Opinion
B296078 B298820 B299314
07-06-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY D. MCLAURIN et al., Defendants and Appellants. THE PEOPLE, Plaintiff and Respondent, v. DEVON LAMONT LEWIS, Defendant and Appellant. In re ANTHONY D. MCLAURIN on Habeas Corpus.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant Anthony D. McLaurin. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Paul Jordan. Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant Devin Lamont Lewis. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews, Rama R. Maline, Idan Ivri and Allison H. Chung, Deputy Attorneys General, for Plaintiffs and Respondents.
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY D. MCLAURIN et al., Defendants and Appellants. THE PEOPLE, Plaintiff and Respondent, v. DEVIN LAMONT LEWIS, Defendant and Appellant. In re ANTHONY D. MCLAURIN on Habeas Corpus. ORDER MODIFYING OPINION
[There is no change in judgment] BY THE COURT:
It is ordered that the opinion filed herein on July 6, 2020 is modified as follows:
On the caption page, delete "DEVON" and replace it with "DEVIN".
There is no change in judgment. /s/_________
RUBIN, P. J. /s/_________
BAKER, J. /s/_________
KIM, J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA125019) ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Petition granted. APPEAL from orders of the Superior Court of Los Angeles County, Michael J. Shultz, Judge. Reversed and remanded with direction. Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant Anthony D. McLaurin. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Paul Jordan. Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant Devin Lamont Lewis. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews, Rama R. Maline, Idan Ivri and Allison H. Chung, Deputy Attorneys General, for Plaintiffs and Respondents.
____________________
INTRODUCTION
In 2013, three defendants, Anthony McLaurin, Paul Jordan, and Devin Lewis, were each convicted of two counts of special circumstances felony murder, and other crimes, arising out of a commercial robbery gone wrong. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)). Each was sentenced to life in prison without the possibility of parole (LWOP) and additional determinate terms. Although a principal armed allegation was found true (§ 12022, subd. (a)(1)) and Jordan and Lewis were also convicted of felon in possession of a firearm (fmr. § 12021, subd. (a)(2)), the jury made no specific findings as to which defendant, if any, was the actual killer of either of the two murder victims. It is unclear whether Jordan and Lewis were convicted under theories of direct liability or aider and abettor liability. McLaurin was, at most, a lookout who did not enter the business at the time of the robbery. He was convicted as an aider and abettor.
All further statutory references are to the Penal Code, unless otherwise stated.
Other individuals were involved in the commission of the robbery but were tried separately.
We affirmed the convictions of all three defendants in a nonpublished opinion, People v. McLaurin (Apr. 7, 2015, B250278 [nonpub. opn.]), in which, among other things, McLaurin had argued there was insufficient evidence to support his guilt. The Supreme Court granted a petition for review of defendants McLaurin and Jordan only, and transferred the matter to us for reconsideration of certain unrelated sentencing issues. We modified the sentences in ways that did not affect the LWOP terms, and otherwise adopted our prior opinion by reference. (People v. McLaurin (Dec. 21, 2015, B250278 [nonpub. opn.].)
Two developments unaddressed in either of our two previous opinions intervened. At the time of defendants' convictions, the felony murder special circumstance required a finding that the defendant, if not the actual killer or one who acted with intent to kill, was a major participant in the felony who acted with reckless indifference to human life. (§ 190.2, subd. (d).) The defendants' jury had been instructed on this point. Subsequent to the convictions, our Supreme Court in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) clarified the law of aider and abettor liability for the felony murder special circumstance, more narrowly construing "major participant" and "reckless indifference" to satisfy constitutional minimums.
Banks was issued after our first opinion, which had addressed McLaurin's sufficiency of the evidence argument but applied the law as it existed prior to Banks. We did not address Banks in our second opinion because the Supreme Court limited its remand to an unrelated sentencing issue on the determinate terms. Clark was filed after both our opinions.
The second intervening change in the law occurred in 2018. The Legislature adopted Senate Bill No. (SB) 1437 which, among other things, amended the felony-murder rule. (People v. Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo) review granted Mar. 18, 2020.) Specifically, SB 1437 amended section 189 to provide that an aider and abettor cannot be convicted of felony murder unless the defendant acted with the intent to kill or was a major participant who acted with reckless indifference to human life. In other words, SB 1437 incorporated into felony murder the requirements previously adopted by the Supreme Court in Banks and Clark for the felony-murder special circumstance. (§ 189, subd. (e).) SB 1437 also enacted a new statutory procedure, codified in section 1170.95, by which a defendant convicted of murder under the felony-murder rule could seek resentencing under the new, narrower, version of the law.
SB 1437 and section 1170.95 apply to both felony murder and murder based on the natural and probable consequences theory. The LWOP murder convictions here were based solely on felony murder.
All three defendants filed petitions for resentencing under section 1170.95. The petitions were summarily denied on the basis that the felony-murder special circumstance was found to be true with respect to each defendant for both murders. Defendants appeal, arguing that, in light of Banks and Clark, the true findings on the special circumstances in 2013 do not satisfy the requirements of SB 1437. In addition, McLaurin filed a petition for habeas corpus, arguing that, under Banks and Clark, there is no longer sufficient evidence to support the felony-murder special circumstance findings against him.
We first consider McLaurin's habeas petition and conclude his felony-murder special circumstances must be vacated. We also reverse the denial of his section 1170.95 resentencing petition. We next consider the appeals of Jordan and Lewis of the denials of their section 1170.95 petitions. We conclude that the pre-Banks and Clark special circumstances findings do not necessarily preclude relief under section 1170.95, and reverse the summary denials of their petitions as well.
FACTUAL AND PROCEDURAL BACKGROUND
Our discussion of the facts is taken primarily from our first opinion in the appeal. (People v. McLaurin, supra, B250278.)
1. The Robbery
On April 5, 2010, around 8:00 p.m., a group of armed men entered an automotive shop known as Custom City, where they committed multiple robberies and killed two people.
The day before the robberies, at least eight men, including the three defendants, met at a shed at Jordan's home to discuss a planned robbery at a different location - the home of a Custom City employee. They discussed how the men should enter the residence and that the occupants were to be tied up. One of the men, Jordan's brother, gave three of the others (none of them appellants here) a backpack containing three guns. Those three proceeded to the home of the target, but when they were waiting outside the home, they received a phone call saying that something had come up and the robbery plans were called off for the night.
The next day, a couple hours before the eventual robberies, McLaurin went to Custom City. The facts would show that a number of people socialized at Custom City - both employees of the shop and their friends. One of those men was Johnny Williams. When McLaurin went to Custom City, he told the people present that Johnny Williams had just been released from jail. McLaurin said, "We're going to party," and picked up a tequila bottle. One of the men there replied, "That's my bottle." McLaurin put the bottle down and left.
Later that day, the same people who had planned the cancelled robbery the day before gathered at Jordan's house to discuss plans for a new robbery, now to take place at the Custom City shop. Jordan's brother told some of those present to get some duct tape and latex gloves and that they would be tying people up.
Everyone in the group but McLaurin drove to the area of Custom City in three vehicles and parked near the location. One conspirator told another that McLaurin was the inside man on the job and it might be necessary to tie him up. However, the facts would show that McLaurin was not inside Custom City at the time of the robbery. Phone records would, however, place him in the area.
Prior to the robbery, one of the men opened the backpack containing the guns and weapons were distributed. Jordan took a .22 caliber sawed-off rifle and Lewis took a .38-caliber handgun. Two other robbers also armed themselves with handguns.
There were at least nine people already in Custom City when the robbers entered - two in the front, in the shop; five in the middle, watching television; and two near the back door.
At around 8:00 p.m., Lewis and Jordan entered from the back. They asked one of the men if they could buy some marijuana. When the man replied that he did not have any to sell, either Lewis or Jordan started to pull out a gun. The victim shoved one of them and hid. He heard a gunshot.
Lewis and Jordan proceeded to the front of the business; they were joined by a third armed man. The two victims in the front of the shop tried to flee, but Jordan stopped them. One of those men, Melvin Hoard, had been the man who was the target of the aborted robbery the previous day. Jordan put his gun in Hoard's face and demanded money. Hoard gave him money, saying, "Don't kill me." Jordan pulled the trigger of his gun, but it did not fire, apparently because the safety was on. Jordan tried to take the safety off.
Sounds of arguing and fighting came from the back. Jordan went in that direction. Hoard and the other victim from the front of the shop fled out the front door. They heard gunshots, from different guns, as they ran.
One of the men in the back of the store, Vance Dean, was shot and killed; he died from a gunshot wound to the head. Another victim, who had been watching television, Mark Richardson, was shot in the back, but managed to run out the back door. A man ran by Richardson, and he was shot a second time, but survived.
The victims remaining in the middle room heard gunshots and tried to hide. One of them, Lejon Robins, had a gun. He fired it, but it either jammed or ran out of ammunition. Robins was shot in the head and later died of his wounds.
While the victims were hiding, Jordan and Lewis entered the room. Jordan took money from Robins's pocket. Jordan and Lewis took money and property from two of the other robbery victims. A third man appeared and said, "We killed another [n-word]. Let's go." Jordan and Lewis left.
Johnny Williams, McLaurin's friend who had just been released from jail and had come to Custom City to pick up his car, hid in a back room when the shooting began. After the armed men had fled, Williams received a call from McLaurin. McLaurin asked where he was and what was going on. McLaurin also asked him if he was okay.
A witness arrived at Custom City after 8:00 p.m., intending to pick up one of the victims. She saw Lewis, Jordan and two or three other men run out of the back door of the business and get into a van. Two of the men had guns.
After a police chase, Jordan, Lewis and some of the others were captured. Several of the victims identified Jordan and Lewis in a field show up. Jordan and Lewis each tested positive for gunshot residue.
Police obtained cell phone records from McLaurin and Jordan. Records from McLaurin's phone showed that he made a call to Jordan's phone at 6:49 p.m., about an hour before the robbery started. The call connected through a cell tower 130 yards from Custom City. The call lasted 10 minutes. Jordan's phone did not use a cell tower near Custom City. McLaurin again called Jordan from the Custom City area at 7:35 p.m. This time, Jordan's phone used a cell tower near Custom City. The call lasted over 26 minutes, ending at about 8:02 p.m. At 8:09 p.m., 8:10 p.m. and 8:22 p.m., McLaurin called Johnny Williams. These calls connected through cell towers that were southeast of Custom City, and show McLaurin was moving away from the store.
At trial, Jordan testified in his own behalf, claiming that he was not present at the Custom City robberies at all, and had been arrested by the police when he was simply walking around looking for his brother. Lewis did not testify, but offered a brief defense that two of the witnesses had failed to identify him at another trial related to the Custom City crimes. McLaurin did not present any witnesses or any evidence in his defense. 2. The Convictions
All three defendants were found guilty of two counts of murder, one count of attempted murder (§§ 664, 187), five counts of second degree robbery (§ 211), and one count of assault with a firearm (§ 245, subd. (a)(2)). The jury found true the special circumstance allegations that both murders were committed during the commission of a robbery. 3. The Prior Appeal
As relevant to these proceedings, in the prior appeal, McLaurin argued there was insufficient evidence he aided and abetted, or conspired to commit, any of the crimes. A different panel of this division concluded that there was. We particularly relied on evidence that McLaurin was present at the planning sessions, that one of the criminals believed that McLaurin was to be the inside man for the robbery, that McLaurin had gone to Custom City on the afternoon of the robbery, and that his cell phone records showed him in the area and conversing with Jordan up until the robbery began. We held: "The timing of McLaurin's movements and phone calls to Jordan support a reasonable inference that McLaurin was acting as a scout, lookout or inside person for the robberies. This is sufficient to prove he aided and abetted the robberies and was a member of a conspiracy to commit the robberies. He was an integral part of the robberies and so 'under the felony-murder rule, guilty of murder' as well. [Citation.]" (People v. McLaurin, supra, B250278, p. 15.)
We did observe that one piece of evidence did not provide support that McLaurin conspired to commit the crimes. Specifically, various items recovered in connection with the investigation had been tested for DNA. One of those items was the backpack which had contained guns. A swab from the backpack's zipper contained a mixture of DNA with McLaurin being a possible contributor. The jury had been instructed that a potential overt act in support of the conspiracy was that McLaurin had provided the backpack. The only evidence linking McLaurin with the backpack was the DNA evidence. We concluded this was insufficient to support the instruction on this particular overt act, explaining, "There was DNA from two other people on the zipper and from at least two more people on the backpack strap, and there was no way to know when McLaurin contributed his DNA. Any one of those four other people could have provided the backpack to the conspirators. The mere fact that McLaurin touched the backpack at some point does not support an inference that he provided the backpack to the conspirators." (Id. at p. 18.) 4. The Section 1170 .95 Petitions
A. Jordan
On January 7, 2019, Jordan, without a lawyer, filed a petition seeking resentencing under section 1170.95. It was a form petition, and he checked the boxes on the form claiming that he had been convicted of first-degree murder under a theory no longer viable following SB 1437. He marked another box claiming that there "has been a prior determination by a court or jury that [he] was not a major participant and/or did not act with reckless indifference to human life" under section 190.2, subdivision (d).
On January 30, 2019, the trial court summarily denied his petition on the basis that, contrary to Jordan's assertion in his petition, the jury's felony-murder special circumstance finding was, in fact, a finding that Jordan was a major participant who had acted with reckless indifference. Jordan filed a timely notice of appeal.
B. McLaurin
On January 22, 2019, McLaurin, also without counsel, filed a similar petition making the same assertions. On March 15, 2019, the court denied his petition for the same reason. McLaurin filed a timely notice of appeal.
C. Lewis
On February 19, 2019, Lewis, also self-represented, filed his petition under section 1170.95. Unlike his codefendants, he did not claim a prior finding that he was not a major participant acting with reckless indifference.
On May 13, 2019, the trial court denied his petition. As with McLaurin and Jordan, the court concluded that Lewis's prior special circumstance finding precluded relief. The court also independently concluded that Lewis had been a major participant acting with reckless indifference, based on the facts as set forth in our prior appellate opinion. Lewis filed a timely notice of appeal. 5. McLaurin's Habeas Petition
On July 25, 2019, McLaurin filed a petition for writ of habeas corpus in this court on the ground that Banks and Clark required a reevaluation of his special circumstance findings. On August 16, 2019, we issued an order directing the Secretary of the Department of Corrections and Rehabilitation to show cause in this court why the petition should not be granted. We also advised the parties that we would consider the habeas petition at the same time as the section 1170.95 appeals.
DISCUSSION
1. McLaurin's Habeas Corpus Petition
A. Standard of Review
"The standard of review for a sufficiency of the evidence claim as to a special circumstance is whether, when evidence that is reasonable, credible, and of solid value is viewed 'in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.' [Citations.] The standard is the same under the state and federal due process clauses. [Citation.] We presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial. [Citation.]" (Clark, supra, 63 Cal.4th at p. 610.)
B. Insufficient Evidence of Special Circumstances
McLaurin contends there is insufficient evidence to support the special circumstance findings in light of Banks and Clark. We agree.
The penalty for first-degree special-circumstances murder under section 190.2, subdivision (a), is either death or LWOP. One of the enumerated special circumstances is that the murder was carried out while the defendant was engaged in, or was an accomplice in, the commission of a felony, including robbery. (§ 190.2, subd. (a)(17)(A).) Where the defendant was not the actual killer, but an aider and abettor, section 190.2 requires a further showing that the defendant was "a major participant in the crime" and acted "with reckless indifference to human life." (§ 190.2, subd. (d).)
If the defendant was not the actual killer, but an aider and abettor, section 190.2 also permits a special circumstances finding if the evidence shows the defendant's "intent to kill." (§ 190.2, subd. (c).)
In Banks, our Supreme Court considered for the first time what it means to be a "major participant" and to act with "reckless indifference to human life" in the context of felony murder. (Banks, supra, 61 Cal.4th at p. 794.) Banks stated that the language of section 190.2, subdivision (d) "imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life." (Id. at p. 798.) The court explained that this special circumstance statute was designed to codify the constitutionally-based holdings of Tison v. Arizona (1987) 481 U.S. 137 (Tison), and Enmund v. Florida (1982) 458 U.S. 782 (Enmund), each representing opposite ends on a spectrum that describes an aider and abettor's personal role in the felony leading up to the murder. (Banks, at p. 802.) Somewhere in the middle of these two authorities "lies the constitutional minimum for death eligibility." (Ibid.)
Although developed in death penalty cases, the constitutional standards articulated by our Supreme Court apply equally to cases involving statutory eligibility for LWOP under section 190.2, subdivision (d). (Banks, supra, 61 Cal.4th at p. 804.)
To establish the major participant requirement, "a defendant's personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder." (Banks, supra, 61 Cal.4th at p. 802.) As to the reckless indifference requirement, the defendant must "be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create." (Id. at p. 801.) Banks identified the following factors that may play a role in determining whether a defendant is a "major participant" within the meaning of section 190.2, subdivision (d): "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Banks, at p. 803, fn. omitted, Clark, supra, 63 Cal.4th at p. 611.) Banks cautioned, "No 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.' " (Banks, supra, at p. 803.)
One year later, our Supreme Court in Clark addressed the factors that are relevant in determining whether a defendant acted "with reckless indifference to human life." Those factors are: (1) knowledge of weapons, and use and number of weapons; (2) physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) duration of the felony; (4) defendant's knowledge of cohort's likelihood of killing; (5) defendant's efforts to minimize the risks of the violence during the felony. (Clark, supra, 63 Cal.4th at pp. 618-622.) As was the case with "the factors concerning major participant status in Banks, '[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient.' [Citation.]" (Id. at p. 618.) Clark acknowledged that being a major participant and having reckless indifference to human life " 'significantly overlap . . . for the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life.' (Tison [v. Arizona (1987)] 481 U.S. at p. 153.)" (Clark, at p. 615.)
In light of Banks and Clark, we conclude that the jury's finding that the special circumstance allegations were true is not supported by substantial evidence. The prosecution's theory was that McLaurin was part of a group of individuals who planned to rob a Custom City store. Our appellate opinion acknowledged that McLaurin and others planned to rob the store and concluded it was a reasonable inference that McLaurin was a scout or lookout, aided and abetted, and was a member of a conspiracy to commit the robberies. However, "[t]he crime itself was armed robbery; Enmund and Tison together demonstrate that participation in an armed robbery, without more, does not involve 'engaging in criminal activities known to carry a grave risk of death.' (Tison . . . supra, 481 U.S. at p. 157.)" (Banks, supra, 61 Cal.4th at p. 805.) In "a garden-variety armed robbery" death might be possible but not probable. (Id. at p. 802.)
Considering the Banks and Clark factors, and recognizing they overlap, we conclude there was insufficient evidence McLaurin was a major participant who acted with reckless indifference to life. McLaurin was involved in planning the robberies, with a large group of other men; the evidence does not suggest he was the mastermind or even a driving force. There was no evidence that McLaurin possessed a firearm or provided a firearm to the shooters. There was evidence from which the jury could assume McLaurin knew that at least some of the robbers would be armed, but not that he knew they were likely to kill. For example, the prosecution presented no evidence McLaurin or any of the armed men had themselves previously committed murder, attempted murder, or any other violent crime - one of the Banks and Clark factors. There was evidence that the robbery plan involved tying up the victims, but no indication that it involved shooting them. Although McLaurin was seen at the Custom City earlier that day, and on previous occasions, he was absent from the scene when the shootings took place, and could not have acted to restrain the shooters or protect the victims - another Banks/Clark factor. Rather, the evidence showed that McLaurin was in the vicinity when the crimes took place, and drove away alone. He was not the getaway driver.
In the current habeas proceeding, the Attorney General again relies on McLaurin's DNA on the backpack zipper. The Attorney General acknowledges our conclusion in the prior appeal that there was insufficient evidence to support the inference that he had provided the backpack, but nonetheless asserts, "the jury could infer that [McLaurin] played some role in supplying the weapons which were in the backpack." For a second time, we are not persuaded. We held in the prior opinion that "[t]he mere fact that McLaurin touched the backpack at some point does not support an inference that he provided the backpack to the conspirators." It is equally true that the mere fact that he touched the backpack at some point does not support an inference that he supplied the weapons that were in the backpack.
We reject the Attorney General's suggestion that McLaurin "knew that at least one person inside Custom City would offer resistance to a robbery" because when he had gone there earlier and picked up a tequila bottle, one of the men present exclaimed that it was his bottle. It needs little discussion that exclaiming, "That's my bottle" when McLaurin grabbed it in the course of a spontaneous call to party does not suggest later resistance to an armed robbery.
At oral argument, the Attorney General placed great weight on McLaurin's post-robbery telephone calls to Johnny Williams, his friend who had hidden in the back during the robbery. Specifically, the Attorney General suggested that, because McLaurin asked Williams if he was okay, McLaurin must have subjectively been aware that the crime involved a "grave risk" of death. The conclusion does not follow. McLaurin knew there had been an armed robbery at Custom City; it is certainly reasonable that, knowing his friend had been at the location of an armed robbery, McLaurin would ask-that friend if he was okay. The Attorney General's inference, that by asking after the robbery if Williams was okay, McLaurin betrayed a subjective knowledge before the robbery that this particular robbery involved a grave risk of death, is speculative. It is not evidence that McLaurin knew this armed robbery involved a greater risk of death than any other armed robbery.
McLaurin's participation in the offense was no more involved or culpable than that of the petitioner in In re Miller (2017) 14 Cal.App.5th 960. We vacated Miller's felony-murder special circumstance in light of Banks and Clark. Miller had been convicted of felony murder for aiding and abetting an associate in a follow-home robbery. Miller had planned the robbery and acted as the "spotter"; he identified the target robbery victim when she withdrew a large sum of money from the bank, and pointed her out to his two colleagues, the "getter" and the "driver," in a waiting vehicle. His friends followed the victim in their van, and when she reached her location, the getter exited the van and tried to snatch the victim's purse. When the robbery victim's male companion moved toward the getter, the getter killed the male companion, then jumped back in the vehicle. The driver drove off. (Id. at pp. 964-966.) Miller, the spotter, was convicted of felony-murder and the special circumstance was found true. Following Banks and Clark, we granted habeas relief. (Id. at pp. 964-965.) We concluded that even if Miller, as mastermind of the robbery, is considered a major participant, there was insufficient evidence of reckless indifference to human life. (Id. at pp. 974-975.)
We also see similarities to People v. Ramirez (2019) 41 Cal.App.5th 923, a case in which the Court of Appeal addressed the denial of a section 1170.95 petition filed after the court had vacated the defendant's felony-murder special circumstance under Banks and Clark. In explaining its prior habeas opinion, the court stated, "We concluded that the evidence established that defendant was not the actual killer in this case, that he remained outside, that he had no forewarning that one of his accomplices would shoot a victim, he did not instigate the shooting, and he was not in a position to prevent it; thus, under the Banks and Clark factors, the prior 'finding that [defendant] was a major participant who acted with reckless indifference to human life [was] not supportable.' [Citation.]" (Ramirez, at p. 927; see also In re Taylor (2019) 34 Cal.App.5th 543, 547-548, 557; In re Bennett (2018) 26 Cal.App.5th 1002, 1019-1020.)
Because neither the level of McLaurin's planning nor any involvement in the actual robbery elevated the risk beyond those inherent in any armed robbery, his role as an aider and abettor was not sufficient to support either the major participant or reckless indifference components of the special circumstance finding. (Clark, supra, 63 Cal.4th at pp. 617-618; Banks, supra, 61 Cal.4th at p. 802.)
C. The Issue is Appropriately Addressed on Habeas Corpus
The Attorney General argues that we should not reach the merits of the petition because McLaurin's argument either was, or should have been raised in his first appeal. The argument goes that, because we rejected McLaurin's argument that the evidence of liability for murder was insufficient, we necessarily rejected the identical contention with respect to the special circumstances.
We rejected that argument in In re Miller, supra, 14 Cal.App.5th at pages 977-978, and do so again here. It is true that the general rule is that legal claims previously raised and rejected on direct appeal ordinarily cannot be raised on habeas. However, as we said in Miller, the rule "has no application in the unusual circumstance here where our Supreme Court has revisited the meaning of a penal statute. Banks and Clark are correctly understood to have clarified the plain textual requirements of section 190.2 that have existed since the statute's inception, and so understood, section 190.2 went unsatisfied by the proof at defendant's trial and the resulting sentence must be vacated regardless of our prior determination of defendant's appeal." (Ibid.; In re Scoggins (2020) ___ Cal.5th ___ [2020 WL 3525184, *3].)
D. Conclusion for McLaurin's Habeas Petition
The prosecution is precluded from retrying the allegation as there is insufficient evidence to support the special circumstance finding. (U.S. Const., 5th & 14th Amends.; Burks v. United States (1978) 437 U.S. 1, 18.) We therefore grant the petition for writ of habeas corpus and vacate McLaurin's two robbery-murder special circumstance findings. This alone would require a remand for resentencing. However, our habeas determination also impacts his section 1170.95 petition, so we turn to those petitions next. 2. The Defendants' Section 1170 .95 Resentencing Petitions
Separate from McLaurin's special circumstances habeas petition are the appeals of the three defendants of the denial of their petitions for resentencing under section 1170.95. Once a section 1170.95 petition is filed, there follows a multi-step process by which the court first determines whether the petition is facially complete, and, if so, whether the petitioner has made a prima facie showing that he falls within the provisions of statutory eligibility. (People v. Torres (2020) 46 Cal.App.5th 1168, 1177 (Torres) review granted June 24, 2020.) If the court determines at this first stage the petitioner is ineligible for relief as a matter of law, the petition is denied; if not, the court proceeds to the next step. (Id. at p. 1178.) That step requires the court to appoint counsel for the defendant, if requested, and permit briefing on the issue of the defendant's entitlement to relief under the statute. (Verdugo, supra, 44 Cal.App.5th at p. 330.) If the defendant establishes a "postbriefing prima facie showing the petitioner is 'entitled to relief' " (id, at p. 329), then the court issues an order to show cause and proceeds to the third stage. At the third stage, the court holds a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the defendant on any remaining counts. (§ 1170.95, subds. (c) & (d); Verdugo, at p. 328.)
We agree that, at the first stage, the court may consider not only the petition itself but also readily available portions of the record to determine whether the defendant is ineligible as a matter of law. (Verdugo, supra, 44 Cal.App.5th at p. 323.) The readily available portions of the record, which the court may examine, include, "at least," the "complaint, information or indictment filed against the petitioner; the verdict form or factual basis documentation for a negotiated plea; and the abstract of judgment." (Id. at pp. 329-330.) The trial court may also consider jury instructions and any Court of Appeal opinion in the case. (Id. at p. 333; People v. Edwards (2020) 48 Cal.App.5th 666, 675, petn. for rev. filed June 2, 2020.)
We also agree that when a felony-murder special circumstance has been found true prior to Banks and Clark, that special circumstance finding alone does not establish that the defendant was a major participant acting with reckless indifference so as to preclude relief at this, initial, eligibility stage. (Torres, supra, 46 Cal.App.5th at pp. 1178-1180.)
The Attorney General cites People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411 for the proposition that the trial court may deny a section 1170.95 petition at the first stage based on a preBanks/Clark special circumstances finding. We disagree. In Gutierrez-Salazar the Court of Appeal was presented with the issue on direct appeal from a conviction. The court left open the possibility that the defendant could pursue a section 1170.95 petition. (Id. at p. 420.) More significantly, the opinion does not mention Banks or Clark. It, thus, did not consider the impact of those cases on the special circumstance finding and its relevance to the multi-stage analysis on a section 1170.95 petition. We expressly considered these issues in Torres and concluded that a preBanks/Clark special circumstance finding does not render the defendant ineligible for relief under section 1170.95.
Appellate courts have disagreed whether in pre-Banks/Clark cases, the trial court may look behind the special circumstance finding, review the evidence at trial, and determine the defendant is ineligible for resentencing as a matter of law. In People v. Law (2020) 48 Cal.App.5th 811 (Law), petition for review filed June 5, 2020, Division Two of the Fourth Appellate District concluded that, at the eligibility stage, the court could review the evidence at trial and retroactively determine if substantial evidence existed to satisfy Banks and Clark; indeed, the Court of Appeal conducted that review itself, on the basis that it did not require the resolution of disputed facts. (Id. at p. 822.)
In People v. Smith (2020) 49 Cal.App.5th 85 (Smith), we expressly disagreed with Law. We held that, absent any other disqualifying factor, if the special circumstance finding is pre-Banks/Clark, the trial court must proceed to the entitlement stage, and give the defendant "the opportunity to develop, with the aid of counsel, a factual record beyond the record of conviction." (Id. at p. ___ .)
Section 1170.95, subdivision (d)(3) contemplates that the defendant may present or proffer evidence at the entitlement stage. It provides in part: "The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." In light of the shifting, but separate, burdens set out in section 1170.95, the "respective burdens" can only refer to defendant's burden at the entitlement stage and the prosecution's burden at any OSC hearing. At each stage, the party having the burden may present additional evidence.
We reaffirm our holding in Smith. Under section 1170.95, subdivision (c), in those cases where the only factor that might disqualify a defendant from proceeding to the second entitlement phase is a pre-Banks/Clark special circumstance finding, the defendant is entitled to proceed to the second stage. And in that situation the appellate court "cannot conduct [its] own assessment of the trial evidence to determine whether [the defendant] was a major participant and acted with reckless indifference to human life, or to use that record evidence to inquire whether the deprivation of counsel was harmless error . . . ." (Smith, supra, at p. ___ .)
We next turn to the three section 1170.95 petitions presented to the trial court.
A. McLaurin's section 1170 .95 Petition
Here, the trial court denied the petition at the eligibility phase, holding that the robbery-murder special circumstance findings precluded relief. Because we have held the robbery murder special circumstance findings are unsupported by sufficient evidence, the trial court's rationale for denying McLaurin's section 1170.95 petition without appointing counsel does not hold. The trial court must appoint counsel for McLaurin before determining whether an order to show cause should issue under section 1170.95, subdivision (c).
McLaurin seeks no further relief; we therefore need not address whether the vacation of the special circumstance findings alone requires the trial court to vacate the underlying felony-murder convictions.
B. Jordan's section 1170 .95 Petition
Although Jordan did not file a habeas petition - and, therefore, his felony-murder special circumstances still stand - the trial court nonetheless erred in summarily denying his petition for resentencing based on those special circumstances findings. The intervening Banks and Clark opinions and the passage of SB 1437 mean that the jury's 2013 special circumstance findings that Jordan was a major participant who acted with reckless indifference to human life do not necessarily establish that he was a major participant who acted with reckless indifference as the terms are now defined. (Smith supra, 49 Cal.App.5th at p. ___ [262 Cal.Rptr.3d at pp. 693-694]; Torres, supra, 46 Cal.App.5th at p. 474.)
Jordan, like McLaurin, is entitled to the appointment of counsel and a hearing under section 1170.95, subdivision (c).
The facts recited in our previous opinion (People v. McLaurin, supra, B250278) present considerable evidence that Jordan was a major participant who acted with reckless indifference to life. Part of the evidence was that Jordan pointed a gun at the face of one of the victims and pulled the trigger, but the gun would not fire. We also observe that Jordan testified at the trial, claiming only that he was not present at the robbery. Section 1170.95, subdivision (d)(3) allows the defendant to offer additional evidence at the entitlement hearing and does not condition that right on defendant having not testified at trial. The scope of the trial court's review at the entitlement stage "is identical to the standard for issuance of an order to show cause in a habeas proceeding, as set forth in rule 4.551(c)(1): 'The court must issue an order to show cause if the petitioner has made a prima facie showing that he or she is entitled to relief. In doing so, the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause.' [Citations.]" (Verdugo, supra, 44 Cal.App.5th at p. 328.) It will therefore be for the trial court to determine whether any evidence Jordan may offer establishes a prima facie case that he was not a major participant acting with reckless indifference, in light of the entire record, including Jordan's testimony at trial.
C. Lewis's section 1170 .95 Petition
Our analysis as to Lewis is largely identical to that of Jordan. The pre-Banks/Clark special circumstance findings do not automatically render him ineligible for relief.
The trial court order on Lewis's petition differs from the McLaurin and Jordan orders. The trial court also denied Lewis's motion on the alternative ground that the court's own review of the facts in the appellate opinion demonstrated he was a major participant who acted with reckless indifference. As with Jordan, there is considerable evidence that would support the trial court's major participant and reckless indifference findings for Lewis. But Lewis is also entitled to representation by counsel, if he requests, and to provide additional evidence to contest the findings in our prior opinion. (Smith, supra, 49 Cal.App.5th at p. ___ .)
The Attorney General does not ask us to independently assess the facts under Banks and Clark. We rejected that notion in Smith.
We conclude that Lewis, as well, is entitled to appointment of counsel and a hearing under section 1170.95, subdivision (c).
D. Jordan and Lewis Are Not Entitled to Resentencing on the Attempted Murder Counts
On appeal, Jordan and Lewis (but not McLaurin) argue that section 1170.95 also applies to their convictions for attempted murder - an argument they did not raise in their petitions for relief before the trial court. There is some debate as to whether SB 1437 applies to attempted murder in cases not yet final on appeal - an issue pending before our Supreme Court. (Compare People v. Medrano (2019) 42 Cal.App.5th 1001, 1007-1008, review granted Mar. 11, 2020 [attempted murder qualifies under SB 1437 on direct appeal] with People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-1105, review granted Nov. 13, 2019 [attempted murder does not qualify under SB 1437 on direct appeal].) However, case law is uniform that section 1170.95 resentencing applies only to murder, not attempts. (Medrano, supra, at pp. 1016-1018, review granted Mar. 11, 2020; People v. Larios (2019) 42 Cal.App.5th 956, 969-970, review granted Feb. 26, 2020; People v. Munoz (2019) 39 Cal.App.5th 738, 754, review granted Nov. 26, 2019; Lopez, supra, at pp. 1104-1105.)
On remand, defendants are not entitled to pursue resentencing on the attempted murder counts.
DISPOSITION
McLaurin's petition for writ of habeas corpus is granted. The true findings on the special circumstances allegations under section 190.2, subdivision (a)(17)(A), as to McLaurin alone, are vacated.
The trial court's orders denying the three defendants' petitions for resentencing on the murder counts under section 1170.95 are reversed. On remand, the trial court shall appoint counsel for each defendant, if requested, and to conduct a hearing in accordance with section 1170.95, subdivision (c).
RUBIN, P. J. WE CONCUR:
BAKER, J.
KIM, J.