People v. Smith CA2/3

Filed 4/29/21 P. v. Smith CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B296085

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA051229)
v.

JIMMY RAY SMITH,

Defendant and Appellant.
____________________________________
B305740
In re JIMMY RAY SMITH,

on Habeas Corpus.

APPEAL from an order of the Superior Court of Los
Angeles County, Tammy Chung Ryu, Judge. Reversed and
remanded with directions.
PETITION for writ of habeas corpus, Superior Court of Los
Angeles County, Bob S. Bowers, Jr., Judge. Granted.
 Mark S. Givens, under appointment by the Court of Appeal,
for Defendant and Appellant/Petitioner.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Eric J. Kohn, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
In December 1994, petitioner and appellant Jimmy Ray
Smith participated in a robbery-murder during which one of his
accomplices shot and killed the victim, Joaquin Arce. In 2000, a
jury found Smith guilty of first degree murder, and also found
true the special circumstance allegation that the murder was
committed during commission of a robbery. The trial court
sentenced Smith to two terms of life in prison without the
possibility of parole (LWOP). An LWOP sentence is
constitutionally impermissible for a non-killer accomplice unless
he was a direct aider and abettor who acted with the intent to
kill, or acted as a major participant in the underlying offense
with reckless indifference to human life.
Years after Smith’s conviction, our California Supreme
Court clarified the meaning of “major participant” and “reckless
indifference to human life.” (People v. Banks (2015) 61 Cal.4th
788 (Banks); People v. Clark (2016) 63 Cal.4th 522 (Clark).) Still
later, the Legislature enacted Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437), which, among other things, limited
accomplice liability under the felony-murder rule. Senate Bill
1437 also created a procedure by which persons convicted of
murder under a now-invalid application of the felony-murder rule

2
could petition for vacation of their murder convictions. (Pen.
Code, § 1170.95.)1
In 2019, Smith petitioned in the trial court for vacation of
his murder conviction pursuant to Senate Bill 1437. The trial
court denied his petition, and Smith appeals. Smith also filed,
with the California Supreme Court, a petition for writ of habeas
corpus, in which he contended that the jury’s special
circumstance finding must be reversed because the evidence was
insufficient to prove he was a major participant who acted with
reckless indifference to human life as those terms have been
clarified by Banks and Clark. In April 2020, the Supreme Court
issued an order to show cause (OSC), returnable in this court,
requiring the Secretary of the Department of Corrections and
Rehabilitation to show cause why Smith is not entitled to relief
based on his claim that the evidence was insufficient to support
the robbery-murder special circumstance under Banks and Clark.
We ordered that Smith’s habeas petition and his appeal be
considered together.
We conclude that, in light of Banks and Clark, the trial
evidence was insufficient to prove Smith’s conduct supported the
robbery-murder special circumstance. Consequently, his section
1170.95 petition must also be granted.

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

3
 FACTUAL AND PROCEDURAL BACKGROUND2
1. The crimes
On December 18, 1994, at approximately 8:00 p.m.,
Joaquin Arce, his wife Maria Porcayo, and their two-month-old
baby were sitting in Arce’s pickup truck, eating their dinner, at a
Burger King restaurant parking lot in Los Angeles. The baby
was seated between Arce and Porcayo, in a car seat. Arce’s truck
was outfitted with gold-plated tire rims.
Smith, codefendant Cyril Sibley, Cyril’s twin brother Tyril
Sibley,3 and Lavell Hayes, who were all members of the Athens
Park Bloods criminal street gang, went to the Burger King and
banged on the door. However, the restaurant had just closed so
the employees could attend a holiday party. Hayes left the scene
at that point.
The testimony of three eyewitnesses or their statements to
police, taken together, showed the following. Smith and the
Sibley twins approached Arce’s truck, with the Sibleys going to
the driver’s side and Smith going to the passenger side. Smith
pounded on the passenger side of the truck; one or both of the
Sibley twins pounded on the driver’s side. Arce rolled his window
partially down and asked what the men wanted. Both Sibley
brothers pushed their arms through the driver’s side window,
struck Arce, and tried to open the door. Arce tried to drive away,
but the truck’s engine stalled after he went a short distance.

2
At Smith’s request, we have taken judicial notice of the
record in his direct appeal, including our unpublished opinion.
(Evid. Code, §§ 451–453.)
3
For ease of reference, we hereinafter refer to Tyril Sibley by
his first name, and Cyril Sibley by his last name.

4
Sibley tripped and fell as Arce began backing out, but he got up,
returned to the truck, and resumed striking Arce. Tyril pushed a
gun into the truck’s cab and shot Arce at point blank range. Arce
gasped, “They got me,” and “I can’t make it.” The Sibley twins
pulled Arce from the truck and kicked him as he lay on the
ground. Smith moved to the driver’s side of the truck with the
other two assailants, and all three stood over Arce and stared at
him as he lay on the ground.
Meanwhile, Porcayo grabbed the baby, exited the vehicle,
and screamed at the assailants to take the truck. The trio did so,
with Smith driving. As they were driving off, Arce stood up,
raised his hands in the air, and walked toward Porcayo.
Assuming Arce was okay, Porcayo ran to the Burger King’s
outside payphones to call for help. However, Arce then fell to the
ground, and never got up again. The gunshot was a contact
wound that entered Arce’s left upper arm and travelled into his
chest. He died of his injuries.
Approximately a half hour after the shooting and robbery, a
witness saw a group of men standing near the stolen pickup
truck in an apartment complex parking lot located approximately
a mile from the Burger King. The Sibleys and Hayes were in the
group. Police thereafter found Arce’s truck in the lot, with the
gold tire rims removed and in the truck bed. On the front seat
was a baby blanket that had been damaged by a bullet. A
fingerprint found in the car was identified as Smith’s. A shoe
print in a planter near the truck matched a pair of shoes
belonging to Hayes. The bullet, the gun, and the baby’s car seat
were never recovered. An eyewitness told a detective that Sibley
appeared to be under the influence of drugs or alcohol. Urine

5
samples taken from the twins the night of the shooting tested
positive for the presence of PCP.
Prior to trial, Tyril was killed in an unrelated shooting.
2. Convictions, appeal, and habeas petitions
A jury found Smith and Sibley guilty of the first degree
murder of Arce, with true findings on the allegation that a
principal was armed and the special circumstance allegation that
the murder was committed while defendants were engaged in the
commission of a robbery. (§§ 187, subd. (a), 12022, subd. (a)(1),
190.2, subd. (a)(17).) It further found both defendants guilty of
the carjackings of Arce and Porcayo (§ 215, subd. (a)) and the
second degree robbery of Arce (§ 211), with principal-armed
enhancements. (§12022, subd. (a)(1).) The jury additionally
found Sibley guilty of the second degree robbery of Porcayo. The
jury was instructed on both direct aiding and abetting principles,
and felony murder.
In a bifurcated proceeding, the trial court found Smith had
suffered a prior “strike” conviction for assault with a firearm. It
sentenced him to two consecutive LWOP terms, plus six years.
This court affirmed Smith’s convictions in 2002. (People v.
Smith, et al. (Sept. 30, 2002, B144995) [nonpub. opn.].) This
court concluded that the trial court committed instructional error
by failing to instruct that if Smith and Sibley were not the actual
shooters, the jury could find the section 190.2 special
circumstance true only if it concluded that they intended Arce be
killed, or if they acted as major participants in the robbery, with
reckless indifference to human life. However, we found the error
harmless beyond a reasonable doubt, because there was
overwhelming evidence to prove these elements. (People v.
Smith, et al., supra, B144995.) We also concluded that the trial

6
court had erred by doubling Smith’s LWOP term pursuant to the
Three Strikes law, and ordered that one of the terms be stricken.
The California Supreme Court denied review in December 2002.
In 2018, Smith filed a petition for writ of habeas corpus in
the trial court, contending that there was insufficient evidence to
support the special circumstance finding because the evidence did
not prove he was a major participant in the robbery who acted
with reckless indifference to human life. The trial court denied
the petition, relying on the conclusion in this court’s 2002 opinion
that the evidence was overwhelming.
Smith next filed a habeas petition in this court, making the
same argument. We summarily denied it in November 2018.
Smith then sought relief on the same grounds in the
California Supreme Court. On April 29, 2020, the Supreme
Court issued an OSC, returnable in this court, requiring the
Secretary of the Department of Corrections and Rehabilitation to
show cause why Smith is not entitled to relief based on his claim
that the evidence was insufficient to support the robbery-murder
special circumstance under Banks and Clark.
3. Smith’s section 1170.95 petition
On January 2, 2019, Smith filed a petition for resentencing
pursuant to section 1170.95. Using a preprinted form, he
checked boxes stating that a charging document had been filed
against him allowing the prosecution to proceed under a felony-
murder theory or the natural and probable consequences
doctrine; he was not the actual killer; he did not aid and abet the
killing with the intent to kill; he was not a major participant in
the felony or did not act with reckless indifference to human life;
and he could not now be convicted of first degree felony murder in

7
light of changes to the law wrought by Senate Bill 1437. He also
checked a box requesting the appointment of counsel.
On February 4, 2019, the trial court denied the petition.
Smith was not present and was not represented by counsel. The
court reasoned that, under section 189, subdivision (e), a
participant in a murder is liable even if he was not the actual
killer, but was a major participant in the underlying felony and
acted with reckless indifference to human life. “In this matter,
the Court of Appeal specifically found that the evidence in the
case overwhelmingly suggested that the petitioner acted as a
major participant and with reckless indifference to human life in
the underlying felonies of robbery and carjacking. Therefore,
petitioner is ineligible for resentencing under Penal Code section
1170.95.”
Smith filed a timely notice of appeal.
DISCUSSION
1. The habeas petition
Because resolution of Smith’s writ petition is dispositive of
his direct appeal, we address it first.4

4
The People have not filed a return in response to the
habeas petition; instead they address the question of whether the
evidence showed Smith was a major participant who acted with
reckless indifference to human life in their brief in Smith’s direct
appeal. Smith argues that in light of the People’s failure to file a
Return, they must be deemed to have admitted all the allegations
of his petition, which must therefore be granted. Because we
grant the habeas petition on the merits, we do not address
Smith’s contentions on this point.

8
 a. The special circumstance statute, the Enmund-
Tison continuum, and Banks and Clark
Section 190.2 “identifies the circumstances under which
murderers and accomplices can be punished by death or life
imprisonment without parole. Participating in a murder during
a robbery is one of these circumstances. (§ 190.2,
subd. (a)(17)(A).) For defendants who did not kill and lacked the
intent to kill, section 190.2, subdivision (d) permits such
punishment only if they acted ‘with reckless indifference to
human life and as a major participant’ [in] a qualifying felony
like robbery.” (People v. Douglas (2020) 56 Cal.App.5th 1, 7; In re
Scoggins (2020) 9 Cal.5th 667, 674 (Scoggins).) The statute thus
imposes both an actus reus requirement (major participation)
and a mens rea requirement (reckless indifference to human life).
(Scoggins, at p. 674.) Section 190.2, subdivision (d) codifies the
holdings of Enmund v. Florida (1982) 458 U.S. 782 (Enmund)
and Tison v. Arizona (1987) 481 U.S. 137 (Tison), which brought
California law “into conformity with prevailing Eighth
Amendment doctrine.” (In re Ramirez (2019) 32 Cal.App.5th 384,
393; Clark, supra, 63 Cal.4th at p. 609; People v. Estrada (1995)
11 Cal.4th 568, 575; In re McDowell (2020) 55 Cal.App.5th 999,
1004–1005.)5
Enmund held that the death penalty could not
constitutionally be imposed on an armed robbery getaway driver

5
“Although these standards were developed in death penalty
cases, they apply equally to cases involving life imprisonment
without the possibility of parole under section 190.2, subdivision
(d).” (In re McDowell, supra, 55 Cal.App.5th at pp. 1004–1005;
Banks, supra, 61 Cal.4th at p. 804.)

9
who was a minor participant in the crime, was not present when
the murder was committed, and had no intent to kill or any
culpable mental state. (Enmund, supra, 458 U.S. at pp. 798, 801;
Scoggins, supra, 9 Cal.5th at p. 675.)
Tison, in contrast, did not preclude imposition of the death
penalty for two defendants, brothers who had helped their father
and his cellmate—both convicted murderers—escape from prison.
The brothers locked up the prison guards and armed the two
prisoners during the escape. (Tison, supra, 481 U.S. at p. 139.) A
few days later, the group got a flat tire. One of the brothers
flagged down a passing car for help. The group then kidnapped
at gunpoint the family of four that was in the car, robbed them,
and drove them into the desert. The Tisons’ father and his
cellmate debated whether to kill the family. The sons stood by
while the father and cellmate shot the victims repeatedly. The
perpetrators left the family—which included a toddler and a
teenager—to die in the desert, and drove off in the family’s car.
(Id. at pp. 139–141.) Tison held the Eighth Amendment does not
prohibit imposition of the death penalty on a nonkiller who
lacked the intent to kill, but whose “participation [in the crime] is
major and whose mental state is one of reckless indifference to
the value of human life.” (Id. at pp. 152, 157–158.)
Enmund and Tison illustrate the constitutional limits for
punishing accomplices to felony murder and establish a
“ ‘spectrum of culpability,’ ” with felony murderers who “ ‘actually
killed, attempted to kill, or intended to kill’ ” at one end, and
minor actors who were not present on the scene and neither
intended to kill nor had any culpable mental state, at the other.
(Scoggins, supra, 9 Cal.5th at p. 675; Banks, supra, 61 Cal.4th at
pp. 794, 800; In re Loza (2017) 10 Cal.App.5th 38, 46.)

10
“Somewhere between them, at conduct less egregious than the
Tisons’ but more culpable than . . . Enmund’s, lies the
constitutional minimum” required for the imposition of a
sentence of death or life without the possibility of parole. (Banks,
at p. 802.) Tison and Enmund did not establish a ceiling or a
floor for determining when an aider and abettor is eligible for
such a sentence, however. The fact a particular defendant
appears more culpable than Enmund does not automatically
make him death eligible; conversely, neither must a defendant be
as culpable as the Tison brothers in order for section 190.2,
subdivision (d) to apply. The question is one of degree. (In re
Miller (2017) 14 Cal.App.5th 960, 974, fn. 4; In re Bennett (2018)
26 Cal.App.5th 1002, 1014, fn. 4.)
In Banks and Clark, our state Supreme Court clarified the
meaning of the “major participant” and “reckless indifference to
human life” requirements. Banks considered “under what
circumstances an accomplice who lacks the intent to kill may
qualify as a major participant[.]” (Banks, supra, 61 Cal.4th at
p. 794.) The court listed various factors that should be
considered in making that determination: “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?” (Id. at p. 803, fn. omitted.)

11
 Banks found insufficient evidence to show the defendant
there—a getaway driver for an armed robbery—was a major
participant or acted with reckless indifference. (Banks, supra,
61 Cal.4th at pp. 805, 807–808.) No evidence established his role
in planning the robbery or procuring the weapons; during the
robbery and murder he was absent from the scene, sitting in a
car and waiting; and no evidence showed he had any role in
instigating the shooting, or could have prevented it. (Id. at
pp. 805–807.) He was “no more than a getaway driver,” like
Enmund. (Id. at p. 805.)
The following year, in Clark, the court turned its attention
to the “reckless indifference” determination. (Clark, supra, 63
Cal.4th at pp. 610–623.) Reckless indifference to human life is
“ ‘implicit in knowingly engaging in criminal activities known to
carry a grave risk of death.’ [Citation.]” (Clark, at p. 616,
quoting Tison, supra, 481 U.S. at p. 157.) It “encompasses a
willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire
that death as the outcome of his actions.” (Clark, at p. 617.)
Recklessness has both a subjective and an objective component.
Subjectively, the defendant must consciously disregard risks
known to him. Objectively, recklessness is determined by “what
‘a law-abiding person would observe in the actor’s situation,’ ”
that is, whether defendant’s conduct “ ‘involved a gross deviation
from the standard of conduct that a law-abiding person in the
actor’s situation would observe.’ [Citation.]” (Ibid.) The fact a
robbery involved a gun or carried a risk of death is insufficient,
by itself, to support a finding of reckless indifference. (Id. at
pp. 617–618; see Scoggins, supra, 9 Cal.5th at p. 677 [“ ‘the fact a
participant [or planner of] an armed robbery could anticipate

12
lethal force might be used’ is not sufficient to establish reckless
indifference to human life.” ’].)
Clark, like Banks, listed various factors to be considered
when determining whether reckless indifference existed: “Did
the defendant use or know that a gun would be used during the
felony? How many weapons were ultimately used? Was the
defendant physically present at the crime? Did he or she have
the opportunity to restrain the crime or aid the victim? What
was the duration of the interaction between the perpetrators of
the felony and the victims? What was the defendant’s knowledge
of his or her confederate’s propensity for violence or likelihood of
using lethal force? What efforts did the defendant make to
minimize the risks of violence during the felony?” (Scoggins,
supra, 9 Cal.5th at p. 677 [listing factors set forth in Clark,
supra, 63 Cal.4th at pp. 618–623].)
Based on these factors, Clark concluded that the defendant
there did not act with reckless indifference to human life. (Clark,
supra, 63 Cal.4th at p. 623.) The Clark defendant was the
“mastermind” who planned and organized a computer store
robbery, and waited across from the store’s parking lot while his
accomplices carried it out. (Id. at pp. 612, 619.) His plan called
for the robbery to take place after the store closed, when there
would be fewer people present, for any remaining employees to be
handcuffed, and for the use of a single, unloaded gun. (Id. at
pp. 613, 620–622.) However, during the robbery the mother of
one of the employees—who had come to pick him up from work—
entered the store, surprising the robbers, and Clark’s accomplice
shot her. (Id. at p. 539.) As police cars arrived, Clark fled the
scene, leaving the shooter behind. Clark concluded that the
defendant—who was not armed, was not physically present in the

13
store when the shooting occurred, did not have the intent to kill,
and attempted to minimize the likelihood of violence by timing
the robbery for a time when fewer people would be present and
use of an unloaded gun—did not act with reckless indifference to
human life. (Id. at pp. 611, 618–623; Scoggins, supra, 9 Cal.5th
at p. 676.)
Most recently, our Supreme Court considered the reckless
indifference inquiry in Scoggins, supra, 9 Cal.5th 667. Scoggins
found an insufficient showing of reckless indifference where the
defendant planned an unarmed assault and robbery, in which one
of his accomplices deviated from the contemplated plan and
unexpectedly killed the victim. (Id. at p. 671.) There, the
defendant was swindled by the victim in regard to a sale of
television sets. To exact revenge, Scoggins recruited two close
friends to ambush the victim and “ ‘beat the shit’ ” out of him,
while Scoggins waited at a nearby gas station. (Id. at pp. 671,
678.) As planned, the encounter with the victim occurred in
daylight, in a strip mall parking lot. When the victim arrived,
one of the friends pulled out a gun and shot him. (Id. at p. 672.)
Scoggins was not present at the scene of the murder, was not in a
position to restrain his accomplices, did not know a gun would be
used or plan that the victim would be killed, attempted to
minimize the risk of death by ordering the assault to occur in a
public place in broad daylight, and acted ambiguously after the
shooting. (Id. at pp. 678–683.)
b. Scope of review
A defendant whose special circumstance determination
predated Banks and Clark may challenge the sufficiency of the
evidence of the finding by means of a habeas corpus petition.
(Scoggins, supra, 9 Cal.5th at pp. 673–674.) “Where a decision

14
clarifies the kind of conduct proscribed by a statute, a defendant
whose conviction became final before that decision ‘is entitled to
post-conviction relief upon a showing that his [or her] conduct
was not prohibited by the statute’ as construed in the decision.
[Citation.] ‘In such circumstances, it is settled that finality for
purposes of appeal is no bar to relief, and that habeas corpus or
other appropriate extraordinary remedy will lie to rectify the
error[.]’ ” (Ibid.)
“When a defendant seeks habeas corpus relief, the
underlying judgment is presumed valid” (In re Bennett, supra,
26 Cal.App.5th at p. 1018), and we view the facts favorably to the
prosecution. (In re Parrish (2020) 58 Cal.App.5th 539, 541.) “In
a habeas corpus challenge to the sufficiency of the evidence to
support a special circumstance finding, the ‘standard of review
. . . is whether, when evidence that is reasonable, credible, and of
solid value is viewed “in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the allegation beyond a reasonable doubt.”
[Citations.] The standard is the same under the state and federal
due process clauses. [Citation.] We presume, in support of the
judgment, the existence of every fact the trier of fact could
reasonably deduce from the evidence, whether direct or
circumstantial.’ ” (In re Bennett, at p. 1018; In re McDowell,
supra, 55 Cal.App.5th at p. 1008; In re Miller, supra, 14
Cal.App.5th at p. 974; In re Loza, supra, 10 Cal.App.5th at p. 46.)
Determination of whether the evidence demonstrates
reckless indifference and major participation is a “fact-intensive
and individualized inquiry” (In re Parrish, supra, 58 Cal.App.5th
at p. 542) in which we consider the totality of the circumstances.
(Scoggins, supra, 9 Cal.5th at p. 677.) The Banks and Clark

15
factors overlap, and “ ‘[n]o one of these considerations is
necessary, nor is any one of them necessarily sufficient.’ ” (Clark,
supra, 63 Cal.4th at pp. 614–615, 618; Banks, supra, 61 Cal.4th
at p. 803.) Smith “is entitled to habeas corpus relief ‘ “if there is
no material dispute as to the facts relating to his conviction and if
it appears that the statute under which he was convicted did not
prohibit his conduct.” ’ [Citation.]” (Scoggins, supra, 9 Cal.5th at
p. 676.)
As noted, at Smith’s request, we have judicially noticed the
record in his direct appeal. Because our 2002 opinion was issued
without the benefit of Banks and Clark, we do not limit our
review to our prior opinion in the case, but also consider
pertinent parts of the record. (In re Taylor (2019) 34 Cal.App.5th
543, 556–557.)
c. The evidence was sufficient to establish Smith was
a major participant in the robbery, but insufficient to establish he
acted with reckless indifference to human life
(i) Major participation
Applying these principles here, we conclude the evidence
was sufficient to prove Smith was a major participant in the
robbery. Smith was present during the entire robbery and
murder, from start to finish. The fact Smith coordinated his
actions with his accomplices demonstrates he knew of the plan to
carjack Arce and intended to, and did, assist in that goal. The
trio coordinated their actions: they simultaneously approached
Arce’s truck and went to opposite sides of the vehicle to surround
it. They then accosted the victims simultaneously, with Smith
pounding on the passenger side window and the twins forcing

16
their arms into the cab to hit Arce.6 Smith’s conduct was
partially responsible for causing Arce to roll down the truck’s
window, allowing the twins access to him. After the fatal shot
was fired and Arce was on the ground, Smith stood over and
stared at him. He then drove his cohorts away in the truck,
leaving Arce wounded in the parking lot.7 (See In re Parrish,
supra, 58 Cal.App.5th at p. 543 [defendant who participated in
each stage of the robbery was a major participant]; People v.
Bascomb (2020) 55 Cal.App.5th 1077, 1089 [defendant was
willingly involved in the violent manner in which the robbery
took place]; People v. Law (2020) 48 Cal.App.5th 811, 825, review
granted on another ground July 8, 2020, S262490 [same]; In re
Loza, supra, 10 Cal.App.5th at p. 50 [finding “particularly

6
Smith characterizes as mere conjecture this Division’s
conclusion, in the 2002 unpublished opinion, that the trio’s
coordinated actions indicated the crime was preplanned. We
disagree. The only reasonable inference from the evidence was
that the men planned and agreed to commit the robbery-
carjacking, albeit quickly. The fact there was no direct evidence
to prove a plan is immaterial. Circumstantial evidence may be
sufficient to prove guilt beyond a reasonable doubt. (People v.
Jones (2013) 57 Cal.4th 899, 961; CALCRIM No. 223.)
7
Smith suggests that Tyril, the “man with the gun,” got in
the driver’s seat and Smith and Sibley were passengers when
they drove the truck away. However, eyewitness Chires selected
Smith’s photograph from a pretrial six-pack lineup and stated
that he drove the truck when the assailants left. Viewing the
evidence in the light most favorable to the verdict, there was
sufficient evidence Smith was the driver. In any event, the
salient point is that Smith proceeded with the carjacking, despite
the fact his accomplice had just shot Arce.

17
significant in determining petitioner’s status as a major
participant his physical presence at the scene, involvement in the
actual robbery, and inaction either in attempting to prevent the
shootings or in assisting the victims”].)
(ii) Reckless indifference to human life
However, we cannot conclude, in light of our Supreme
Court’s clarifications in Banks and Clark, that the evidence was
sufficient to show Smith acted with reckless indifference to
human life.
As we have observed, the Banks and Clark factors overlap.
“[F]actors demonstrating petitioner’s role as a major participant
are highly relevant to the analysis of whether he acted with
reckless indifference.” (In re Loza, supra, 10 Cal.App.5th at
p. 52.) “Generally, the greater the defendant’s participation in
the felony murder, the more likely he or she acted with reckless
indifference to human life.” (People v. Garcia (2020) 46
Cal.App.5th 123, 147; Clark, supra, 63 Cal.4th at p. 615.)
Accordingly, we consider the factors articulated by Banks, as well
as by Clark.
First, there was no evidence that Smith played a significant
role in planning the crime. It appears that the Sibley twins and
Smith spontaneously decided to rob Arce, moments after finding
the Burger King closed and noticing Arce’s truck, with its gold
rims, in the parking lot. Certainly, as noted, the group must
have agreed to commit the robbery and had a rudimentary plan—
hatched in the minutes or moments after they found the Burger
King closed—as evidenced by their coordinated actions. But
given the timing, there could have been little actual planning
involved. More to the point, there was no indication that Smith

18
was the instigator or directed the other perpetrators in the effort
to rob Arce. (See In re Ramirez, supra, 32 Cal.App.5th at p. 404.)
The evidence regarding weapon use likewise does not weigh
in favor of a finding of reckless indifference. Only one weapon—
that wielded by Tyril—was used, and there was no evidence
Smith supplied it. There was no evidence Smith was armed with
or used a gun or another weapon.
Assuming Smith knew that Tyril was carrying a gun, there
was no evidence he knew Tyril planned on actually using it.
Where “ ‘the participant who personally commits the murder
exhibits behavior tending to suggest a willingness to use lethal
force,’ ” the “ ‘ “defendant’s presence allows him to observe his
cohorts so that it is fair to conclude that he shared in their
actions and mental state.” ’ ” (Scoggins, supra, 9 Cal.5th at
p. 678.) But here, Tyril did not initially display the gun,
suggesting there was no plan to shoot. The only witness who saw
where the gun came from told police that Tyril retrieved it from
his own waistband during the carjacking, as Arce was trying to
fend off the assailants. Prior to the actual shooting, Tyril does
not appear to have done anything that indicated he was
contemplating using lethal force. The fact Tyril did not display or
use the gun at the start of the carjacking undercuts the inference
that Smith should have anticipated Tyril would fatally shoot the
victim. (See In re Taylor, supra, 34 Cal.App.5th at pp. 557–558
[even assuming there was substantial evidence defendant knew
his accomplice was armed, “there is little about [defendant’s] use
or knowledge of firearms that suggests he appreciated the
planned robbery posed a heightened risk of death”]; Scoggins,
supra, 9 Cal.5th at p. 677 [fact Scoggins did not know his
accomplice would use a gun suggested he was “far less culpable”

19
than the Tison brothers].) The “mere fact of a defendant’s
awareness that a gun will be used in the felony is not sufficient to
establish reckless indifference to human life.” (Clark, supra, 63
Cal.4th at p. 618.)
Next, a “defendant’s knowledge of a confederate’s likelihood
of using lethal force, which may be evidenced before or during the
felony, is significant to the analysis of the defendant’s mental
state.” (Scoggins, supra, 9 Cal.5th at p. 681; Clark, supra, 63
Cal.4th at p. 621.) There was a dearth of evidence showing Smith
knew Tyril was prone to violence, or that he was likely to use
lethal force. There was no evidence Smith had previously
committed crimes with Tyril. There was no showing Smith knew
Tyril had committed a shooting or attacked someone with a
weapon before. There was not even evidence presented regarding
the primary activities of the men’s gang. (See Banks, supra, 61
Cal.4th at pp. 788, 796, 810–811 [although some of getaway
driver’s cohorts in armed robbery were gang members, there was
no evidence they had killed before]; In re Miller, supra, 14
Cal.App.5th at p. 976 [“[e]ven though defendant and [the killer]
belonged to the same gang and had committed follow-home
robberies together in the past, ‘[n]o evidence indicated [they] had
ever participated in shootings, murder, or attempted murder’ ”];
In re Taylor, supra, 34 Cal.App.5th at p. 558 [no evidence
defendant was aware of his accomplice’s propensity for violence,
despite knowledge of accomplice’s involvement in illegal activity
including drug sales]; In re Ramirez, supra, 32 Cal.App.5th at
p. 405.)
The “duration of the crime also counsels against finding
defendant exhibited reckless indifference to human life.” (In re
Miller, supra, 14 Cal.App.5th at p. 975.) “Where a victim is held

20
at gunpoint, kidnapped, or otherwise restrained in the presence
of perpetrators for prolonged periods, ‘there is a greater window
of opportunity for violence’ [citation] possibly culminating in
murder.” (Clark, supra, 63 Cal.4th at p. 620; Scoggins, supra,
9 Cal.5th at p. 680 [prolonged restraint of the victim can indicate
reckless indifference to human life, because it provides a greater
opportunity for violence].) Here, the duration of the incident was
short; it transpired over the course of only a few minutes, and
does not support a reckless indifference finding. (See Clark, at
p. 620 [“although the planned robbery was to be of substantial
duration . . . the period of interaction between perpetrators and
victims was designed to be limited”]; Scoggins, supra, 9 Cal.5th at
p. 681 [fact interaction with victims lasted up to five minutes,
rather than a prolonged period, did not weigh in favor of reckless
indifference finding].)
In a related vein, evidence that a defendant had the
opportunity to act as a restraining influence on his murderous
cohorts, but failed to do so, supports a reckless indifference
finding. (See Scoggins, supra, 9 Cal.5th at p. 678 [“ ‘ “the
defendant’s presence gives him an opportunity to act as a
restraining influence on murderous cohorts” ’ ”]; People v. Law,
supra, 48 Cal.App.5th at p. 825, rev.gr. [“Being at the scene of the
shooting, [defendant] could have tried to stop his accomplice’s
violent behavior or to help the victim once he had been shot, but
he did neither”]; In re Loza, supra, 10 Cal.App.5th at pp. 53–54.)
Such an opportunity cannot fairly be ascribed to Smith here.
Smith was on the opposite side of the truck from the Sibley twins
before and when Tyril shot Arce. As noted, Tyril did not pull out
his gun until midway through the carjacking. There is no
evidence from which we could logically infer Smith immediately

21
saw the weapon at that point, as he was on the opposite side of
the truck. Even if he had observed it, it appears unlikely he
would have had sufficient time to move to the driver’s side and
disarm Tyril before Tyril could fire the fatal shot.8 (See Clark,
supra, 63 Cal.4th at p. 621 [explaining that in Tison, supra, 481
U.S. at p. 140, the brothers had “advance notice” that their father
might shoot the kidnapped family because he stated he was
thinking about killing them].) Here the shooting appears to have
been impulsive and spontaneous, rather than an expected part of
the robbery, giving Smith less opportunity to restrain Tyril from
using the weapon. (See In re Taylor, supra, 34 Cal.App.5th at
p. 558 [reckless indifference absent where the evidence tended to
show shooting was a “ ‘somewhat impulsive’ response to the
victim’s unexpected resistance, as opposed to the culmination of a

8
As recounted to a Los Angeles County Sheriff’s sergeant by
an eyewitness, the Sibley twins stuck their arms through the
truck’s driver’s side window, struggling with or striking Arce.
Arce backed the truck up. As he did so, the Sibleys continued
reaching into the cab and striking him. Sibley tripped and fell.
At that point, Tyril reached into his waistband, pulled out his
gun, and stuck it inside the window, which was halfway down.
Sibley got up and returned to the truck, which was at that point
moving forward. The record does not disclose the precise amount
of time that elapsed between Tyril’s pulling the gun and firing
the shot. But according to Porcayo, when or just before the truck
stalled, the gunman forced the gun into the truck cab. Arce tried
to push the gun away. He tried to restart the truck, and then
said he had been shot. Thus, the time elapsed between Tyril’s
pulling out the gun and firing it could not have been lengthy.

22
prolonged interaction that increased the opportunity for
violence”]; In re Miller, supra, 14 Cal.App.5th at p. 975.)9
Smith’s actions after the shooting were somewhat
ambiguous. (Scoggins, supra, 9 Cal.5th at p. 679 [“A defendant’s
actions after the shooting may also bear on the defendant’s
mental state”].) As this Division observed in the 2002 opinion,
Smith did not express surprise or concern about the shooting,
suggesting reckless indifference. Since this court’s 2002 opinion
was issued, however, our Supreme Court has provided additional
guidance on this question. In Clark, the defendant waited across
the store’s parking lot in a BMW while his accomplice, Ervin,
armed with a gun, handcuffed the employees inside the store and
then shot the victim. A nearby police officer heard a gunshot and
saw Ervin run from the store toward the BMW. When Ervin
reached the BMW and tried to enter, Clark drove away, leaving
Ervin behind. (Clark, supra, 63 Cal.4th at pp. 535–537, 612,
619.) Clark reasoned that defendant’s abandonment of his
accomplice could “be interpreted either as defendant’s rejection of
Ervin’s actions in committing the shooting or as defendant’s
desire to flee the scene as quickly as possible, without regard for
Ervin’s welfare or that of the shooting victim. But, unlike in
[Tison], defendant would have known that help in the form of
police intervention was arriving. Defendant’s absence from the
scene of the killing and the ambiguous circumstances

9
Clark also focused on whether and what efforts the
defendant made to minimize the risks of violence during the
felony. (Clark, supra, 63 Cal.4th at pp. 621–622.) Here, this
factor appears neutral. As described, the carjacking was planned
on the spur of the moment, and no evidence suggests Smith
either took steps to minimize the risk of violence, or heighten it.

23
surrounding his hasty departure make it difficult to infer his
frame of mind concerning [the victim’s] death.” (Id. at p. 620.)
In Scoggins, the defendant waited at a gas station while his
accomplices carried out the planned assault nearby; one of them
unexpectedly shot the victim. (Scoggins, supra, 9 Cal.5th at
pp. 671–672, 678.) After the shooting, Scoggins walked over to
the victim, checked if he was breathing, and spoke with officers
at the crime scene. (Id. at pp. 672, 680.) The People argued that
Scoggins’s quick arrival on the scene showed “he had anticipated
the shooting and was thus unfazed by it.” (Id. at p. 680.) Relying
on Clark, Scoggins reasoned: “we have said that when different
inferences may be drawn from the circumstances, the defendant’s
actions after the shooting may not be very probative of his mental
state.” (Scoggins, at p. 679.) As in Clark, the “ambiguity
inherent” in Scoggins’s post-shooting actions made it difficult to
infer his frame of mind. (Scoggins, at p. 680.) “Scoggins’s calm
behavior after the shooting might indicate that he had
anticipated the use of lethal force and was thus not entirely
shocked by the deadly turn of events. Alternatively, Scoggins’s
actions might indicate that he in fact intended to check on [the
victim] and render aid. At the very least, his behavior could
suggest that he had not planned for his accomplices to kill [the
victim]; that is, he might have stayed at the crime scene precisely
because he did not think he was culpable for [the victim’s] death.
Overall, Scoggins’s actions after the shooting do not weigh
substantially in favor of a finding of reckless indifference to
human life.” (Ibid.)
Here, in light of Clark and Scoggins, we conclude Smith’s
actions were similarly ambiguous, notwithstanding our duty to
review the evidence in the light most favorable to the judgment.

24
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) Smith’s silent reaction could have suggested that he was
unsurprised by the shooting. But it is also a reasonable inference
that he had not expected lethal force to be used, and was
nonplussed by Tyril’s lethal use of the gun. He did not, like the
Sibley twins, kick or physically assault Arce, nor can his actions
be interpreted as ratification of the shooting. In light of this
ambiguity, we cannot conclude that his actions after the shooting
weigh in favor of a finding of reckless indifference.
Courts have relied on the fact that the defendant failed to
aid a wounded victim as a factor showing reckless indifference.
(See Clark, supra, 63 Cal.4th 619 [“appellate courts have
considered relevant a defendant’s failure to provide aid while
present at the scene”]; In re Parrish, supra, 58 Cal.App.5th at
p. 544 [reckless indifference shown in part by fact petitioner “did
not pause . . . to aid or comfort the victim”]; People v. Douglas,
supra, 56 Cal.App.5th at p. 10 [petitioner took no steps to remedy
or reduce harm after shooting; he “displayed no interest in
moderating violence or in aiding his bloody and suffering victim,”
and instead picked his pocket].) Here, Smith did nothing to aid
Arce. But, his failure is mitigated somewhat by the fact Porcayo
was present and able to call for help. And, there is no evidence
Smith appreciated how badly Arce was wounded. The gunshot
was a contact shot to Arce’s arm, not his head or chest; however,
it went through his upper arm and entered his left chest.
Porcayo testified that as the assailants drove away in the truck,
Arce was standing up, and she thought he was “fine.” (See In re
Taylor, supra, 34 Cal.App.5th at p. 559.)
The strongest factor weighing in favor of a reckless
indifference finding is Smith’s presence at the crime scene.

25
“Presence at the scene of the murder is a particularly important
aspect of the reckless indifference inquiry.” (People v. Garcia,
supra, 46 Cal.App.5th at p. 148; see People v. Law, supra, 48
Cal.App.5th at p. 825, rev.gr. [“we are not aware of a single case
that concludes a defendant who personally committed a robbery,
used a gun, and was present for the shooting did not meet the
standard in section 190.2, subdivision (d). The defendants who
have been able to get their special circumstance findings vacated
under Banks and Clark are those who were not wielding guns
themselves and also 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)”, italics added]; People
v. Murillo (2020) 54 Cal.App.5th 160, 172–173, review granted on
another ground Nov. 18, 2020, S264978 [“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.”].) Here, of course, Sibley did not use a gun.
Our research has uncovered no published case in which a
defendant who was present at the scene for the duration of the
crime was found to lack reckless indifference to human life. But
by the same token, our research has not uncovered any case in
which the evidence supporting a reckless indifference finding was
quite as limited as that presented here. In contrast, such cases
have involved more compelling evidence. (See, e.g., People v.
Douglas, supra, 56 Cal.App.5th at pp. 9–11 [robbery was
defendant’s brainchild; he planned to use a loaded gun; he
directed his accomplices’ actions during the offense; and a few
days later he conducted another armed robbery with the same
gun partner]; In re Parrish, supra, 58 Cal.App.5th at p. 544

26
[petitioner knew guns would be used in robbery and supplied one;
knew his cohorts were not peaceable; and had the opportunity to
restrain them but did not]; People v. Bascomb, supra, 55
Cal.App.5th at p. 1089 [reckless indifference shown where
defendant “cooked up a plan to break into the home of a known
drug dealer while they were home and to use force, including
firearms, to steal the dealer’s product,” and personally used a
weapon to keep some victims at bay, enabling the murder to
occur in another room]; People v. Murillo, supra, 54 Cal.App.5th
at p. 172, rev.gr. [defendant instructed his compatriot to fire the
gun]; In re McDowell, supra, 55 Cal.App.5th at pp. 1013–1014
[petitioner was armed with and brandished a knife, “chose to
plan and lead a crime with a particularly high risk of violence—a
home invasion robbery of a drug dealer,” and did not intervene
when accomplice fired warning shot and victim said “ ‘kill me if
you’re going to kill me.’ ”]; People v. Law, supra, 48 Cal.App.5th
at p. 825, rev.gr. [defendant broke into the victim’s house armed,
used a gun to threaten the victim, and did not intervene when
accomplice pistol whipped the victim]; People v. Garcia, supra,
46 Cal.App.5th at pp. 146–148 [reckless indifference shown
where defendant planned home invasion robbery that lasted at
least 40 minutes, provided duct tape to bind and gag the victim,
which asphyxiated him, hit another victim in the face, causing an
injury that required stitches, and disconnected phones to prevent
the victims calling for help]; In re Loza, supra, 10 Cal.App.5th at
pp. 52–54 [reckless indifference shown where defendant
suggested the robbery, supplied accomplice with a gun, knew
accomplice claimed to have killed someone earlier that morning,
and failed to intervene when accomplice “counted down” while
threatening to shoot the store clerk]; People v. Medina (2016)

27
245 Cal.App.4th 778, 792 [defendant played a role in planning
the criminal enterprise, had and used a gun, and his prior
experience with accomplice gave him an awareness of danger and
risk of death].)
Thus, while the showing of reckless indifference was not as
weak as in Enmund, it falls closer on the continuum to that case
than to Tison. Certainly, we do not minimize Smith’s atrocious
behavior. Carjacking a vehicle occupied by a young family and a
baby is abhorrent. But, given the totality of the circumstances,
under Banks and Clark nothing in the evidence “elevated the risk
to human life beyond those risks inherent in any armed robbery.”
(Clark, supra, 63 Cal.4th at p. 623.) We conclude the evidence
was insufficient to prove the special circumstance allegation after
Banks and Clark.10

10
This Division’s 2002 opinion concluded the evidence
overwhelmingly established reckless indifference for several
reasons, most of which are no longer tenable after Banks and
Clark. The opinion reasoned that carjacking was an inherently
dangerous and heinous felony, and the potential for death results
from the very presence of a firearm at the scene of a crime. But
our Supreme Court has since made clear that the mere presence
of a firearm—and, indeed, the foreseeable risk of death in an
armed robbery—is insufficient to prove reckless indifference.
“ ‘Awareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient’ to establish
reckless indifference to human life[.]” (Scoggins, supra, 9 Cal.5th
at p. 677; Banks, supra, 61 Cal.4th at p. 808; Clark, supra, 63
Cal.4th at pp. 617–618 [the fact a robbery involves a gun is
insufficient, by itself, to support a finding of reckless
indifference].). The Supreme Court has also held that the fact a
felony is inherently dangerous, and is listed in section 189, does
not necessarily demonstrate reckless indifference. (Banks, at
p. 810 [“Whether a category of crimes is sufficiently dangerous to

28
 2. Smith’s section 1170.95 petition
As noted, Smith has also appealed the trial court’s denial of
his petition, pursuant to section 1170.95, for vacation of his
murder conviction and resentencing. He contends that his
section 1170.95 petition was facially sufficient and established a
prima facie case for relief, statutorily entitling to him to the
appointment of counsel and requiring the court to consider
briefing. The trial court also erred, he argues, by considering this
court’s prior opinion in the case, an action he characterizes as an
“ex parte investigation.” Further, he posits that because his jury
was not instructed on the major participant/reckless indifference
requirement, the true finding on the special circumstance does
not render him ineligible for relief as a matter of law, nor does
this court’s pre-Banks and Clark finding that the instructional
error was harmless. And, he urges, the failure to appoint counsel
also violated his constitutional rights to counsel at all critical
stages of the proceeding, and to procedural and substantive due
process. These errors, he asserts, amounted to prejudicial and
structural error, requiring reversal. Because we have now
concluded that the evidence is insufficient, under Banks and
Clark, to support the special circumstance finding, we need not
reach these contentions. Instead, we order reversal of the trial

warrant felony-murder treatment, and whether an individual
participant has acted with reckless indifference to human life,
are different inquiries.”]; Clark, at p. 616 [although felonies listed
in section 189 are deemed inherently dangerous, a defendant
involved in such a felony does not automatically exhibit reckless
indifference].)

29
court’s order denying the petition, and remand for further
proceedings.
a. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Gentile (2020) 10 Cal.5th 830, 842–843; People v.
Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review
granted Mar. 18, 2020, S260493; People v. Munoz (2019) 39
Cal.App.5th 738, 749–750, 763, review granted Nov. 26, 2019,
S258234.) Prior to Senate Bill 1437’s enactment, under the
felony-murder rule “a defendant who intended to commit a
specified felony could be convicted of murder for a killing during
the felony, or attempted felony, without further examination of
his or her mental state.” (People v. Lamoureux (2019) 42
Cal.App.5th 241, 247–248.) Senate Bill 1437 amended the felony-
murder rule by adding section 189, subdivision (e), which
provides that a participant in the perpetration of qualifying
felonies is liable for felony murder only if the person: (1) was the
actual killer; (2) was not the actual killer but, with the intent to
kill, acted as a direct aider and abettor; or (3) the person was a
major participant in the underlying felony and acted with
reckless indifference to human life, as described in section 190.2,
subdivision (d). (See Gentile, at p. 842.)
As noted ante, Senate Bill 1437 also added section 1170.95,
which created a procedure whereby persons convicted of murder
under a now-invalid felony-murder or natural and probable
consequences theory may petition for vacation of their convictions

30
and resentencing. A defendant is eligible for relief if he could no
longer be convicted of first or second degree murder due to
changes to sections 188 and 189 effectuated by Senate Bill 1437.
(§ 1170.95, subd. (a).)
Generally, evaluation of a section 1170.95 petition requires
a multi-step process: an initial review to determine the petition’s
facial sufficiency; a prebriefing, “ ‘first prima facie review’ ” to
preliminarily determine whether the petitioner is statutorily
eligible for relief as a matter of law; and a second, postbriefing
prima facie review to determine whether the petitioner has made
a prima facie case that he or she is entitled to relief. (People v.
Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington), review
granted Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th
at pp. 327–330, rev.gr.) If the court can determine, based upon
its review of readily ascertainable information in the record of
conviction and the court file, that the petitioner is statutorily
ineligible for relief as a matter of law, it may summarily deny the
petition without appointing counsel. (Tarkington, at pp. 898,
900–902; Verdugo, at p. 332; People v. Lewis (2020) 43
Cal.App.5th 1128, 1139–1140, review granted Mar. 18, 2020,
S260598; but see People v. Cooper (2020) 54 Cal.App.5th 106,
review granted Nov. 10, 2020, S264684.)11 If the petitioner’s
ineligibility is not established as a matter of law, the court must
appoint counsel and permit briefing to determine whether the

11 Our California Supreme Court is currently reviewing
whether a trial court may consider the record of conviction in
determining whether a defendant has made a prima facie
showing of eligibility for relief under section 1170.95, and when
the right to counsel arises under section 1170.95, subdivision (c).
(People v. Lewis, S260598.)

31
petitioner has made a prima facie showing he or she is entitled to
relief. (Verdugo, at p. 330; Tarkington, at p. 898.) If the
petitioner makes such a showing, the court must issue an OSC
and conduct a hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subds. (c), (d); People v. Nguyen
(2020) 53 Cal.App.5th 1154, 1166.)
Controlling here is section 1170.95, subdivision (d)(2). That
subdivision provides, in pertinent part: “If there was a prior
finding by a court or jury that the petitioner did not act with
reckless indifference to human life or was not a major participant
in the felony, the court shall vacate the petitioner’s conviction
and resentence the petitioner.” This subdivision imposes “a
mandatory duty on the court to vacate defendant’s sentence and
resentence him whenever there is a prior finding of this court
that the defendant was not a major participant in the underlying
felony and did not act with reckless indifference to human life.”
(People v. Ramirez (2019) 41 Cal.App.5th 923, 932.) Where such
a circumstance exists, the trial court must proceed directly to
resentencing, rather than going through the steps of issuing an
OSC and conducting a hearing. (Ibid.)
b. Application here
In light of our disposition of Smith’s habeas petition, his
arguments regarding the trial court’s failure to follow the proper
procedures are moot. Based on our conclusion that the evidence
did not establish he acted with reckless indifference, he is
entitled to vacation of his murder conviction and resentencing.
When the trial court ruled, of course, there was no “prior”
finding by an appellate court or jury that he did not act with
reckless indifference. Unlike in Ramirez, the trial court here did

32
not err by disregarding such a finding. (See People v. Ramirez,
supra, 41 Cal.App.5th at p. 930.) Nonetheless, assuming the
court’s denial of the petition was correct at the time it ruled, it
cannot now stand. Requiring Smith to file a new section 1170.95
petition would be a waste of time and resources. In Ramirez, for
example, the trial court disregarded an appellate court’s prior
finding that the defendant was not a major participant who acted
with reckless indifference. (People v. Ramirez, at p. 930.) The
People conceded that the trial court’s ruling was error, but
nonetheless requested that the court be required to complete the
steps set forth in section 1170.95, including issuance of an OSC.
(People v. Ramirez, at p. 930.) Ramirez rejected this approach,
observing that the “delay proposed by respondent would run
directly counter to the statute’s stated purpose of eliminating
lengthy sentences which have been declared incommensurate
with . . . culpability.” (Id. at p. 933.)
Similarly, here, requiring Smith to file a new section
1170.95 petition would be a pointless and idle act. Instead, the
more expeditious course of action is to remand to allow the trial
court to reconsider Smith’s section 1170.95 petition in light of our
ruling on his habeas petition.
We therefore remand this matter to the trial court, with
directions to vacate Smith’s murder conviction pursuant to
section 1170.95, subdivision (d)(2), appoint counsel, allow
briefing, if requested, on the issue of resentencing, and conduct a
full resentencing hearing. (See generally People v. Buycks (2018)
5 Cal.5th 857, 893; People v. Burbine (2003) 106 Cal.App.4th
1250, 1256.)

33
 DISPOSITION
The petition for writ of habeas corpus is granted. The true
finding on the robbery-murder special circumstance allegation
under section 190.2, subdivision (a)(17) is vacated. The matter is
remanded to the court that ruled on the section 1170.95 petition
with instructions to reconsider the petition, appoint counsel for
Smith, vacate his murder conviction under section 1170.95,
subdivision (d)(2), and resentence him in accordance with section
1170.95, subdivision (d)(3).
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

EGERTON, J.

SALTER, J.*

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

34