police
that Gabriel seemed nervous. Yet, in spite of these concerns,
Murillo allowed Gabriel to carry the gun during the burglary.
Murillo could have minimized the inherent risk in the burglary
simply by ordering Gabriel to leave the gun in the car. Instead,
Murillo significantly increased the danger by giving Gabriel the
gun to carry into the store.
The only mitigating factor is that the original plan did not
require the perpetrators to use a gun or shoot anyone. But this
is vastly less important than the other factors described above.
In Banks and Clark, and in other cases in which a court
has overturned a special circumstance finding, the defendant
either was not present at the scene of the killing, or at least was
not capable of preventing his cohort from acting. (See Banks,
supra, 61 Cal.4th at p. 805; Clark, supra, 63 Cal.4th at pp.
619-620; accord, In re Taylor (2019) 34 Cal.App.5th 543, 559;
In re Ramirez (2019) 32 Cal.App.5th 384, 404; In re Miller (2017)
14 Cal.App.5th 960, 975.) We are not aware of any case where
a court overturned a special circumstance finding in which the
defendant was present and bore such a strong responsibility for
the victim’s death.
In People v. Smith (2020) 49 Cal.App.5th 85, 95–96 (Smith),
our colleagues in Division 5 of this district held that a defendant
could challenge a pre-Banks and Clark special circumstance

17
finding in a petition under section 1170.95. The court also held
that it was inappropriate to determine at the first stage of review
under section 1170.95 whether the defendant met the standard
for a special circumstance under Banks and Clark because at
the final eligibility hearing, a petitioner has the opportunity to
introduce new or additional evidence regarding his eligibility
for resentencing. (See § 1170.95, subd. (d)(3).) The court in
Smith held that, because a trial court cannot know what evidence
a petitioner may submit, it cannot at the first stage of review
determine that a petitioner was a major participant who
acted with reckless indifference to human life. (Smith, supra,
49 Cal.App.5th at p. 95.)
We have already explained that a petition under
section 1170.95 cannot be used to challenge a felony-murder
special circumstance finding. Even if we assume that such
a challenge can be asserted in a section 1170.95 petition, we
disagree with Smith regarding the standard for evaluating the
evidence to determine whether a defendant has made a prima
facie showing of eligibility under that section. If as a matter
of law the record of conviction shows, as it does here and did in
Smith, that the defendant was a major participant who acted
with reckless indifference to human life, and the defendant
does not claim he has new evidence to present, he has not
made a prima facie case. This view is consistent with existing
case law construing section 1170.95, including Lewis, supra,
43 Cal.App.5th 1128, review granted March 18, 2020, S260598
and Verdugo, supra, 44 Cal.App.5th 320, review granted
March 18, 2020, S260493.
Here, the record of conviction establishes as a matter of law
that Murillo was a major participant who acted with reckless

18
indifference to human life, as those terms were clarified in Banks
and Clark, and Murillo does not claim to have any new evidence
on this issue. Therefore, even if his claim was cognizable under
section 1170.95, he was not eligible for relief under that statute.

DISPOSITION
The trial court’s order is affirmed.
CERTIFIED FOR PUBLICATION.

ROTHSCHILD, P. J.
We concur:

CHANEY, J.

SINANIAN, J.*

*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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