Filed 11/2/21 P. v. Thomas CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078289
Plaintiff and Respondent,
v. (Super. Ct. No. SCD102585)
STEVEN GARY THOMAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Joan P. Weber, Judge. Reversed and remanded.
Andrea S. Bitar, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal and Randall D. Einhorn, Deputy Attorneys General for Plaintiff and
Respondent.
Steven Gary Thomas, who was convicted of special circumstance felony
murder in 1996, appeals the summary denial of his petition for recall and
resentencing pursuant to Penal Code section 1170.95.1 The trial court
denied his petition at the prima facie stage, concluding the jury’s special
circumstance findings of robbery-murder and kidnapping-murder rendered
Thomas categorically ineligible for relief. To the extent the Supreme Court’s
postconviction decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark) narrowed special circumstance
liability for felony murder, the trial court followed case law that would
require Thomas to first file a petition for writ of habeas corpus before seeking
resentencing under section 1170.95.
For reasons we recently explained in both People v. Arias (2021) 66
Cal.App.5th 987, review granted September 29, 2021, S270555 (Arias) and
People v. Wilson (2021) 69 Cal.App.5th 665 (Wilson), we are persuaded that a
felony murder special circumstance finding predating Banks and Clark does
not categorically render a section 1170.95 petitioner ineligible for relief. The
court erred in denying Thomas’s petition solely on that basis. Given the
limited record of conviction before us, we are unable to conclude that the
special circumstance findings satisfy Banks and Clark so as to preclude
section 1170.95 relief. We therefore remand to permit the trial court to
assess that matter in the first instance and decide whether Thomas has made
a prima facie showing that he is entitled to resentencing relief.
1 Further undesignated statutory references are to the Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Murder Conviction and Direct Appeal2
In the early hours of May 8, 1994, Karl S., Misty H., and Susan W.
returned to San Diego from a workshop in Borrego Springs. Karl pulled his
red Toyota up to Susan’s apartment in Point Loma shortly after midnight,
planning to drop her off first before taking Misty home. The three unloaded
items from the car. As the two women were upstairs in Susan’s apartment,
Karl went out to bring up the final load. Susan and Misty grew concerned
after twenty minutes passed with no sign of Karl and peered out the window.
They did not see Karl or his car but noticed Misty’s blue suitcase and bags of
groceries lying in the street. Around 1:00 a.m., Susan’s neighbor Michael C.
saw two African American men walking down Mentone Street. One said to
the other, “ ‘This one over here, man.’ ” Michael later saw the same two
men in a red Toyota; the car backed up over some luggage and sped off. At
6:30 the next morning, neighbor Charles H. looked outside the window and
observed what looked like a bag of trash or a person lying on the ground.
When the object was still there an hour later, Charles called police.
Responding law enforcement found Karl’s dead body. He had been
stabbed five times in the chest with a knife. Around 7:00 a.m., a police
community service officer found Karl’s car, abandoned with the key on the
roof. Palm prints and fingerprints lifted from the vehicle and its contents
matched Thomas.
2 We draw the following facts from our 1997 opinion addressing
Thomas’s direct appeal from the judgment in People v. Thomas (Oct. 21,
1997, D025797) [nonpub. opn.] (Thomas I). An affidavit from the court
reporter supervisor indicates that transcripts of the original trial have been
destroyed (Gov. Code, § 69955, subd. (e)).
3
Thomas’s girlfriend Tijwanna J. indicated that Thomas had left around
7:30 p.m. the night before with Leon McInnis and returned around 3:00 or
4:00 o’clock the next morning. A few days after the homicide, Tijwanna saw
McInnis retrieve a knife from the rain gutter of her apartment building and
throw it on the ground toward Thomas, who picked it up.3 Tijwanna
described Thomas and McInnis as inseparable, but said neither had a
“dominant leadership role.” When police interviewed Thomas and told him
his prints were recovered from Karl’s car, he said a person named Paul
Boykin instigated the carjacking and killing, and that Thomas merely went
along because Boykin had threatened him with a gun.
The San Diego County District Attorney charged McInnis and Thomas
with a series of carjacking incidents, one (Karl’s) ending in homicide. The
amended indictment alleged that in murdering Karl, Thomas “personally
used a deadly and dangerous weapon, to wit, a knife” (§ 12022, subd. (b)). It
further alleged the murder occurred while Thomas was engaged in a robbery
and in a kidnapping (§ 190.2, subd. (a)(17)).
At trial, the prosecution examined medical officer John Eisele, who
opined based on the autopsy that Karl was alive and conscious when he was
stabbed. Eisele believed Karl did not try to defend himself and was stabbed
while being restrained. Susan, Misty, Michael, and Charles provided
circumstantial evidence tending to show that Thomas and McInnis carjacked
Karl, rifled through the contents of the vehicle (the robbery), took off with
3 The probation report adds some other details, but it is unclear from our
record whether these additional facts were presented to the jury. According
to the report, Tijwanna stated that McInnis retrieved the knife from her rain
gutter after Thomas tried to do so unsuccessfully. The probation report
further relates that when McInnis threw the knife down, Thomas picked it up
and “put it in his pocket.”
4
him in the car (the kidnapping), drove Karl back and at some point stabbed
him before dumping his body and speeding off in his car.
The jury also heard evidence connected to two other charged incidents
occurring earlier that week. On May 5, 1994, Thomas and McInnis held up a
college student at knifepoint, took his wallet and watch, and forced him to
drive in his red Honda to a nearby ATM to withdraw additional money.
Thomas and McInnis told the student they would let him go because he had
cooperated. When the car was recovered, a suede jacket and tape recorder
were missing. In a separate incident on May 7, a parked silver Toyota was
stolen. It was found in Point Loma near Susan’s apartment, and latent
fingerprints lifted from the car matched Thomas.
Defense counsel conceded murder liability but disputed the special
circumstance allegations. Under the defense theory, Thomas, who suffered
brain damage from a childhood car accident, was not the actual killer
(§ 190.2, subd. (b)), did not intend to kill Karl (id., subd. (c)), and was not a
major participant in the underlying felonies who acted with reckless
indifference to life (id., subd. (d)). Neuropsychologist Dean Delis and a
neurologist James Grisolia both examined Thomas and believed his mental
faculties would have made him more of a passive follower than a leader. 4
A defense investigator recounted a conversation with Thomas’s girlfriend
Tijwanna, who described Thomas as being the quieter of the two and McInnis
as the leader. Finally, the defense examined pathologist Paul Wolf, who
4 The prosecution presented evidence in rebuttal from radiologists who
downplayed the severity of brain damage reflected on Thomas’s MRI scan
and a psychiatrist who opined that any brain damage would not have
impacted his behavior. Delis disputed the psychiatrist’s findings on
surrebuttal.
5
testified that Karl may have been stabbed while lying on the ground, rather
than while restrained as the prosecution’s pathologist suggested.
The jury convicted Thomas of first degree murder (§ 187, subd. (a)) and
found true allegations that the murder was committed during the commission
of a robbery (§ 190.2, subd. (a)(17)(A)), and during the commission of a
kidnapping (id., subd. (a)(17)(B)). But the jury determined Thomas did not
personally use a weapon in Karl’s murder.5 As we explained in our prior
opinion, that meant they harbored at least a reasonable doubt whether
Thomas was the actual killer and based the true special circumstance
findings on Thomas aiding and abetting the killing with intent to kill, or on
Thomas being a major participant in the robbery or kidnapping and acting
with reckless indifference to human life.6 In a bifurcated penalty phase trial,
the jury returned a verdict of life without the possibility of parole.
Thomas asserted three arguments on appeal. We rejected his challenge
to the exclusion of propensity evidence that he claimed tended to paint
McInnis as the actual killer. We likewise did not accept his instructional
error claim regarding the court’s denial of a clarifying instruction on the
meaning of “major participant” in section 190.2, subdivision (d). Finally, we
5 By contrast, the jury did find that Thomas personally used a knife in
connection with the carjacking, kidnapping, and robbery of the college
student on May 5, 1994.
6 Testimony by a prosecution witness that Karl was restrained while
being stabbed could support a theory that Thomas aided and abetted the
stabbing with intent to kill (§ 190.2, subd. (c)), but the evidence on this point
was in conflict. The defense pathologist testified that Karl could have been
stabbed as he lay on the ground. In addition, the defense presented evidence
that Thomas had impaired mental capacities to suggest he did not have any
intent to kill.
6
were not persuaded by his multiple punishment claim under section 654.
Accordingly, we affirmed the judgment (Thomas I, supra, D025797).
B. Senate Bill No. 1437
Effective January 1, 2019, Senate Bill No. 1437 (Stats. 2018, ch. 1015)
overhauled sections 188 and 189 to substantially narrow felony murder
liability and murder liability under the natural and probable consequences
doctrine. As relevant here, first degree felony murder now requires proof
beyond a reasonable doubt that the defendant: (1) “was the actual killer”;
(2) “was not the actual killer but, with intent to kill aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree,” or (3) “was a major participant in
the underlying felony and acted with reckless indifference to human life.”
(§ 189, subd. (e).) These requirements now mirror the requirements for
special circumstance felony murder liability under section 190.2, subdivisions
(b) through (d).
Beyond amending the substantive requirements for murder liability,
Senate Bill No. 1437 also codified a new statute—section 1170.95—which
“established a procedure permitting certain qualifying persons who were
previously convicted of felony murder or murder under the natural and
probable consequences doctrine to petition the courts that sentenced them to
vacate their murder convictions and obtain resentencing on any remaining
counts.” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 246 (Lamoureux).)
A defendant is eligible for resentencing relief under section 1170.95
“when all of the following conditions apply: [¶] (1) A complaint, information,
or indictment was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was convicted of first
7
degree or second degree murder following a trial or accepted a plea offer in
lieu of a trial at which the petitioner could be convicted for first degree or
second degree murder. [¶] (3) The petitioner could not be convicted of first or
second degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a).)
To seek resentencing, a defendant must file a petition that includes a
declaration confirming the eligibility criteria above. (§ 1170.95, subd. (b).)
If requested, the court appoints counsel. (People v. Lewis (2021) 11 Cal.5th
952, 963, 966−967 (Lewis).) Each side then submits briefing as to whether
the defendant has made a prima facie showing of eligibility. (Id. at p. 966;
§ 1170.95, subd. (c).) In deciding this issue, the trial court may rely on the
record of conviction to “distinguish petitions with potential merit from those
that are meritless.” (Lewis, at pp. 970−971.) But it must hew to the narrow
scope of the prima facie inquiry, which asks only whether a petitioner’s
factual allegations, if true, would entitle him or her to relief. (Id. at p. 971.)
Courts do not weigh the evidence, exercise discretion, or engage in
factfinding. (Ibid.) The record of conviction may be considered at this stage
solely to the extent it refutes allegations in defendant’s petition. (Ibid.)7
If a defendant makes a prima facie showing, the court issues an order
to show cause. (§ 1170.95, subd. (c).) An evidentiary hearing follows where
the prosecution bears the burden of proving beyond a reasonable doubt that
7 A record of conviction includes documents that “reliably reflect the
conduct of which a defendant was convicted.” (People v. Houck (1998) 66
Cal.App.4th 350, 356‒357, discussing People v. Reed (1996) 13 Cal.4th 217,
223.) That includes appellate opinions, such as a prior opinion on direct
appeal. (Lewis, supra, 11 Cal.5th at p. 972, citing People v. Woodell (1998)
17 Cal.4th 448, 454−457.) By contrast, the record of conviction excludes
matters that do not reveal the basis of the underlying conviction, such as a
defendant’s postconviction statements contained in a presentence probation
report. (See People v. Trujillo (2006) 40 Cal.4th 165, 179.)
8
the defendant is ineligible for resentencing. (Id., subd. (d)(3).) “The
prosecutor and the petitioner may rely on the record of conviction or offer new
or additional evidence to meet their respective burdens.” (Ibid.) Following
the hearing the court must decide whether to grant resentencing relief. If
relief is granted, the court will vacate the murder conviction, recall the
sentence, and resentence the defendant to a lesser term on any remaining
counts. (Id., subd. (d)(1)−(2).)
C. Thomas’s Resentencing Petition
Representing himself, Thomas filed a section 1170.95 petition in April
2019 and requested the appointment of counsel. By checking boxes on a
preprinted form, he declared that he could no longer be convicted of first
degree felony murder based on Senate Bill No. 1437’s amendments to section
189, subdivision (e). Specifically, Thomas alleged he was not the actual
killer, did not aid the killer with intent to kill, and was not a major
participant in the felony who acted with reckless indifference to human life.
The People filed an initial response challenging the constitutionality of
Senate Bill No. 1437 and claiming that Thomas’s special circumstance
findings precluded resentencing relief.8 Attached to the prosecution’s brief
were the amended indictment, jury verdict forms, trial minutes, and our prior
opinion on direct appeal. (Thomas I, supra, D025797.)
Appointed defense counsel filed a reply brief arguing the special
circumstance findings, which were made by the jury in 1996, did not preclude
resentencing relief under section 1170.95. As counsel explained, the Supreme
Court’s postconviction rulings in Banks and Clark substantially narrowed the
terms “major participant” and “reckless indifference to human life” within the
8 They do not reassert their constitutionality challenge on appeal. (See
People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275; People v.
Lamoureux, supra, 42 Cal.App.5th at p. 246.)
9
special circumstance statute (§ 190.2, subd. (d)). Accordingly, a felony
murder special circumstance finding predating those decisions would not
necessarily qualify for felony murder liability under section 189, subdivision
(e)(3) as amended by Senate Bill No. 1437. Counsel acknowledged a split of
authority among the courts of appeal on this issue but urged the trial court to
follow cases like People v. Torres (2020) 46 Cal.App.5th 1168, 1179−1190,
review granted June 24, 2020, S262011 (Torres) in finding no categorical
bar.9 In response, the People filed a supplemental brief urging the trial court
to reject Torres and instead follow cases like People v. Galvan (2020) 52
Cal.App.5th 1134, 1142, review granted October 14, 2020, S264284 (Galvan)
by requiring Thomas to petition for habeas relief under Banks and Clark
before filing a section 1170.95 petition.10
In October 2020, the trial court issued an order summarily denying
Thomas’s section 1170.95 petition. Following the Galvan line of cases, it
9 See also People v. Smith (2020) 49 Cal.App.5th 85, 93–94, review
granted July 22, 2020, S262835; People v. York (2020) 54 Cal.App.5th 250,
259–261, review granted November 18, 2020, S264954; People v. Harris
(2021) 60 Cal.App.5th 939, 956–958, review granted April 28, 2021, S267802
(Harris); People v. Secrease (2021) 63 Cal.App.5th 231, 249–254, review
granted June 30, 2021, S268862 (Secrease); People v. Gonzalez (2021) 65
Cal.App.5th 420, review granted August 18, 2021, S269792; People v. Pineda
(2021) 66 Cal.App.5th 792, review granted September 29, 2021, S270513;
Arias, supra, 66 Cal.App.5th 987, review granted; Wilson, supra, 69
Cal.App.5th 665.
10 See also People v. Gomez (2020) 52 Cal.App.5th 1, 17, review granted
October 14, 2020, S264033; People v. Jones (2020) 56 Cal.App.5th 474, 483–
484, review granted January 27, 2021, S265854; People v. Allison (2020) 55
Cal.App.5th 449, 457; People v. Murillo (2020) 54 Cal.App.5th 160, 168,
review granted November 18, 2020, S264978; People v. Nunez (2020) 57
Cal.App.5th 78, 95–96, review granted January 13, 2021, S265918; People v.
Simmons (2021) 65 Cal.App.5th 739, 747−749, review granted September 1,
2021, S270048.
10
reasoned: “[B]ecause there has been a special circumstance finding that
Petitioner was a major participant and acted with reckless indifference to
human life, he is precluded from relief pursuant to Penal Code section
1170.95, absent habeas relief as to the special circumstance finding.”
DISCUSSION
Thomas appeals the summary denial of his section 1170.95 petition.
Applying de novo review (Arias, supra, 66 Cal.App.5th at p. 999, review
granted), we agree the court erred in concluding that his pre-Banks and
Clark special circumstance findings constitute a categorical bar to
resentencing relief. But that conclusion does not alone require issuance of an
order to show cause. (Arias, at p. 1004.) For reasons we explain, our limited
record requires us to remand to permit the trial court to resume its prima
facie inquiry and evaluate whether there is sufficient evidence to support
Thomas’s special circumstance findings under Banks and Clark. (Arias, at
pp. 1005−1006.) If there is, Thomas could not show that he could not be
convicted of felony murder following amendments made by Senate Bill
No. 1437, and he would be ineligible for resentencing relief. On the other
hand, if the evidence is insufficient—as it would appear to be based only on
the limited record before us—the court must issue an order to show cause.
A. The Trial Court Erred in Summarily Denying Thomas’s Petition.
California’s special circumstance statute identifies those crimes deemed
sufficiently reprehensible to warrant possible punishment by death or life
without the possibility of parole (LWOP). (Banks, supra, 61 Cal.4th at
p. 797.) One such special circumstance applies to murder that takes place in
the commission of an enumerated felony. (§ 190.2, subd. (a)(17).) Defendants
convicted of first degree felony murder who are not the actual killer can only
be guilty of special circumstance felony murder if they aid in the murder with
11
intent to kill (id., subd. (c)) or, lacking an intent to kill, aid in the felony “with
reckless indifference to human life and as a major participant.” (Id.,
subd. (d).)
In the last decade, the Supreme Court has substantially narrowed the
meanings of the terms “major participant” and “reckless indifference to
human life” under section 190.2, subdivision (d). The court held in Banks
that to assess whether a defendant’s participation in activities known to
carry a grave risk of death was sufficiently significant to be deemed “major,”
courts must consider the defendant’s role in planning the criminal enterprise
and supplying or using lethal weapons; defendant’s awareness of particular
dangers posed by the nature of the crime, weapons used, or past experience
or conduct of the participants; whether the defendant was at the scene of the
killing, in a position to facilitate or prevent the actual murder, and by action
or inaction played a particular role in the death; and what the defendant did
after lethal force was used. (Banks, supra, 61 Cal.4th at p. 803.) As the court
explained in Clark, similar factors, both subjective and objective, inform
whether a defendant acted with “reckless indifference to human life,”
including a defendant’s knowledge that weapons would be used and/or
personal use of weapons; his or her knowledge of an accomplice’s propensity
to kill; the defendant’s physical presence at the scene and opportunity to
restrain the killer or aid the victim; any efforts taken to minimize the risk of
violence in committing the felonies; and the duration of the felony. (Clark,
supra, 63 Cal.4th at pp. 618−623.)
Thomas was convicted of special circumstance felony murder in 1996,
long before the Supreme Court’s rulings in Banks and Clark narrowed such
liability under section 190.2, subdivision (d). As the parties note, there is a
split among the Courts of Appeal as to whether this type of special
12
circumstance precludes relief under section 1170.95 absent prior habeas
review, and the conflict will be resolved by the California Supreme Court.
(See fns. 9 and 10, ante.11) In the meantime, “[i]t will suffice for us to state
that we are persuaded by the logic of the courts that have concluded pre-
Banks and Clark felony-murder special-circumstance findings do not
categorically preclude defendants from obtaining resentencing relief under
section 1170.95.” (Arias, supra, 66 Cal.App.5th at p. 1004, review granted;
see Wilson, supra, 69 Cal.App.5th at p. 673.) “While it is true that the
language of section 189, subdivision (e)(3) tracks language that has always
been a part of section 190.2, subdivision (d), Banks and Clark placed new
limits on its meaning.” (Secrease, supra, 64 Cal.App.5th at p. 254, review
granted.) Reasonably construed, section 1170.95 requires courts to
undertake a Banks/Clark review at the prima facie stage for a special
circumstance finding made before the Banks and Clark decisions to preclude
resentencing relief under section 1170.95. (Secrease, at p. 255.) By
summarily rejecting Thomas’s petition based solely on the existence of the
1996 felony-murder special circumstance findings, the trial court erred.
(Arias, at p. 1004.)
B. Remand is Necessary for the Trial Court to Determine on a Fuller
Record Whether Thomas’s Record of Conviction Forecloses Resentencing
Relief.
Although special circumstance findings made before Banks and Clark
do not automatically preclude Thomas from resentencing relief, “that fact
11 The Court will address the following issue in People v. Strong: “Does a
felony-murder special circumstance finding (§ 190.2, subd. (a)(17)) that was
made before [Banks, supra, 61 Cal.4th 788] and [Clark, supra, 63 Cal.4th
522] were decided preclude a defendant from making a prima facie showing
of eligibility for relief under section 1170.95?” (People v. Strong (Dec. 18,
2020, C091162) [nonpub. opn.], review granted Mar. 10, 2021, S266606.)
13
alone does not require us to reverse and remand the matter for the trial court
to issue an order to show cause.” (Arias, supra, 66 Cal.App.5th at p. 1004,
review granted.) Instead, appellate courts including ours conduct an
individualized review to evaluate whether a jury’s pre-Banks and Clark
special circumstance finding meets the Banks/Clark criteria. (Secrease,
supra, 63 Cal.App.5th at p. 225, review granted; Arias, at p. 1004; see also
Wilson, supra, 69 Cal.App.5th at p. 686.) This approach is in keeping with
our Supreme Court’s recent guidance in Lewis that trial court error at the
prima facie stage is reviewed for prejudice under state law. (Lewis, supra,
11 Cal.5th at pp. 972−974.) The trial court’s erroneous conclusion that pre-
Banks and Clark special circumstance findings rendered Thomas ineligible
for relief would be harmless under that standard if substantial evidence
nonetheless supported the jury’s special circumstance findings under Banks
and Clark—in this scenario, Thomas would be unable to show he could no
longer be convicted of first degree murder, as he would need to do to meet his
prima facie burden. (See § 1170.95, subds. (a)(3), (b)(1)(A).) While Lewis
permits courts to review a defendant’s record of conviction to evaluate
whether it refutes a prima facie showing (Lewis, at p. 972 & fn. 6), we
explained in Arias why such review typically cannot proceed on appeal from
an incomplete record. (66 Cal.App.5th at pp. 1004−1006, review granted.)
Our limited record—consisting of the charging document, trial minutes,
jury verdicts, and our prior opinion in Thomas I, supra, D025797—does not
address most of the Banks/Clark factors. This appears to have been a
circumstantial evidence case. The prosecution pieced together witness
accounts before and after the killing to prove that Thomas and McInnis
carjacked Karl, drove him somewhere in his car, returned, stabbed him, left
the body, and sped away. Thomas’s prints were found on the vehicle and its
14
contents; an autopsy sketched out some aspects of the killing; and Tijwanna
described what happened to the knife.
But this hazy picture from Thomas I leaves much unanswered. Our
prior opinion does not mention any evidence regarding Thomas’s role in
planning the carjacking, whether he was involved in supplying the knife, or
his awareness of particular dangers posed given the nature of the crime,
weapons used, or past experience with McInnis. The fact that carjacking and
vehicular theft incidents earlier that same week left the victims unscathed
could support an inference that Thomas would not expect any particular
dangers in joining another carjacking with McInnis. A jury could reasonably
find that Thomas was present at the scene of the killing, but Thomas I does
not address whether he was in a position to facilitate or prevent the stabbing
or played any particular role in it. He sped away sometime after lethal force
was used, but it is unclear if he could have otherwise rendered aid. The jury
acquitted Thomas of using the murder weapon, and there was conflicting
evidence as to whether Karl was restrained while stabbed. On this limited
record, only two of the Banks factors suggesting “major participation” can be
found—that Thomas was at the scene of the murder and did not render aid to
Karl. While no single Banks factor is essential or dispositive (Banks, supra,
61 Cal.4th at p. 803), the evidence described in Thomas I and the jury’s
verdicts and findings do not suggest any “participation ‘in criminal activities
known to carry a grave risk of death’ ” that “was sufficiently significant to be
considered ‘major’ [citations].” (Banks, at p. 803.)
Thomas I, supra, D025797 is likewise silent on many of the Clark
factors signaling a defendant’s “reckless indifference to human life.” As
discussed, a jury could determine Thomas was at the scene and did not
render aid, but it also found that Thomas did not use a weapon. Left
15
unanswered are whether Thomas knew a knife would be used or McInnis’s
propensity to kill; the duration of the felony; and any efforts by Thomas to
minimize the risk of violence. (Clark, supra, 63 Cal.4th at pp. 618−623.)12
In short, the limited record of conviction before us does not reveal sufficient
evidence to show that Thomas aided and abetted the kidnapping or robbery
“with reckless indifference to human life and as a major participant” (§ 190.2,
subd. (d)) as those terms are defined in Banks and Clark. (Compare People v.
Law (2020) 48 Cal.App.5th 811, 825, review granted July 8, 2020, S262490
[sufficient evidence of Banks/Clark factors existed as to defendant who used
a gun, was present at the shooting, and “was willingly involved in the violent
manner in which his and [his accomplice’s] robbery took place”] with Arias,
supra, 66 Cal.App.5th at p. 1005, review granted [insufficient evidence of
Banks/Clark factors existed on a limited record that did not address
defendant’s role in supplying or using weapons, his presence at the scene, his
opportunity to prevent the killing or aid the victim, and his awareness of the
dangers the robbery would present].)
Faced with an incomplete record, we will follow our approach in Arias,
remanding to permit the trial court to consider on a fuller record of conviction
whether the trial evidence was sufficient to support the jury’s felony-murder
special circumstance findings consistent with Banks and Clark. (Arias,
supra, 66 Cal.App.5th at p. 1006, review granted; see Secrease, supra, 63
Cal.App.5th at pp. 264−265, review granted.) Although it appears the
original trial transcripts are no longer available from the superior court (ante,
fn. 2), they might be available from a different source. In keeping with its
12 Thomas sought to introduce propensity evidence to show that McInnis
was likely the actual killer. But this evidence was excluded at trial, and
there is no indication that Thomas was aware of any such propensity to kill
at the time of Karl’s murder.
16
narrow role at the prima facie stage, the court must consult the available
record of conviction solely to see if it refutes Thomas’s prima facie showing.
(Lewis, supra, 11 Cal.5th at p. 971; Wilson, supra, 69 Cal.App.5th at p. 687
[trial court directed to consider on remand whether “the record of conviction
unequivocally negates [defendant’s] contentions, rendering him unable to
meet his burden”].) If sufficient evidence of the Banks/Clark criteria exists
on the available record, the petition must be denied because the validated
felony murder special circumstance findings will preclude Thomas from
making a prima facie case. But if sufficient evidence does not exist, or if
there is no fuller record than we now have before us, an order to show cause
must issue. (Arias, at p. 1006; see Harris, supra, 60 Cal.App.5th at
pp. 959−960 [where record of conviction did not establish sufficient evidence
under Banks and Clark, trial court was required to issue an order to show
cause].)13
13 On remand, “the trial court may take into account anything in the trial
record the parties bring to its attention,[ ] but must disregard the
prosecution’s theories that [Thomas] was the [stabber] or acted with intent to
kill.” (Secrease, supra, 63 Cal.App.5th at p. 264, review granted, fn. omitted.)
Because the jury rejected the first theory and did not necessarily adopt the
second, these alternative theories “are not relevant at this stage” because
they are not “irrefutably rebutted by the record of conviction.” (Ibid.) Any
argument that Thomas is liable for felony murder under section 189,
subdivision (e)(2) on the basis that he aided and abetted the murder with
intent to kill “raises contested issues of fact and must be addressed at an
evidentiary hearing under section 1170.95, subdivision (d)(3).” (Secrease, at
p. 265; see fn. 6, ante.)
17
DISPOSITION
The order denying Thomas’s resentencing position is reversed, and the
matter is remanded for a resumption of proceedings under section 1170.95,
subdivision (c) consistent with this opinion.
DATO, J.
WE CONCUR:
HALLER, Acting P. J.
GUERRERO, J.
18