People v. Smith CA4/1

Filed 3/23/22 P. v. Smith CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078320

Plaintiff and Respondent,

v. (Super. Ct. No. SCD137023)

MARQUELL DION SMITH,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County,
John M. Thompson, Judge. Affirmed.
Randall Conner, 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, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys
General, for Plaintiff and Respondent.
 I
INTRODUCTION
Marquell Dion Smith appeals from the summary denial of a petition to

vacate his first degree murder conviction under Penal Code section 1170.95.1
The trial court found Smith was not entitled to relief, as a matter of law,
because the jury that convicted him of murder returned a true finding on a
robbery-murder special-circumstance allegation associated with the murder
charge. The special-circumstance finding meant the jury found that Smith:
(1) was the actual killer; (2) aided and abetted in the commission of the
murder with an intent to kill; or (3) aided and abetted in the commission of
the robbery while acting as a major participant and with reckless indifference
to human life. (§ 190.2, subds. (b)–(d).)
After the trial court denied Smith’s resentencing petition, our court
determined that a true felony-murder special-circumstance finding does not
categorically preclude resentencing under section 1170.95 where, as here, the
true finding was made prior to People v. Banks (2015) 61 Cal.4th 788 (Banks)
and People v. Clark (2016) 63 Cal.4th 522 (Clark)—Supreme Court decisions
that clarified the meaning of the special-circumstances statute. (People v.
Arias (2021) 66 Cal.App.5th 987, review granted September 29, 2021,
S270555 (Arias); People v. Wilson (2021) 69 Cal.App.5th 665, review granted
December 22, 2021, S271604 (Wilson).) In accordance with our recent
precedents, we conclude the trial court erred insofar as it found that the true
robbery-murder special-circumstance finding necessarily precluded
resentencing relief as a matter of law.
Nonetheless, the entire record of conviction before us demonstrates,
beyond a reasonable doubt, that Smith was, at minimum, a major participant

1 Undesignated statutory references are to the Penal Code.
2
in the underlying robbery who acted with reckless indifference to human life,
as those requirements were construed in Banks and Clark. Therefore, Smith
failed to make a prima facie showing of entitlement to resentencing relief.
On this basis, we affirm the order denying Smith’s resentencing petition.
II
BACKGROUND
A
Smith’s Murder Conviction
The following factual background is taken from this court’s opinion in
People v. Smith (Mar. 5, 2004, D035500) [nonpub. opn.] (Smith I).
Between November 7, 1997 and February 18, 1998, Smith and Lazair
Carter committed dozens of armed robberies of commercial establishments in
the San Diego area. (Smith I, supra, D035500.) The crimes were known as
the Tri-Cities robberies. (Ibid.) They differed in their specifics, but typically
entailed two or three African American males wearing masks and gloves,
carrying guns, taking money from a cash register, demanding access to a
safe, and taking money from customers and employees. (Ibid.) Frequently,
the robbers violently hit employees in the head with a gun. (Ibid.) During
one robbery, a store owner named Salim Gappy grabbed a revolver and fired
it several times, causing the robbers to return fire and flee. (Ibid.)
On February 18, 1998, Smith and Carter committed an armed robbery
of a liquor store during which the 19-year old store clerk, Adrian Garmo, was
killed. (Smith I, supra, D035500.) Surveillance videotape “showed Carter
wrestling with the clerk, who was trying to pull off Carter’s … mask. Smith
reached over the counter and pointed a .38 caliber handgun at the clerk.
Garmo was shot and killed by a single gunshot to the chest.” (Ibid.)
According to a prosecution witness, Carter told the witness that the “.38

3
caliber gun was ‘dirty’ and that Smith had been carrying that weapon.”
(Ibid.) Carter reportedly confessed “he had been carrying a .25 caliber gun”
during the fatal robbery. (Ibid.)
On December 20, 1999, a jury found Carter and Smith guilty of the first
degree murder of Adrian Garmo (§ 187, subd. (a)) and, for both defendants,
the jury returned true findings on personal use of a firearm allegations
(§ 12022.5, subd. (a)(1)) and robbery-murder special-circumstance allegations
(§ 190.2, subd. (a)(17)). (Smith I, supra, D035500.) It found the defendants
guilty of the attempted murder of Salim Gappy (§§ 187, 664) and, for both
defendants, it returned true findings on associated personal use of a firearm
allegations (§ 12022.5, subd. (a)(1)). (Ibid.) The defendants were found guilty

of dozens of other crimes arising from the Tri-Cities robberies as well.2
(Ibid.) The trial court sentenced Smith to prison for life without the
possibility of parole, plus 206 years, and it sentenced Carter to prison for life
without the possibility of parole, plus 270 years and 8 months. (Ibid.)
On direct appeal, this court struck a parole revocation fine, but in all
other respects affirmed the judgments. (Smith I, supra, D035500.) The
Supreme Court denied review on May 19, 2004.
B
Senate Bill No. 1437
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437
“to amend the felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is not

2 Smith was found guilty of 8 counts of attempted robbery, 39 counts of
robbery, 15 counts of assault with a firearm, and 12 counts of being a felon in
possession of a firearm, among other crimes. (Smith I, supra, D035500.)
Carter was found guilty of 11 counts of attempted robbery, 57 counts of
robbery, 18 counts of assault with a firearm, and 16 counts of being a felon in
possession of a firearm, among other crimes. (Ibid.)
4
imposed on a person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
Senate Bill No. 1437 effectuated this goal in part by amending section
188, which defines malice, and section 189, which defines the degrees of
murder. (Stats. 2018, ch. 1015, § 3.) The amended version of section 188
states: “Except as stated in subdivision (e) of Section 189, in order to be
convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based solely on his or
her participation in a crime.” (§ 188, subd. (a)(3).) Amended section 189,
subdivision (e), states: “A participant in the perpetration or attempted
perpetration of a felony listed in [section 189] subdivision (a) in which a death
occurs is liable for murder only if one of the following is proven: [¶] (1) The
person was the actual killer. [¶] (2) The person was not the actual killer, but,
with the intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the commission of murder
in the first degree. [¶] [or] (3) The person was a major participant in the
underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (§ 189, subd. (e).)
Senate Bill No. 1437 also enacted section 1170.95, “which creates a
procedure for convicted murderers who could not be convicted under the law
as amended to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th
952, 957 (Lewis).) Under section 1170.95, an offender must file a petition
with the sentencing court averring that: “(1) A complaint, information, or
indictment was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder, murder under the natural and
probable consequences doctrine or other theory under which malice is

5
imputed to a person based solely on that person’s participation in a crime, or
attempted murder under the natural and probable consequences doctrine.
[¶] (2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted
murder. [¶] (3) The petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a)(1)–(3).)
Under section 1170.95, subdivision (b)(1), a resentencing petition must
include “(A) A declaration by the petitioner that the petitioner is eligible for
relief … based on all the requirements of [section 1170.95,] subdivision (a).
[¶] (B) The superior court case number and year of the petitioner’s conviction.
[¶] (C) Whether the petitioner requests the appointment of counsel.”
(§ 1170.95, subd. (b)(1).) “If a petition fails to comply with subdivision (b)(1),
‘the court may deny the petition without prejudice to the filing of another
petition.’ (§ 1170.95, subd. (b)(2).)” (Lewis, supra, 11 Cal.5th at p. 960.)
“Where the petition complies with subdivision (b)’s three requirements,
then the court proceeds to subdivision (c) to assess whether the petitioner has
made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)” (Lewis, supra,
11 Cal.5th at p. 960.) If the trial court determines a prima facie showing for
relief has been made, it issues an order to show cause, and then must hold a
hearing “to determine whether to vacate the murder, attempted murder, or
manslaughter conviction and to recall the sentence and resentence the
petitioner on any remaining counts in the same manner as if the petitioner
had not previously been sentenced, provided that the new sentence, if any, is
not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).)

6
 At the hearing, the burden is “on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is guilty of murder or attempted murder
under California law as amended by the changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (d)(3).) The court “may consider
evidence previously admitted at any prior hearing or trial that is admissible
under current law, including witness testimony, stipulated evidence, and
matters judicially noticed,” as well as “the procedural history of the case
recited in any prior appellate opinion.” (Ibid.) Additionally, the parties may
“offer new or additional evidence to meet their respective burdens.” (Ibid.)
C
Smith’s Resentencing Petition
On October 7, 2019, Smith filed a pro per petition to vacate his murder
conviction and to be resentenced under section 1170.95.
On December 13, 2019, the People, represented by the district attorney,
filed a motion to deny Smith’s resentencing petition. The People argued the
petition should be denied because Smith failed to make a prima facie showing
of eligibility for relief under section 1170.95. According to the People, the
evidence from trial showed Smith was the actual killer. Further, the People
argued the robbery-murder special-circumstance finding meant the jury
necessarily found that Smith, at minimum, aided and abetted in the
commission of the robbery while acting as a major participant and with
reckless indifference to human life. The People asserted that under either
scenario, Smith could still be convicted of murder under amended
sections 188 and 189; therefore, he was not entitled to resentencing.
On January 13, 2020, Smith filed an amended resentencing petition.
In the amended petition, Smith placed checkmarks next to the following
preprinted statements: “1. A complaint, information, or indictment was filed

7
against me that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine. [¶]
2a. At trial, I was convicted of 1st or 2nd degree murder pursuant to the
felony murder rule or the natural and probable consequences doctrine; … [¶]
[and] 3. I could not now be convicted of 1st or 2nd degree murder because of
changes made to Penal Code § § [sic] 188 and 189, effective January 1, 2019.”
Together with the amended petition, Smith filed a 23-page statement of facts
purporting to summarize his murder trial and the facts giving rise to his
convictions.
On June 2, 2020, the trial court appointed legal counsel for Smith.
With the assistance of appointed counsel, Smith filed a reply brief in support
of his amended resentencing petition.
On November 4, 2020, the trial court summarily denied Smith’s
amended resentencing petition without issuing an order to show cause.
Relying on People v. Gomez (2020) 52 Cal.App.5th 1, review granted October
14, 2020, S264033 (Gomez), the court determined the jury’s true finding on
the robbery-murder special-circumstance allegation precluded resentencing
relief as a matter of law.
III
DISCUSSION
A
Standard of Review
“Because we are tasked with applying the section 1170.95,
subdivision (c) standard governing prima facie entitlement to relief [citation],
our review is de novo. [Citation.] As with any case involving statutory
interpretation, our primary goal is to ascertain and effectuate the lawmakers’
intent. [Citation.] [¶] In applying the de novo standard, we accept the

8
pleaded facts as true [citation], but evaluate those facts in light of facts
readily ascertainable from the record of conviction,” including our opinion in
Smith I, supra, D035500. (People v. Secrease (2021) 63 Cal.App.5th 231, 244
(Secrease), review granted June 30, 2021, S268862; see also Lewis, supra, 11
Cal.5th at p. 972 [noting that appellate opinions “are generally considered to
be part of the record of conviction,” but cautioning that “the probative value
of an appellate opinion is case-specific, and ‘it is certainly correct that an
appellate opinion might not supply all answers’ ”].)
B
A True Felony-Murder Special-Circumstance Finding Made Prior to
Banks and Clark Does Not Categorically Preclude Resentencing

The issue presented in this appeal is whether the trial court erred in
summarily denying Smith’s resentencing petition after finding that he failed
to make a prima facie showing of entitlement to relief under section 1170.95.
The People urge us to affirm the court’s order on grounds that the
convicting jury found true a robbery-murder special-circumstance allegation
associated with Smith’s murder conviction. In order to reach a true felony-
murder special-circumstance finding, a jury must find that a defendant was
the actual killer, aided and abetted in the commission of the murder with an
intent to kill, or aided and abetted in the commission of the felony while
acting as a major participant and with reckless indifference to human life.
(§ 190, subds. (b)–(d).) Because these requirements are identical to the felony
murder requirements under the amended version of section 189, subdivision
(e), the People claim Smith cannot prove one of the elements necessary to
obtain resentencing—to wit, that he “could not presently be convicted of
murder or attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a)(3).)

9
 Smith argues the robbery-murder special-circumstance finding did not
categorically bar him from making a prima facie showing of entitlement to
relief under section 1170.95. He notes the jury returned its true special-
circumstance finding in 1999, before Banks, supra, 61 Cal.4th 788, and Clark,
supra, 63 Cal.4th 522. In those decisions, the Supreme Court “clarified the
meaning” of the special-circumstance statute (§ 190.2). (In re Scoggins (2020)
9 Cal.5th 667, 671.)
As we will explain, we agree with Smith that a pre-Banks and Clark
felony-murder special-circumstance finding, standing alone, does not
necessarily preclude a defendant from obtaining resentencing relief under
section 1170.95.
1
Banks and Clark
The special-circumstance statute sets forth a list of “crimes deemed
sufficiently reprehensible to warrant possible punishment by death” or life
imprisonment without the possibility of parole (LWOP). (Banks, supra, 61
Cal.4th at p. 797, citing § 190.2, subd. (a).) It “extends death [or LWOP]
eligibility not only to killers, but also to certain aiders and abettors of first
degree murder.” (Ibid., citing § 190.2, subds. (c), (d).) In the case of first
degree felony murder, it states that a person who is not the actual killer may
nonetheless be subject to the punishment of death or LWOP if the person,
“with reckless indifference to human life and as a major participant,” aids
and abets the crime resulting in the death of a person or persons. (§ 190.2,
subd. (d).) “The statute thus imposes both a special actus reus requirement,
major participation in the crime, and a specific mens rea requirement,
reckless indifference to human life.” (Banks, at p. 798.)

10
 Banks considered and applied both the actus reus (major participant)
and the mens rea (reckless indifference) requirements, but it focused its
attention primarily on the actus reus requirement. It identified the following
factors as relevant in determining whether a defendant was a major
participant in a crime: what role the defendant had in planning the criminal
enterprise that led to one or more deaths; what role the defendant had in
supplying or using lethal weapons; what awareness the defendant had of
particular dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants; and whether the defendant
was present at the scene of the killing, in a position to facilitate or prevent
the actual murder, or played a particular role in the death. (Banks, supra, 61
Cal.4th at p. 803.) As the Supreme Court explained, “[n]o one of these
considerations is necessary, nor is any one of them necessarily sufficient. All
may be weighed in determining the ultimate question, whether the
defendant’s participation ‘in criminal activities known to carry a grave risk of
death’ [citation] was sufficiently significant to be considered ‘major.’ ” (Ibid.)
Clark addressed the mens rea requirement of the special-circumstance
statute. The mens rea requirement has “subjective and objective elements.”
(Clark, supra, 63 Cal.4th at p. 617.) “The subjective element is the
defendant’s conscious disregard of risks known to him or her,” while the
objective element considers “what ‘a law-abiding person would observe in the
actor’s situation.’ ” (Ibid.) Clark identified the following factors, many of
which overlap with the Banks factors, as pertinent to whether a defendant
acted with reckless indifference to human life: the defendant’s knowledge
that weapons would be used and/or his personal use of weapons; the
defendant’s physical presence at the scene and his opportunity to restrain the
killer or aid the victim; the duration of the felony; the defendant’s knowledge

11
of his accomplice’s propensity to kill; and the defendant’s efforts to minimize
the risk of violence in the commission of the felony. (Id. at pp. 618–623.)
2
Application of Banks and Clark in Section 1170.95 Proceedings
“In the years immediately following the decisions in Banks and Clark,
courts applied the standards enunciated in those cases in the setting of
habeas corpus [citation], and in section 1170.95 resentencing proceedings
that had been preceded by a successful collateral attack on a felony-murder
special-circumstance finding based on Banks and Clark [citation].” (Secrease,
supra, 63 Cal.App.5th at p. 252, review granted.) Since then, the Banks and
Clark standards have been considered in another context—in section 1170.95
resentencing proceedings that were not preceded by a successful collateral
attack on a felony-murder special-circumstance finding. Within this context,
the Courts of Appeal are divided on whether a pre-Banks and Clark felony-
murder special-circumstance finding categorically bars a defendant from
making a prima facie showing that he or she is entitled to resentencing relief.
“[S]ome courts now hold a section 1170.95 petitioner must always
mount a successful collateral attack on a prior felony-murder special-
circumstance finding against him—no matter when it was made—and until
he does so, he cannot plead a prima facie case under section 1170.95,

12
subdivision (c) as a matter of law.”3 (Secrease, supra, 63 Cal.App.5th at
p. 252, review granted.) “The courts so holding point out that major
participation and reckless disregard of human life have always been required
elements of a special circumstance finding under section 190.2,
subdivisions (a)(17) and (d). And because revisiting those issues in a section
1170.95 proceeding, ‘ “in effect,” ’ amounts to an attack on a valid special
circumstance finding, these courts take the view that a defendant in [Smith’s]
position must first invalidate the special circumstance finding before he may
seek section 1170.95 relief. [Citations.] In this view, it is not the changes to
sections 188 and 189 that potentially render such a defendant’s murder
conviction invalid under current law; it is the Banks and Clark decisions that
have that effect, which is why the remedy of habeas corpus must be sought in
the first instance.” (Id. at pp. 252–253.)
“Other courts do not impose a requirement that a section 1170.95
petitioner who seeks resentencing in the face of a prior jury finding under
section 190.2, subdivision (a)(17) must first obtain habeas relief, and hold
that he may opt to pursue relief by attacking his murder conviction—not his
special circumstance finding—on the ground that, under current law as

3 See Gomez, supra, 52 Cal.App.5th at p. 17, review granted; People v.
Galvan (2020) 52 Cal.App.5th 1134, 1142, review granted October 14, 2020,
S264284; 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 (Murillo); People v. Nunez (2020) 57 Cal.App.5th 78, 95–
96, review granted January 13, 2021, S265918 (Nunez); cf. People v.
Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419–420 [rejecting claimed
entitlement to § 1170.95 relief raised in appeal of murder conviction on the
ground jury’s special-circumstance finding rendered appellant ineligible for
resentencing as a matter of law].)
13
revised by Senate Bill 1437, he could no longer be convicted of murder.”4
(Secrease, supra, 63 Cal.App.5th at p. 253, review granted.) “According to
these courts, if the petitioner obtains vacatur of a prior special circumstance
finding in a section 1170.95 proceeding, that is because the statute expressly
requires it as a ‘collateral consequence’ of the resentencing relief to which a
successful section 1170.95 petitioner is entitled. [Citation.] [¶] These courts
see no basis to graft what is, in effect, an exhaustion requirement onto
section 1170.95, thereby forcing petitioners with felony-murder special-
circumstances findings to obtain habeas relief first, before seeking section
1170.95 resentencing. In their view, because Banks and Clark ‘construed
section 190.2, subdivision (d) in a significantly different, and narrower
manner than courts had previously construed the statute’ [citation], it is not
appropriate to give a pre-Banks and Clark felony-murder special-
circumstance finding preclusive effect. As [one] panel … explained, ‘[i]t
would be inappropriate to “treat[ ] [such] findings as if they resolved key
disputed facts” when the jury did not have the same questions before them.’ ”
(Id., at pp. 253–254.)

4 See People v. Torres (2020) 46 Cal.App.5th 1168, 1179–1180, abrogated
on another ground in Lewis, supra, 11 Cal.5th at pp. 961–970; People v.
Smith (2020) 49 Cal.App.5th 85, 93–94, review granted July 22, 2020,
S262835 (Smith); 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); Secrease,
supra, 63 Cal.App.5th at pp. 244–245, review granted; People v. Gonzalez
(2021) 65 Cal.App.5th 420, 430–431, review granted August 18, 2021,
S269792; Arias, supra, 66 Cal.App.5th at pp. 1003–1004, review granted;
Wilson, supra, 69 Cal.App.5th at pp. 677–678, review granted; People v. Ervin
(2021) 72 Cal.App.5th 90, 95; People v. Mejorado (2022) 73 Cal.App.5th 562,
570–571.
14
 3
A Collateral Attack on a True Felony-Murder Special-
Circumstance Finding Is Not a Prerequisite to Relief Under Section 1170.95

The Courts of Appeal have subjected the issue at hand to vigorous
debate and devoted countless pages of discussion to the subject. The issue is
currently under review by the Supreme Court as well, so we will soon have
clarity one way or the other. (People v. Strong, review granted Mar. 10, 2021,
S266606 [“This case presents the following issue: Does a felony-murder
special circumstance finding (Pen. Code, § 190.2, subd. (a)(17)) made before
People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th
522 preclude a defendant from making a prima facie showing of eligibility for
relief under Penal Code section 1170.95?”].) Given this context, we need not
add to the conversation with further extensive argument or analysis.
Rather, it will suffice for us to follow the path our court has already
charted in Arias, supra, 66 Cal.App.5th 987, review granted, and Wilson,
supra, 69 Cal.App.5th 665, review granted, decisions we issued subsequent to
the trial court order at issue here. In those decisions, we concluded pre-
Banks and Clark true felony-murder special-circumstance findings do not
categorically preclude defendants from obtaining resentencing relief under
section 1170.95 as a matter of law. (Arias, at pp. 1003–1004; Wilson, at
pp. 677–678; but see Gomez, supra, 52 Cal.App.5th at p. 17, review granted.)
In accordance with these precedents, we conclude the trial court erred
when it summarily denied Smith’s resentencing petition based solely on the
existence of a true felony-murder special-circumstance finding.

15
 C
Smith’s Special-Circumstance Finding Remains Valid Under Banks and
Clark, Thus Precluding a Prima Facie Showing of Entitlement to Relief

Although a pre-Banks and Clark felony-murder special-circumstance
finding does not automatically preclude resentencing relief, that fact alone
does not require us to reverse and remand the matter for the trial court to
issue an order to show cause. Rather, for the reasons stated in Secrease, we
believe we must conduct an individualized review of Smith’s record of
conviction to determine whether his special-circumstance finding satisfies the
Banks and Clark standards. As the Secrease court explained:
The most natural reading of section 1170.95 … is that where a
petitioner facing a felony-murder special-circumstance finding
has never been afforded a Banks and Clark sufficiency-of-the-
evidence review—by any court, at the trial or appellate level—
section 1170.95 courts have an obligation to undertake such an
analysis at the prima facie entitlement-to-relief stage of a
resentencing proceeding under subdivision (c) of the statute. And
on appeal from the denial of a section 1170.95 petition for failure
to state a prima facie case for relief in such a situation, we have
an obligation to do so as well.

(Secrease, supra, 63 Cal.App.5th at p. 255, review granted; see Arias, supra,
66 Cal.App.5th at pp. 1004–1006, review granted [reviewing record of
conviction to determine whether true robbery-murder special-circumstance
finding satisfied Banks and Clark standards]; accord Wilson, supra, 69
Cal.App.5th at pp. 677–678, review granted [recognizing an appellate court
may decide whether a petitioner is ineligible for resentencing relief as a

16
matter of law, but declining to conduct the analysis because the parties did

not brief the petitioner’s ineligibility in their appellate briefing].)5
Our review of the record of conviction shows that the true robbery-
murder special-circumstance finding clearly satisfied the Banks and Clark
standards. As discussed in Smith I, supra, D035500, Smith was physically
present at the liquor store where Garmo was shot and killed. Indeed, he
personally “reached over the counter and pointed a .38 caliber handgun” at
Garmo while Smith and Garmo were wrestling one another. (Smith I, supra,
D035500.) Smith surely was aware of the risk of danger associated with the
robbery, given that he had already perpetrated numerous robberies during
which he and his accomplices committed violent acts against others. One
prior robbery even ended with an exchange of gunfire—an incident for which
Smith was found guilty of attempted murder and found to have personally
used a firearm. Further, the jury found Smith personally used a firearm
during the robbery that left Garmo dead. Given these circumstances, which

5 See also Harris, supra, 60 Cal.App.5th at p. 958, review granted [courts
can determine resentencing eligibility “after reviewing the available record of
conviction in light of the Banks and Clark factors”]; Nunez, supra, 57
Cal.App.5th at pp. 97–98, review granted (conc. opn. of Ashmann-Gerst, J.)
[true special-circumstance finding precluded resentencing because it satisfied
Banks and Clark]; accord Murillo, supra, 54 Cal.App.5th at pp. 169–173,
review granted [resentencing was properly denied because “record of
conviction establishe[d] as a matter of law that the jury’s special
circumstance finding [was] valid under the standards established by Banks
and Clark”]; People v. Law (2020) 48 Cal.App.5th 811, 825–826, review
granted July 8, 2020, S262490 [resentencing denial based solely on pre-Banks
and Clark special-circumstance finding was error, but “harmless” because
“the record” showed defendant was a major participant who acted with
reckless indifference]; but see Smith, supra, 49 Cal.App.5th at pp. 95–96,
review granted [error for appellate court to “conduct [its] own assessment of
the trial evidence to determine whether [defendant] was a major participant
and acted with reckless indifference to human life”].)
17
are shown in the record of conviction, there can be no reasonable doubt that
Smith, at the very least, was a major participant who acted with reckless
indifference to human life (as those terms were clarified in Banks and Clark).
Smith argues that reversal and remand is required because the record
of conviction does not conclusively establish that he was the actual killer.
Even if we accept Smith’s claim that he was not the actual killer, it does not
change the outcome. Under current law, a person may still be convicted of
felony murder even if the person was not the actual killer, so long as he or
she aided and abetted in the commission of first degree murder with an
intent to kill, or was a major participant in the underlying felony and acted
with reckless indifference to human life. (§ 189, subd. (e)(2)–(3).)
For all the reasons previously discussed—namely, the string of violent
acts perpetrated by Smith and his accomplices during prior robberies and
robbery attempts, the exchange of gunfire that erupted during one of these
prior robberies, Smith’s physical presence at the murder scene, the fact Smith
pointed a firearm directly at the murder victim, and the jury’s finding that
Smith personally used a firearm during the murder and several other violent
crimes—the record of conviction conclusively establishes that Smith was, at
minimum, a major participant in the underlying robbery and that he acted
with reckless indifference to human life. Thus, Smith could not—and did
not—make a prima facie showing of entitlement to resentencing relief.

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 IV
DISPOSITION
The order denying the resentencing petition is affirmed.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

HALLER, J.

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