People v. Daniels CA2/2 ( 2021 )

Filed 12/23/21 P. v. Daniels CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B308995
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA347305)
v.
ORDER MODIFYING
BRANDON DANIELS, OPINION AND DENYING
PETITION FOR REHEARING
Defendant and Appellant.
NO CHANGE IN JUDGMENT
THE COURT:*
It is ordered that that the opinion filed herein on
December 16, 2021, be modified as follows:
The four-sentence passage in the second paragraph at page
14 and continuing to page 15 beginning with “Indeed, defendant
cites authority . . .” through and including the sentence
“Defendant made no such effort to make a showing in the trial
court” is deleted.
There is no change in the judgment.
The petition for rehearing filed by appellant on
December 17, 2021, is denied.
____________________________________________________________
*ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
2
Filed 12/16/21 P. v. Daniels CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B308995
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA347305)
v.
BRANDON DANIELS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Craig J. Mitchell, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Brandon Daniels (defendant)
appeals from the denial of his petition for resentencing pursuant
to Penal Code section 1170.95.1 He contends that in his petition
he made a prima facie showing of eligibility for relief, which
triggered the trial court’s obligation to issue an order to show
cause (OSC) and conduct an evidentiary hearing. We disagree
and affirm the order denying the petition.
BACKGROUND
In 2013, defendant was convicted of first degree murder
(§ 187, subd. (a); count 1), attempted second degree robbery
(§§ 664/211; count 2), and second degree commercial burglary
(§ 459; count 3).2 As to count 1, the jury found true the robbery
special-circumstance allegation (§ 190.2, subd. (a)(17)). As to
counts 1 and 2, the jury found true the allegation that a principal
personally and intentionally discharged a firearm causing great
bodily injury and death (§ 12022.53, subds. (d) & (e)); and as to
all counts, the jury found true the gang enhancement of section
186.22, subdivision (b). On May 24, 2013, defendant was
sentenced to prison for life without the possibility of parole plus a
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 At defendant’s request we take judicial notice of our
nonpublished opinion affirming the judgment in People v. Daniels
(Sept. 29, 2014, B249088) (Daniels I). Our summary is drawn
from the facts set forth in that opinion. We granted respondent’s
request for judicial notice of portions of the reporter’s transcripts
supporting facts summarized in the opinion and respondent’s
brief.
2
consecutive term of 25 years to life. We affirmed the judgment in
Daniels I, supra, B249088.
The evidence at trial showed that in 2008, defendant and
three fellow gang members (Leon Banks, David Gardiner, and
Lovie Troy Matthews) participated in the attempted robbery of a
marijuana dispensary during which an unarmed security guard
was killed. Matthews was the getaway driver. A GPS monitor
that Matthews wore showed that he remained few blocks from
the dispensary for about 30 minutes near the time of the
attempted robbery. Defendant, Banks, and Gardiner went to the
dispensary where Banks entered a secure anteroom or “man
trap,” with a medical marijuana authorization. (Daniels I, supra,
B249088.) Banks and another of the robbers then entered the
lobby with handguns drawn, while a third kicked down the door
to the lobby. A dispensary employee who was assisting a patient
in the upstairs loft saw defendant jump over the counter in the
lobby and run upstairs where he pointed a gun at the employee
and asked, “Where’s the shit at?” (Ibid.) The employee told him
it was behind the bar and to take whatever he wanted.
Meanwhile Banks forced two other employees to the ground after
he said to one of them, “If you keep looking at me, I will kill you.”
(Ibid.) Banks placed his knee on that employee’s back and was
attempting to put a zip tie on his wrist when gunshots rang out.
Banks said, “Shit, we got to go, we got to go,” and the employee
saw three gunmen struggling to push their way out the front door
from the anteroom. Since the security guard prevented their exit
from the outside, the gunmen reentered the lobby and one of
them shot through a glass window at the side of the anteroom.
(Ibid.) Since the security guard prevented their exit from the
outside, the gunmen reentered the lobby and one of them shot
3
through a glass window at the side of the anteroom. The three
gunmen continued to push on the door until Banks was able to
put his arm through the opening and shoot the security guard.
As the guard fell backwards Banks stepped from behind the door
and shot the guard in the head. After the gunmen were outside,
witnesses heard additional gunshots. Defendant fled the area
with Matthews and Gardiner in Banks’s SUV and later hid from
the police. (Ibid.)
Defendant’s left palm print was found on the inside of the
security door to the dispensary. Two handguns, cartridge
casings, zip ties, and bullet fragments were recovered outside the
dispensary. Zip ties and a bullet were found in the lobby.
Investigators also found inside the dispensary a medical
marijuana authorization in Banks’s name with his fingerprint on
it. A handgun was found on the ground near the victim’s
outstretched arm, and a second handgun was found on South
Orange Drive.3 The cartridge cases were determined to have
been fired from the second gun. (Daniels I, supra, B249088.)
Defendant gave a statement to the investigating detective,
admitting that Matthews dropped him, Banks and Gardiner at
the marijuana dispensary that day so they could “score some
weed.”4 (Daniels I, supra, B249088.) Defendant knew that
Banks would use a piece of paper to get into the dispensary, and
once inside defendant went upstairs while Gardiner remained at
the entrance with the security guard. When defendant heard a
3 Banks was detained at a location near South Orange Drive,
less than two blocks from the dispensary. (Daniels I, supra,
B249088.)
4 The detective testified that the word “score” was slang for
“steal.” (Daniels I, supra, B249088.)
4
gunshot he ran downstairs, talked to Banks, and then saw
Gardiner in the lobby. The three of them ran to the exit,
attempted to open the door by pushing on it, and then defendant
heard the security guard call for help. Defendant claimed that
the security guard reached in and fired a gun and Banks fired
back in self-defense. The three of them then ran outside and as
defendant ran from the dispensary, he called Matthews, who
picked them up in Banks’s SUV before they drove away. (Ibid.)
Defendant, Gardiner, and Matthews were members of the
Rolling 30’s criminal street gang. Banks was a member of the
Rolling 60’s criminal street gang. A gang expert opined that the
crimes were committed for the benefit of and in association with
the Rolling 30’s gang. (Daniels I, supra, B249088.)
Defendant testified that he was addicted to PCP, drank
alcohol daily, smoked six to seven grams of marijuana daily, and
consumed cocaine and ecstasy on the weekends. He sold drugs to
support his habit, and although he was a gang member, he
denied selling them for the gang’s benefit or giving the gang a cut
of his proceeds. Defendant smoked marijuana the night before
the robbery and woke up high the next morning. When he woke
up he drank two 24-ounce cans of malt liquor and smoked more
marijuana.5 He then went to his “drug partner” Matthews’s
home where he met Banks, whom he knew only as Matthews’s
friend. Defendant denied telling the detective that he knew
5 An addiction specialist testified that defendant had a
substance dependence or addiction problem, and that such people
may develop a tolerance to drugs over time. He opined that such
a person who ingested the amount of drugs defendant used would
not necessarily be impaired and “might still be relatively
functional.” (Daniels I, supra, B249088.)
5
Banks was a Rolling 60’s gang member. (Daniels I, supra,
B249088.)
Defendant claimed there had been no discussion of a
robbery and that he did not see any guns or zip ties at
Matthews’s home. Defendant admitted that he had once been
“busted” for possessing a gun but claimed that it was for
protection when there was animosity between the Rolling 30’s
and Rolling 60’s gangs, and that at the time of the robbery he did
not regularly carry a gun. Defendant had $30 or $40 to “get
some” marijuana and mentioned a “pot shop.” (Daniels I, supra,
B249088.) He had heard some dispensaries would sell the
marijuana without requiring a card. He denied that he intended
to rob the dispensary. (Ibid.)
Matthews drove Banks’s SUV to pick up Gardiner and then
dropped off defendant, Gardiner and Banks in front of the
dispensary. Banks showed the medical authorization, and the
three were allowed to go inside. Defendant testified that Banks
was allowed to go to the back while he and Gardiner remained in
the front of the dispensary with the security guard. When Banks
did not return after a few minutes, defendant went to the back
and upstairs. Defendant denied seeing Gardiner hold a gun to
the guard’s head or seeing anyone tied up. From upstairs,
defendant heard a gunshot and then saw two people who had
been playing chess duck down. Defendant claimed he was
“shellshocked” and went back downstairs. (Daniels I, supra,
B249088.) He asked Banks if he heard the gunshot, and said,
“Man, let’s go.” (Ibid.) Defendant walked to the lobby and saw
that the guard was blocking the way out, so defendant, Banks
and Gardiner pushed on the door. Defendant claimed that the
guard reached in and started shooting, and that he “almost shot
6
me in my foot.” (Ibid.) Defendant denied he was armed and said
he did not see Banks shoot the security guard in the head.
Defendant ran away when he did not see Matthews and met up
with him after what “seemed like 10 minutes.” (Ibid.)
Defendant denied he intended to commit a robbery and
claimed he did not have any stolen money or marijuana. When
he saw a report on television that he was wanted by the police in
connection with the crimes, he left the neighborhood. Defendant
was later arrested at his girlfriend’s house where he was found
under a bed. Defendant claimed not to have been hiding but
looking for a pacifier. (Daniels I, supra, B249088.)
In April 2019, appellant filed a petition for resentencing
pursuant to section 1170.95. The trial court appointed counsel
and received briefing from the prosecutor and defendant’s
counsel.6 On November 4, 2020, with defendant present in court
with counsel, a petition review hearing pursuant to section
1170.95, subdivision (a), was held. The trial court heard
argument from both counsel before the petition was denied.
Defendant filed a timely notice of appeal from the court’s
order.
6 The record in this appeal contains no brief from petitioner.
The only brief included in the record is the “People’s
Supplemental Response to Petition for Resentencing Pursuant to
Penal Code Section 1170.95,” where it is represented that the
People filed their initial response on or about June 21, 2019, and
that defendant filed a “supplemental” brief in support of his
petition on or about July 21, 2020. At a hearing in January 2020,
the prosecutor told the court that defendant’s counsel had filed a
reply.
7
DISCUSSION
Defendant contends that because his petition alleged the
statutory requirements for relief under section 1170.95,
subdivision (a), he established a prima facie case. He claims that
his showing triggered the trial court’s obligation to issue an OSC
and conduct an evidentiary hearing at which the parties could
offer new or additional evidence relevant to the issue of
defendant’s eligibility for relief and in which the prosecutor
would have the burden to show that defendant acted with
reckless indifference to human life as a major participant as
those terms were clarified in People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).7
7 Effective January 1, 2019, the Legislature amended the
laws pertaining to felony murder or murder under the natural
and probable consequences doctrine, “‘to ensure that murder
liability is not 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, § l, subd. (f).)” (People v.
Gentile (2020) 10 Cal.5th 830, 842.) The Legislature also added
section 1170.95, to give defendants previously convicted of
murder under those theories a procedure to retroactively seek
vacatur and resentencing if they could not be convicted under the
amended laws. A petition for relief must aver: (1) “[a] complaint,
information, or indictment was filed against [him] that allowed
the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine,”
(2) he “was convicted of first degree or second degree murder
following a trial,” and (3) he “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); see Lewis,
supra, 11 Cal.5th at pp. 959-960.)
8
The trial court was not required to issue an OSC, as
defendant contends, simply because his petition alleged the
statutory requirements under subdivision (a) of section 1170.95.
Instead, the court was required to proceed as set forth in
subdivision (c) (People v. Lewis (2021) 11 Cal.5th 952, 960
(Lewis); see § 1170.95, subds. (b) & (c)), which requires that upon
the filing of a petition alleging all the required averments, the
trial court must appoint counsel if requested and entertain
briefing, regardless of whether the record of conviction
unequivocally demonstrates that the defendant is not entitled to
relief. (Lewis, supra, at p. 964.) Then the court may review the
record of conviction to aid itself in assessing whether a petitioner
has made a prima facie showing of eligibility for relief under the
statute. (Id. at pp. 957, 971-972.)8 Only after the court
determines that a petitioner has made a prima facie showing
must it then issue an OSC and schedule a hearing at which the
prosecution bears the burden of proving beyond a reasonable
doubt that the petitioner is ineligible for section 1170.95 relief.
(§ 1170.95, subd. (d)(1) & (3).)
Although the trial court may not engage in factfinding,
weighing of the evidence, or exercise its discretion in determining
whether the defendant has made a prima facie showing, the court
may consider the record of conviction, including the court’s own
documents and appellate opinion, in order to distinguish
petitions with potential merit from those that are not. (Lewis,
8 The Supreme Court has declined to express a view as to
whether a petitioner is entitled to present new or additional
evidence at the prima facie stage pursuant to subdivision (c) of
section 1170.95. (See Lewis, supra, 11 Cal.5th at p. 974, fn. 7.)
Defendant does not claim that he attempted to do so.
9
supra, 11 Cal.5th at pp. 970-972.) If the record of conviction
contains established facts refuting the truth of the petition’s
allegations, the court may find no prima facie showing has been
made and deny the petition without issuing an OSC. (Id. at
pp. 970-971.) Here, the trial court followed the procedure set
forth by section 1170.95, subdivision (c) by appointing counsel
and entertaining the parties’ briefs. The court then conducted a
hearing so counsel could argue. The court found defendant was
ineligible for relief as a matter of law due to the true finding of
the felony-murder special circumstance. Defense counsel asked
for an evidentiary hearing to show that defendant did not act
with reckless indifference. The court declined the request and
denied the petition. The trial court did not err.
Defendant’s petition alleged that defendant was convicted
of first degree felony murder but could not now be convicted
because of the changes to section 189, effective January 1, 2019,
since he was not a major participant in the crime nor acted with
reckless indifference to human life. The petition also alleged that
there had been a prior determination by a court or jury that he
was not a major participant in the crime or did not act with
reckless indifference to human life under section 190.2. As the
trial court had appointed counsel and entertained briefing, it was
entitled to look to the record of conviction to determine the truth
of those allegations. (Lewis, supra, 11 Cal.5th at p. 971.) Since
defendant’s jury necessarily found that defendant was a major
participant in the underlying felony and acted with reckless
indifference to human life when it found true the special
circumstance alleged under section 190.2, subdivision (a)(17), the
allegations in the petition were untrue. Even as amended section
189 authorizes a murder conviction based on a theory of vicarious
10
liability if the defendant “was a major participant in the
underlying felony and acted with reckless indifference to human
life.” (§ 189, subd. (e)(3).) Thus it is untrue that he “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)(3), italics added.)
Defendant argues that the jury’s special circumstance
finding does not preclude him from relief under section 1170.95
because he was convicted before the publication of Banks, supra,
61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, in which the
California Supreme Court clarified factors to help determine
whether an aider and abettor was major participant who acted
with reckless indifference to human life.
In Banks, the California Supreme Court explained that a
“major participant” in a robbery is someone whose “personal
involvement” is “substantial” (Banks, supra, 61 Cal.4th at p. 802);
such a participant “need not be the ringleader” (People v.
Williams (2015) 61 Cal.4th 1244, 1281), but his involvement must
be “greater than the actions of an ordinary aider and abettor”
(Banks, at p. 802). The court held that the totality of the
circumstances should be examined when evaluating the extent of
participation and suggested several relevant but not dispositive
factors to consider: (1) the defendant/aider and abettor’s role in
planning the robbery; (2) his role in supplying or using lethal
weapons; (3) his awareness of the “particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants”; (4) his presence at the scene of
the killing and thus whether he was “in a position to facilitate or
prevent the actual murder”; and (5) his actions after the use of
11
lethal force. (Banks, at p. 803; see Clark, supra, 63 Cal.4th at
p. 611.)
A defendant acts with reckless indifference to human life
when he “‘“knowingly engag[es] in criminal activities known to
carry a grave risk of death.”’” (Banks, supra, 61 Cal.4th at p. 801,
quoting People v. Estrada (1995) 11 Cal.4th 568, 577, quoting
Tison v. Arizona (1987) 481 U.S. 137, 157.) This standard “has a
subjective and an objective” component. (In re Scoggins (2020) 9
Cal.5th 667, 677 (Scoggins).) To satisfy the subjective
component, “‘[t]he defendant must be aware of and willingly
involved in the violent manner in which the [underlying felony] is
committed,’ and . . . must consciously disregard ‘the significant
risk of death his or her actions create.’” (Ibid., quoting Banks, at
p. 801.) The key is whether the defendant evinces “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, supra, 63 Cal.4th at p. 617.)
To satisfy the objective component, the risk of death “‘“must be of
such a nature and degree that, considering the nature and
purpose of the [defendant’s] conduct and the circumstances
known to him . . . , its disregard involves a gross deviation from
the standard of conduct that a law-abiding person would observe
in the [defendant’s] situation.”’” (Scoggins, at p. 677, quoting
Clark, at p. 617.)
Our Supreme Court has identified a number of
considerations bearing on whether a defendant has acted with
reckless indifference to human life. “No one of these
considerations is necessary, nor is any one of them necessarily
sufficient” (Banks, supra, 61 Cal.4th at p. 803); what matters is
the totality of the considerations (Scoggins, supra, 9 Cal.5th at
12
p. 677). The considerations are: (1) “Did the defendant use or
know that a gun would be used during the [underlying] felony,”
and, relatedly, “[h]ow many weapons were ultimately used?”; (2)
“Was the defendant physically present at the crime,” such that he
had “the opportunity to restrain the crime or aid the victim?”; (3)
“What was the duration of the interaction between the
perpetrators of the [underlying] felony and the victims?”; (4)
“What was the defendant’s knowledge of his . . . confederate’s
propensity for violence or likelihood of using lethal force?”; and
(5) “What efforts did the defendant make to minimize the risks of
violence during the felony?” (Ibid., citing Clark, supra, 63
Cal.4th at pp. 618-623.)
Defendant contends that because no court has considered
whether he was a major participant who acted with reckless
indifference under the clarified Banks and Clark factors, the trial
court could not have found as a matter of law that he was
ineligible for resentencing. As we held in People v. Nunez (2020)
57 Cal.App.5th 78, 92-97 (Nunez), review granted January 13,
2021, S265918, the prior special circumstance finding renders a
defendant ineligible for relief under section 1170.95 as a matter
of law, and “[t]he Banks and Clark decisions provide no basis for
challenging the jury’s factual finding that [defendant] either
intended to kill or was a major participant . . . .” (Accord, People
v. Simmons (2021) 65 Cal.App.5th 739, 746-750, review granted
Sept. 1, 2021, S270048; People v. Jones (2020) 56 Cal.App.5th
474, 479-482, review granted Jan. 27, 2021, S265854; People v.
Allison (2020) 55 Cal.App.5th 449, 457; People v. Gomez (2020) 52
Cal.App.5th 1, 14-17, review granted Oct. 14, 2020, S264033;
People v. Galvan (2020) 52 Cal.App.5th 1134, 1141-1143, review
granted Oct. 14, 2020, S264284.)
13
Defendant disagrees with Nunez, review granted, and the
line of cases cited above. He argues that the decisions reaching
the contrary conclusion make a better argument. (See, e.g.,
People v. Arias (2021) 66 Cal.App.5th 987, 1004, review granted
Sept. 29, 2021, S270555; People v. Pineda (2021) 66 Cal.App.5th
792, 795-796, review granted Sept. 29, 2021, S270513 (Pineda);
People v. Gonzalez (2021) 65 Cal.App.5th 420, 425, review
granted Aug. 18, 2021, S269792; People v. Secrease (2021) 63
Cal.App.5th 231, 236, 247, review granted June 30, 2021,
S268862 (Secrease); People v. Harris (2021) 60 Cal.App.5th 939,
956-958, review granted Apr. 28, 2021, S267802; People v. York
(2020) 54 Cal.App.5th 250, 258-263, review granted Nov. 18,
2020, S264954; People v. Smith (2020) 49 Cal.App.5th 85, 93-94,
review granted July 22, 2020, S262835; People v. Torres (2020) 46
Cal.App.5th 1168, 1179-1180, review granted June 24, 2020,
S262011.)
There is no need to repeat arguments that have been
thoroughly addressed in the above cited opinions. We stand by
our analysis in Nunez, review granted, and disagree that the
opinions stating the contrary view reflect the better argument.
We thus hold that defendant is unable to make a prima facie case
for relief under section 1170.95. Moreover, even if we agreed
with those cases which hold that a pre-Banks and Clark special
circumstance finding under section 190.2, subdivision (a)(17)
would not preclude defendant from making a prima facie
showing, we would reject defendant’s argument that the mere
allegation that he did not act as a major participant with reckless
disregard for life would be sufficient to make that showing.
Indeed, defendant cites authority in his opening brief that
support this point. Defendant cites Secrease, supra, 63
14
Cal.App.5th 231, review granted, and argues that a petitioner
can challenge the sufficiency of the evidence to support the
special circumstance in the section 1170.95 proceeding. (See
Secrease, at pp. 244-245, 255.) However, as the Secrease court
made clear, such a challenge would be made in order to
demonstrate a prima facie case of eligibility, and if successful, the
trial court would then be obligated to issue an order to show
cause, but not otherwise. (Id. at pp. 264-265; accord, Pineda,
supra, 66 Cal.App.5th at pp. 801-802, review granted.)
Defendant made no such effort to make a showing in the trial
court. “If as a matter of law the record of conviction shows . . .
that the defendant was a major participant who acted with
reckless indifference to human life, and the defendant does not
claim he has new evidence to present, he has not made a prima
facie case.” (People v. Murillo (2020) 54 Cal.App.5th 160, 173,
review granted Nov. 18, 2020, S264978.) As defendant made no
such claim in the trial court and makes no such claim here, the
trial court did not err.
Moreover, defendant has made no effort to demonstrate
prejudice. When a court has erroneously denied a petition
without the issuance of an OSC, the petitioner bears the burden
to demonstrate resulting prejudice under the standard of People
v. Watson (1956) 46 Cal.2d 818, 836, by showing a reasonable
probability of a different result had the court not erred. (See
Lewis, supra, 11 Cal.5th at p. 974.) Thus, assuming the trial
court erred in ruling that the special circumstance finding
rendered defendant ineligible as a matter of law, it is defendant’s
burden to show a reasonable probability that he would have
made a prima facie showing of eligibility if the trial court had not
erred.
15
Some of the courts that have held it is error to deny a
section 1170.95 petition solely on the basis of the pre-Banks and
Clark felony-murder special circumstance, also hold that the
reviewing court may independently review the appellate record to
determine whether the record is adequate for defendant to make
a prima facie showing. (Pineda, supra, 66 Cal.App.5th at p. 802,
review granted; People v. Law (2020) 48 Cal.App.5th 811, 822,
825-826, review granted July 8, 2020, S262490; see Secrease,
supra, 63 Cal.App.5th at pp. 255, 260-261, review granted [only if
record is adequate and the issue has been briefed].) Such a
review may be undertaken to determine prejudice, and if the
special circumstance was supported by substantial evidence, the
error is harmless. (See People v. Law, at pp. 825-826.)
Defendant has not included in the appellate record any
briefs or other documents from the record of conviction that he
may have submitted in the trial court in an effort to make a
prima facie showing. The only part of the record of conviction to
which defendant refers here is the appellate opinion in Daniels I,
supra, B249088. That opinion is more than adequate to permit a
harmless error analysis. In addition, since respondent’s brief
contains a discussion of the Banks and Clark factors as applied to
the facts contained in the record of conviction, defendant has had
the opportunity to reply, but failed to address respondent’s
analysis. Defendant’s reply is essentially an argument that the
trial court should have issued an OSC and held an evidentiary
hearing at which the prosecutor would have the burden to show
beyond a reasonable doubt that defendant acted with reckless
indifference to human life as a major participant as those terms
were clarified in Banks and Clark.
16
We agree with respondent that the record of conviction
establishes that defendant was a major participant who acted
with reckless indifference to life under the clarifying factors set
forth in Banks, supra, 61 Cal.4th at page 803 and Clark, supra,
63 Cal.4th at page 611. Defendant had a major role in planning
the crime. He testified that he was the one who suggested
getting marijuana from a medical dispensary and mentioned
particular dispensaries that did not require medical
authorization to enter. He told the detective that he went with
the others intending to steal (“score”) marijuana. He entered the
dispensary, went to the loft, pointed a gun at an employee and
demanded the marijuana. Defendant displayed a reckless
indifference to life. He was armed and knew that his accomplices
were armed, as Banks and either defendant or Gardiner entered
with guns drawn. He was doubtless familiar with guns, having
admitted that he sometimes carried a gun on his person for
protection, and thus knew of the danger when he pointed a gun
at an employee. After hearing the gunshot from downstairs,
defendant assisted his accomplices in pushing their way out of
the dispensary and was next to Banks while the security guard
was pushing back at the door. Defendant was therefore present
and in a position to prevent the murder but did not. After Banks
fired the first shot at the guard, defendant ran out and away
without any regard for the victim. (Daniels I, supra, B249088.)
As defendant makes no claim to have any new evidence on
this issue, he has failed to demonstrate a reasonable probability
that he would be able to make a prima facie showing of eligibility
despite the evidence in the record of conviction supporting the
special circumstances under the guidelines of Banks and Clark.
17
We conclude that the trial court did not error, but if it had, the
error would be harmless.
DISPOSITION
The order denying the section 1170.95 petition is affirmed.
___________________________
CHAVEZ, J.
We concur:
_______________________________
ASHMANN-GERST, Acting P. J.
_______________________________
HOFFSTADT, J.
18