People v. Banks CA4/2

Filed 12/10/20 P. v. Banks CA4/2

See dissenting opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074390

v. (Super.Ct.No. RIF080665)

CLYDE SHIRONE BANKS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

Christine Vento, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

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 FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On February 21, 2001, a second amended information charged defendant and

appellant Clyde Shirone Banks and codefendant Jason Latrell Thomas1 with first degree

murder under Penal Code2 section 187 (count 1) and attempted robbery under sections

664 and 211. As to both counts, the information also alleged that defendant personally

and intentionally discharged a firearm and proximately caused great bodily injury or

death to another person under sections 12022.53, subdivision (d), and 1192.7, subdivision

(c)(8). As to count 1, the information further alleged that defendants committed the

murder while engaged in the attempted robbery under section 190.2, subdivision (a)(17).

“The jury found defendants guilty as charged, and found the felony murder special

circumstance allegation and all firearm enhancement allegations true. Banks was

sentenced to life without the possibility of parole, plus a consecutive term of 25 years to

life for the personal discharge enhancement, on count 1.” (People v. Banks (October 8,

2002, E029239) [nonpub. opn.]; 2002 Cal.App.Unpub.LEXIS 9374, *3.)3

1 Codefendant Thomas is not a party to this appeal.

2 All statutory references are to the Penal Code unless otherwise specified.

3Defendant and Thomas both appealed. On October 8, 2002, we affirmed the
judgment in an unpublished opinion in case No. E029239. (People v. Banks, supra, 2002
Cal.App.Unpub.LEXIS 9374, *45.)

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 Almost 17 years later, on September 6, 2019, defendant filed a petition for

resentencing under section 1170.95. On December 13, 2019, after a hearing on the

motion wherein defendant was represented by counsel, the trial court denied the petition.

On December 23, 2019, defendant filed a timely notice of appeal.

B. FACTUAL HISTORY4

“On April 9, 1998, at 10:00 p.m., Rodney Martin (Martin), then 31 years old,

drove to the Hunt Club apartments in Perris with his brother, Troy Petterway (Petterway),

then 26 years old. Martin and Petterway drove into a carport area and stepped out of the

car. Thomas then approached Petterway on the passenger’s side of the car and asked for

a cigarette.

“Petterway knew Thomas, thought there might be a fight, and kept his attention on

Thomas. Petterway then saw ‘two other guys’ approach Martin on the driver’s side of the

car. He identified one of the two other guys as Banks, but could not identify the other. [5]

Either Banks or the person standing near him said, ‘Break yourself,’ which meant, ‘This

is a robbery.’

“Martin told Banks to ‘get out of his face’ and swung at him. Banks then pulled a

gun out of his jacket and started shooting. Martin said, ‘Run,’ and Petterway ran. As

4 The facts are taken from our opinion in the prior appeal in case No. E029239.

5“Petterway also told the police that there may have been a fourth person who
approached him, with Thomas, on the passenger’s side of the car. Petterway identified
Thomas and Banks, but could not identify either of the other two persons.”

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Petterway ran, he heard Thomas yell ‘Outlaw.’ Within minutes, Martin died of multiple

gunshot wounds.

“Petterway testified that as he was running from the scene he heard several shots

fired, with a pause in between. William Owens (Owens), the maintenance supervisor at

the apartments and a former weapons instructor in the Marines, also heard two sets of

shots fired, with a pause in between. Owens said that the pause was ‘like somebody was

changing a magazine.’

“Thomas’s brother, Malik Swanigan (Swanigan), testified that he was in an

upstairs apartment when he heard shots being fired. He ran out of the apartment and

halfway down the staircase. From there, he saw Banks shooting Martin. He then saw

Thomas take the gun from Banks and shoot Martin several times. (Fn. omitted.)

“After the shooting, Swanigan and Thomas went to see Swanigan’s girlfriend,

Nina Burton, in Sun City. Burton told the police that the morning after the shooting she

overheard Thomas on the telephone bragging that he had shot Martin.

“Several days after the shooting, Swanigan and Thomas went to visit [Lisa] Rufus

in Bellflower. There, Thomas confessed to Rufus that he shot Martin, and made

additional statements that incriminated Banks.”

DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of

the case, a summary of the facts, and potential arguable issues, and has requested this

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court to undertake a review of the entire record. Pursuant to Anders, counsel identified

the following issue to assist the court in its search of the record for error: “Did the court

err in concluding that Banks failed to establish a prima facie case for relief because his

jury found true the murder/robbery special circumstance?”

We offered defendant an opportunity to file a personal supplemental brief, and he

has not done so.

We recognize that in People v. Cole (2020) 52 Cal.App.5th 1023, Division Two of

the Second Appellate District held “that Wende’s constitutional underpinnings do not

apply to appeals from the denial of postconviction relief.” (Id. at p. 1028.) We have “no

independent duty to review the record for reasonably arguable issues,” and when a

defendant fails to file a supplemental brief, “the Court of Appeal may dismiss the appeal

as abandoned.” (Id. at p. 1039, italics added.) Recently, in People v. Flores (2020) 54

Cal.App.5th 266 (Flores), our colleagues in Division Three of the Fourth Appellate

District held “that when an appointed counsel files a Wende brief in an appeal from a

summary denial of a section 1170.95 petition, a Court of Appeal is not required to

independently review the entire record, but the court can and should do so in the interests

of justice. This is a pure question of law, so our review is de novo.” (Id. at p. 269.) The

Flores court went on to reiterate that “while we agree with the primary holding in Cole—

that we are not required to conduct an independent review of the record because this is

not defendant’s first appeal as a matter of right—we have found no legal authority that

prohibits us from doing so in the interests of justice.” (Id. at p. 273.) We agree with our

colleagues in Flores.

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 “There are three well-established ‘due process’ criteria that are helpful to courts

when establishing procedures in the interests of justice: ‘They are (1) “the private

interests at stake,” (2) “the government’s interests,” and (3) “the risk that the procedures

used will lead to erroneous decisions.” ’ ” (Flores, supra, 54 Cal.App.5th at pp. 273-

274.)

As noted by the court in Flores, “[i]n an appeal from a denial of a section 1170.95

petition, the private interests at stake are the liberty interests of the person who may be in

custody and seeking release. [Citation.] The government’s interests are the appellate

court’s interests in making sure there was a correct ruling in the trial court, while

balancing fiscal and administrative concerns. [Citation.] And finally, the risk of an

erroneous ruling is present if appointed counsel failed to identify a meritorious

(reversible) issue on appeal, and the appellate court also failed to identify that issue by

failing to conduct an independent review.” (Flores, supra, 54 Cal.App.5th at p. 274.)

The court went on to state that “[w]hen we weigh the paramount liberty interests of the

petitioner, the modest fiscal and administrative burdens to the courts, and the possible

(while presumably low) risk of a petitioner’s unlawful incarceration due to an unreviewed

meritorious issue on appeal, we lean toward caution. That is, although it is not required

under law, we think an appellate court can and should independently review the record on

appeal when an indigent defendant’s appointed counsel has filed a Wende brief in a

postjudgment appeal from a summary denial of a section 1170.95 petition (regardless of

whether the petitioner has filed a supplemental brief.)” (Ibid.)

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 We agree with Flores that dismissal is discretionary, and that we can and should

independently review the record on appeal in the interests of justice. (Conservatorship of

Ben C. (2007) 40 Cal.4th 529, 544, fn. 8.)

A. LEGAL BACKGROUND

“In 2018 the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) . . ., which

abolished the natural and probable consequences 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

reckless indifference to human life.’ ” [Citations.] 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.” (People v. Murillo (2020) 54 Cal.App.5th 160, 166 (Murillo).)

“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’ [citation];

(2) He ‘was convicted of’ or pleaded guilty to ‘first degree murder or second degree murder’

[citation]; and (3) 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 [citation]. 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

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been at least a major participant in the underlying felony and have acted with reckless

indifference to human life.” (Murillo, supra, 54 Cal.App.5th at p. 166.)

Section 1170.95, subdivision (b), states that the petition must include: a declaration from

the petitioner that he or she is eligible for relief under the statute, the superior court’s case

number and year of conviction, and a statement as to whether the petitioner requests appointment

of counsel. (§ 1170.95, subd. (b)(1).) If any of the required information is missing and cannot

“readily [be] ascertained by the court, the court may deny the petition without prejudice to the

filing of another petition.” (§ 1170.95, subd. (b)(2).)

Section 1170.95, subdivision (c), sets forth the trial court’s responsibilities once a

complete petition has been filed: “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. If the petitioner has requested counsel, the court shall appoint counsel to represent the

petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition

and the petitioner may file and serve a reply within 30 days after the prosecutor response is

served. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the

court shall issue an order to show cause.” (§ 1170.95, subd. (c).)

If the court issues an order to show cause, it must hold a hearing to determine whether to

vacate the murder conviction. (§ 1170.95, subd. (d).) At that hearing, the prosecution has the

burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing.

(§ 1170.95, subd. (d)(3).) The prosecutor and petitioner “may rely on the record of conviction or

offer new or additional evidence to meet their respective burdens.” (Ibid.)

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 In short, a section 1170.95 petitioner must first make a prima facie case for relief, and if

they are able to do so, the trial court must issue an order to show cause and hold a hearing to

determine whether to vacate the murder conviction and recall the sentence. (See, e.g., People v.

Verdugo (2020) 44 Cal.App.5th 320, 328, review granted Mar. 18, 2020, S260493.) “ ‘A prima

facie showing is one that is sufficient to support the position of the party in question.’ ” (People

v. Lewis, supra, 43 Cal.App.5th at p. 1137, quoting Aguilar v. Atlantic Richfield Co. (2001) 25

Cal.4th 826, 841.)

In this case, the trial court denied defendant’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.’

[Citations.] This is a purely legal conclusion, which we review de novo.” (Murillo, supra, 54

Cal.App.5th at p. 167.)

B. THE TRIAL COURT PROPERLY DENIED DEFENDANT’S PETITION

1. THE PROPER VEHICLE TO CHALLENGE A FELONY-MURDER

SPECIAL CIRCUMSTANCE IS A HABEAS PETITION

“To be eligible for resentencing under section 1170.95, [a defendant] 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. [Citation.] 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.’ [Citation.] These are identical to the circumstances in which a felony-

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murder special circumstance applies. [Citation.] Thus, the jury’s special circumstance finding

shows as a matter of law that [defendant] could still be convicted of felony murder under the new

definition, and prevents [defendant] from making a prima facie case that he is eligible for

resentencing.” (Murillo, supra, 54 Cal.App.5th at p. 167.)

Two recent cases have found that “the proper remedy for challenging a special

circumstance finding is by a petition for habeas corpus, not a petition for resentencing under

section 1170.95.” (People v. Galvan (2020) 52 Cal.App.5th 1134, 1137, 1142 (Galvan);

Murillo, supra, 54 Cal.App.5th at p. 167.) The Murillo court stated: “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 [the defendant]

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 circumstances finding in Banks and Clark.

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.’ ” (Murillo, supra, 54 Cal.App.5th at p.

168.)

The Murillo court went on to state that “[b]y 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

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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. [Citations.] 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.

[Citation.] Yet nothing in the language of Senate Bill 1437 suggests that the Legislature

intended unequal treatment of such similarly situated defendants.’ ” (Murillo, supra, 54

Cal.App.5th at pp. 168-169.)

We agree with both Galvan and Murillo and hold that the proper procedure of

challenging a felony-murder special circumstance is a habeas petition.

2. AS A MATTER OF LAW, THE SPECIAL CIRCUMSTANCES AS

DEFINED BY BANKS AND CLARK APPLIES TO DEFENDANT

Assuming arguendo that defendant can challenge the validity of a felony-murder special

circumstance via a petition under section 1170.95, defendant’s claim fails because his record of

conviction, as a matter of law, establishes that the jury’s special circumstance finding is valid

under the standard established by Banks and Clark.

Whether there is sufficient evidence that defendant was a major participant in the

robbery who acted with reckless indifference to human life is a question we can decide

on appeal. “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.” (In re Miller (2017) 14

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Cal.App.5th 960, 979-980.) The “claim does not require resolution of disputed facts; the

facts are a given.” (Id. at p. 980.)

Section 190.2 sets forth the special circumstances under which murderers and

accomplices can be punished by death or life without possibility of parole. One such

circumstance is when a defendant is found guilty of first degree murder committed while

he was engaged in, or was an accomplice to, the commission or attempted commission of

a robbery. (§ 190.2, subd. (a)(17)(A).) However, as explained post, a death resulting

during the commission of a robbery (or any other felony enumerated in § 189) is

insufficient, on its own, to establish a felony-murder special circumstance for those

defendants who were not determined to be the actual killer. Such defendants can only be

guilty of special-circumstance felony-murder if they aid in the murder with the intent to

kill (§ 190.2, subd. (c)), or, lacking intent to kill, aid in the felony “with reckless

indifference to human life and as a major participant.” (§ 190.2, subd. (d).)

Section 190.2, subdivision (d), was enacted in 1990 to bring state law into conformity

with prevailing Eighth Amendment doctrine, as set out in the United States Supreme Court’s

decision in Tison v. Arizona (1987) 481 U.S. 137. (Banks, supra, 61 Cal.4th at p. 789.) “In

Tison, two brothers aided an escape by bringing guns into a prison and arming two murderers,

one of whom they knew had killed in the course of a previous escape attempt. After the

breakout, one of the brothers flagged down a passing car, and both fully participated in

kidnapping and robbing the vehicle’s occupants. Both then stood by and watched as those

people were killed. The brothers made no attempt to assist the victims before, during, or after

the shooting, but instead chose to assist the killers in their continuing criminal endeavors.

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[Citation.] The Supreme Court held the brothers could be sentenced to death despite the fact

they had not actually committed the killings themselves or intended to kill, stating: ‘[R]eckless

disregard for human life implicit in knowingly engaging in criminal activities known to carry a

grave risk of death represents a highly culpable mental state, a mental state that may be taken

into account in making a capital sentencing judgment when that conduct causes its natural,

though also not inevitable, lethal result. The [brothers’] own personal involvement in the crimes

was not minor, but rather, . . . “substantial.” Far from merely sitting in a car away from the

actual scene of the murders acting as the getaway driver to a robbery, each . . . was actively

involved in every element of the kidnap[p]ing-robbery and was physically present during the

entire sequence of criminal activity culminating in the murder[s] . . . and the subsequent flight.

The Tisons’ high level of participation in these crimes . . . implicates them in the resulting

deaths.’ ” (In re Ramirez (2019) 32 Cal.App.5th 384, 393-394, quoting Tison at pp. 157-158.)

“The Tison court pointed to the defendant in Enmund v. Florida (1982) 458 U.S. 782,

. . . (Enmund) as an example of a nonkiller convicted of murder under the felony-murder rule for

whom the death penalty was unconstitutionally disproportionate. Enmund was the driver of the

getaway car in an armed robbery of a dwelling whose occupants were killed by Enmund’s

accomplices when they resisted. [Citation.] In deciding the Eighth Amendment to the United

State Constitution forbids imposition of the death penalty ‘on one such as Enmund’ . . . , the high

court emphasized that the focus had to be on the culpability of Enmund himself, and not on those

who committed the robbery and shot the victims [citation]. ‘Enmund himself did not kill or

attempt to kill; and, . . . the record . . . does not warrant a finding that Enmund had any intention

of participating in or facilitating a murder. . . . [T]hus his culpability is plainly different from

that of the robbers who killed; yet the State treated them alike and attributed to Enmund the

13
culpability of those who killed the [victims]. This was impermissible under the Eighth

Amendment.’ ” (People v. Ramirez, supra, 32 Cal.App.5th at p. 394.)

In Banks, the California Supreme Court described what is often referred to as the Tison-

Enmund spectrum. “At one extreme” are people like Enmund—“the minor actor in an armed

robbery, not on the scene, who neither intended to kill nor was found to have had any culpable

mental state.” (Banks, supra, 61 Cal.4th at p. 800.) “At the other extreme [are] actual killers and

those who attempted or intended to kill.” (Ibid.) Section 190.2, subdivision (d), covers those

people who fall “into neither of these neat categories”—people like the Tison brothers, who were

major participants in the underlying felony and acted with a reckless indifference to human life.

(Banks, at p. 800.)

The California Supreme Court articulated several factors intended to aid in determining

whether a defendant falls into this middle category, such that section 190.2, subdivision (d),

would apply to them. “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?” (Banks, supra, 61 Cal.4th at p. 803, italics added.)

“No one of these considerations is necessary, nor is any one of them necessarily sufficient.”

(Ibid.)

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 The defendant in Banks, Lovie Troy Matthews, was convicted of first degree murder with

a felony-murder special circumstance based on his having acted as the getaway driver for an

armed robbery in which his codefendant Banks and others participated, and in which Banks shot

and killed one of the robbery victims while escaping. (Banks, supra, 61 Cal.4th at pp. 796-797.)

Considering Matthews’s involvement in the robbery against the factors just enumerated, the

Court “placed [him] at the Enmund pole of the Tison-Enmund spectrum.” (People v. Ramirez,

supra, 32 Cal.App.5th at p. 397.) As a result, the Court concluded “the jury’s special-

circumstance true finding cannot stand.” (Banks, at p. 811.) Not long after Banks, the Court

revisited this issue in Clark, also concluding the evidence was insufficient to support the

defendant’s robbery-murder special-circumstance findings. (Clark, supra, 63 Cal.4th at p. 611.)

The defendant in Clark planned a burglary of a computer store to occur after the store was

closed. According to the plan, his codefendant was to carry out the burglary and carry an

unloaded gun. However, his codefendant ended up carrying a gun loaded with one bullet and

fired that bullet when he unexpectedly encountered a store employee, killing her. (Id. at pp. 612-

613.) The Supreme Court concluded there was insufficient evidence Clark acted with reckless

indifference to human life because (a) Clark was not physically present when his codefendant

killed the employee and was therefore unable to intervene; (b) there was no evidence Clark knew

his codefendant was predisposed to be violent; and (c) Clark planned for the robbery to take

place after the store closed, and the gun was not supposed to be loaded. (Id. at pp. 619-622.) In

sum, the court believed there was “nothing in [Clark’s] plan that one can point to that elevated

the risk to human life beyond those risks inherent in any armed robbery.” (Id. at p. 623.)

In this case, in contrast to Banks and Miller, defendant was a willing participant in the

violent manner in which the robbery and murder took place. Defendant and his codefendant

15
approached the two victims, Martin and Petterway. One of them said “Break yourself,” which

meant, “This is a robbery.” When Petterway started to run away, he heard codefendant Thomas

yell “Outlaw” and within minutes, Martin died of multiple gunshot wounds. The evidence

showed defendant pulled a gun out of his jacket and started shooting; defendant shot the victim

numerous times. Thereafter, codefendant took the gun from defendant and shot Martin several

more times. At the hearing on the section 1170.95 petition, the People moved to dismiss the

petition “because according to the appellate opinion, there was a robbery special circumstance

that was found true. CALJIC 8.0.1 was given, and that would have required the jury to find an

intent to kill or that the defendant was a major participant acting in reckless indifference.”

Thereafter, the trial court dismissed defendant’s petition. We agree with the trial court; we are

not aware of a single case that concludes a defendant who personally committed a robbery, used

a gun, and actually shot the victim did not meet the standard in section 190.2, subdivision (d).

The defendants who have been able to get their special circumstance findings vacated are those

who were not wielding guns themselves and also were not present for the shooting (either

because they were acting as getaway drivers or because they were involved in the planning of the

crime only). Defendant’s conduct is clearly distinguishable. “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.” (Murillo, supra, 54 Cal.App.5th at p.

173.)

As the court in Murillo recognized, “[i]n People v. Smith (2020) 49 Cal.App.5th 85, 95-

96 (Smith), our colleagues in Division 5 of [the Second District] held that a defendant could

challenge a pre-Banks and Clark special circumstance finding in a petition under section

1170.95. The court also held that it was inappropriate to determine at the first stage of review

16
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. [Citation.] 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.” (Murillo, supra, 54 Cal.App.5th at p. 173.)

We agree with Murillo “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.” (Murillo,

supra, 54 Cal.App.5th at p. 173.)

Here, like the record in Murillo, “the record of conviction establishes as a matter of law

that [defendant] was a major participant who acted with reckless indifference to human life, as

those terms were clarified in Banks and Clark, and [defendant] does not claim to have any new

evidence on this issue. Therefore, even if his claim [were] cognizable under section 1170.95,

[defendant] was not eligible for relief under that statute.” (Murillo, supra, 54 Cal.App.5th at p.

173.)

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 An appellate court conducts a review of the entire record to determine whether the

record reveals any issues which, if resolved favorably to defendant, would result in

reversal or modification of the judgment. (Wende, supra, 25 Cal.3d at pp. 441-442;

People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders, supra, 386 U.S. at p. 744; see

People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error. We are satisfied that defendant’s

attorney has fully complied with the responsibilities of counsel and no arguable issue

exists. (Id. at p. 126; Wende, supra, 25 Cal.3d at pp. 441-442.)

DISPOSITION

We affirm the trial court’s order denying defendant’s petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

I concur:

McKINSTER
Acting P. J.

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[P. v. BANKS, E074390]

MENETREZ, J., Dissenting.

The appellate review procedures under People v. Wende (1979) 25 Cal.3d 436

(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), in which we read the

entire record ourselves to search for arguable grounds for reversal, apply “only to a

defendant’s first appeal as of right.” (People v. Thurman (2007) 157 Cal.App.4th 36, 45;

People v. Serrano (2012) 211 Cal.App.4th 496, 498 (Serrano); People v. Cole (2020) 52

Cal.App.5th 1023, 1032 (Cole).) Wende/Anders review is highly unusual and rooted in

the constitutional right to effective assistance of counsel, and courts have repeatedly

declined to apply it in other contexts. (Pennsylvania v. Finley (1987) 481 U.S. 551, 554-

555; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535; In re Sade C. (1996) 13

Cal.4th 952, 959; People v. Kisling (2015) 239 Cal.App.4th 288, 290; People v. Dobson

(2008) 161 Cal.App.4th 1422, 1425; People v. Taylor (2008) 160 Cal.App.4th 304, 307-

308; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570; 579.)

Because this appeal concerns a postjudgment proceeding in which there is no

constitutional right to effective assistance of counsel, appellant has no right to

Wende/Anders review. “[A]lthough we are not required to conduct such a review, we

also are not prohibited from conducting it. [Citations.] We have discretion to read the

entire record and look for arguable grounds for reversal. We have that discretion in every

appeal, both criminal and civil—we are always allowed to read the whole record,

searching for issues and requesting supplemental briefing on anything we find.” (People

v. Gallo (Nov. 19, 2020, E074674) __ Cal.App.5th __ [2020 Cal.App. Lexis 1095, *8-*9]

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(dis. opn. of Menetrez, J.).) But in the absence of a valid case-specific reason for

conducting such a review, doing so would constitute a misuse of judicial resources and an

abuse of discretion. (Id. at pp. *9-*14 (dis. opn. of Menetrez, J.).)

Appellant’s counsel filed an opening brief raising no issues, and appellant was

notified but did not file a supplemental brief. There is no case-specific reason for us to

read the whole record to look for grounds for reversal. We consequently should not

affirm but rather should dismiss the appeal as abandoned. (Serrano, 211 Cal.App.4th at

pp. 503-504; Cole, 52 Cal.App.5th at pp. 1039-1040.) I therefore respectfully dissent.

MENETREZ
J.

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