1

Filed 11/13/20 P. v. Walton CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. D EMETRIUS CLAYTON WALTON , Defendant and Appellant. E07 2 770 (Super.Ct.No. INF0 39223 )

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]

THE COURT The court has reviewed the petition for rehearing filed November 9 , 2020

. The petition is denied. The opinion filed in this matter on November 2, 2020 , i s modified as follows : On page 1 3 , replace the first full paragraph, which begins, “ Defendant challenges

the . . . .” The first full paragraph should read: Defendant contends the court prejudicially erred and violated his constitutional right to due process by summarily denying his petition without giving him the2

opportunity to file a re ply to the prosecution’s response. We hold that the proper procedure for challenging a felony

- murder special

- circumstance finding is the filing of a habeas petition and, if he was entitled to have his counsel file a reply, it would not have

altered the re sult of the proceedings. On page 17, in the first full paragraph that begins, “Defendant conten d s that the jury’s true finding . . . ,” replace the second sentence with the following sentence:

“ Defendant argues that even if subject to a harmless error an alysis, the court’s failure to allow the filing of a reply was prejudicial, requiring reversal. ” The paragraph should

read: Defendant contends that the jury ’ s true finding on the felony

- murder special-circumstance finding does not necessarily show that h e is ineligible for relief. Defendant argues that even if subject to a harmless error analysis, the court’s failure to allow the filing of a reply was prejudicial, requiring reversal

. On page 19, footnote 4, add the full citation the first time we cite to “ Banks and Clark .” Footnote 3 should read: We acknowledge the contrary holdings in People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011; People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020, S262835; and Peo ple v. York (2020) 54 Cal.App.5th 250, which would allow defendants to challenge the validity of murder convictions that predated the People v. Banks (2015) 61 Cal.4th 788 ( Banks ) and People v. Clark (2016) 63 Cal.4th 522 ( Clark ) decisions, by requiring the People to prove, once again, the special circumstances beyond a reasonable doubt. We simply disagree that the language3

of section 1170.95 provides defendant an opportunity to relitigate special circumstance findings because of the clarification of the requirements for those findings in Banks and Clark

. T here is no change in the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

FIELDS J.

MENETREZ J.1

Filed 11/2/20 P. v. Walton CA4/2 (unmodified opinion) See concurring opinion

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 or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. DEMETRIUS CLAYTON WALTON, Defendant and Appellant. E072770 ( Super.Ct.No. INF039223)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meredith S. White, and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.2

Defendant and appellant Demetrius Clayton Walton filed a petition for

resentenci ng pursuant to Penal Code section 1170.95, 1 which the court denied. On appeal, defendant contends the court committed structural error in denying his petition without allowing him the opportunity to file a reply brief. We affirm.

I. FACTUAL AND PROCEDU RAL BACKGROUND 2 “About 2:00 a.m. on December 19, 2001, Officer Denney of the Desert Hot Springs Police Department saw a midsize, four

- door white car with its parking lights on parked in front of an apartment complex at Second and Mesquite. In the car wer e a female driver, Shalamar Wiley, and a male passenger, [codefendant Rayshawn Session]. Denney told them it would be a good idea to leave, because they were parked in front of a known ‘crack house.’” ( Owens et al. , supra , E033148.) “Russell Wilson live d in a one

- bedroom, one

- bathroom apartment in the complex. Faye Ransom, Wilson’s girlfriend, lived with him in the apartment. Also living at the apartment were Ransom’s mother, Catherine Daniels; Ransom’s niece, Sophia Lindsey; and Angela Rippy, a friend of Ransom’s. Sophia Lindsey’s mother, Mary Lindsey, also was at the apartment on the morning of December 19, 2001.” ( Owens et al. , supra , E033148.)

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 On July 15, 2019, we granted appellant’s request for judic ial notice filed June 26, 2019, and took judicial notice of our previous unpublished opinion in People v. Owens et al. (Apr. 12, 2005, E033148) [nonpub. opn.] ( Owens et al. ). We derive much of our factual recitation from the opinion in that matter. Furth er, we take judicial notice of the entire record in case No. E033148.3

“Sometime after midnight that morning, [codefendant Damien Owens] came to the apartment with [defendant] . Ransom was in bed in the bedroom at that time, watching television. Wilson also was in the bed, sleeping. Ransom and her mother had known Owens for several years and considered him a friend.” ( Owens et al. , supra , E033148.) “While Owens and [defenda nt] were visiting in the living room, there was a knock at the front door of the apartment. Sophia Lindsey answered the door and then told Owens, ‘[Y]our friend wants you.’ Owens went out briefly and came back in. [Defendant] stayed in the apartment. L ater there was another knock, and Sophia Lindsey told Owens his friend wanted him again. Owens went out again for a little longer than the first time and came back. Again, [defendant] stayed in the apartment while Owens was gone.” ( Owens et al. , supra , E033148.) “Owens went into the kitchen and got a plastic trash bag. Either Owens or [defendant] asked if [defendant] could use the bathroom. Ransom agreed. The bathroom was accessible only through the bedroom, so [defendant] went through the bedroom,

w here Wilson and Ransom were, and into the bathroom. However, he was only there for a short time and did not flush the toilet. Then he went back to the living room, and he and Owens conversed.” ( Owens et al. , supra , E033148.) “Angela Rippy was in the kitchen smoking ‘crack.’ She heard the dogs barking at the front door. As she opened the door to let them in, two men walked in and went toward the bedroom.” ( Owens et al. , supra , E033148.)4

“When Ransom heard the front door of the apartment open, she t old Sophia Lindsey to lock the door and not to open it anymore. Then she got up and locked the door herself.” ( Owens et al. , supra , E033148.) “As Ransom started back to the bedroom, she saw Session standing by the bedroom door and [defendant] sitting on the loveseat. Ransom had not seen Session before. She went into the bedroom and tried to close the door, but Session came in, grabbed her by the back of her head, and stuck a handgun to her head.” ( Owens et al. , supra , E033148.) “Session said, ‘Bitch, shut up, don’t say nothing. [G]ive me the money, and give me the dope.’ He shoved Ransom down on the bed. Ransom said she didn’t have any money and there was no dope there. Session said, ‘Bitch, give me the money or the dope or I’ll blow your fucking head off.’ He jammed the gun in her head again and tried to throw a sheet over her face. However, she was still able to see what was going on. [Defendant] had been in the bedroom while these events were occurring.” ( Owens et al. , supra , E033148.) “Ran som could feel Wilson, who was still in the bed, try to turn over. When this happened, Session said, ‘Fuck that, son of a bitch, fuck you,’ and shot Wilson in the chest.” ( Owens et al. , supra , E033148.) “Owens at that time was in the living room with Ri ppy, Daniels, and Mary and Sophia Lindsey. Either before or after the shot, Owens told the others not to ‘trip’ and that he and his companions were just there to collect a debt that had been owed for a long time. Wearing gloves, Owens unrolled a plastic trash bag and started undoing the DVD5

player from the television. He put the DVD player in the bag.” ( Owens et al. , supra , E033148.) “After he shot Wilson, Session said to [defendant], ‘Man, look, that mother fucker’s got on gold, take those fuckin’ ri ngs off his hands, get those rings.’ [Defendant] took four rings off Wilson’s fingers. Then [defendant] went over to the Play Station and yanked the wires off. He said, ‘[T]hat mother fucker, fuck this, I’m taking this shit,’ and he took the Play Statio n. Session and [defendant] left the room.” ( Owens et al. , supra , E033148.) “Rippy and Sophia Lindsey were in the living room when Session and [defendant] came out of the bedroom. Session stuck the gun in Linds ey’s face and told her and Rippy to get down on the floor. After getting down, Rippy looked up, and Session swung around, pointed the gun at her, and said, ‘Bitch, I’ll blow you away,’ and ‘I said get your head down, bitch, before I blow your mother fucki ng brains out.’” ( Owens et al. , supra , E033148.) “Owens, [defendant], and Session left the apartment together. After they left, Ransom went outside and saw a little white car with Owens and two or three other people driving away. [¶] Wilson died of a gunshot wound to the chest.” ( Owens et al. , supra , E033148.) “Following their arrests, all three defendants voluntarily spoke to district attorney investigators about the facts of the crimes. Investigator McDonagh testified about the

contents of the st atements, and a recording of Session’s statement was played for the jury. The court instructed the jury that the evidence of Owen’s and [defendant’s] statements6

could only be considered against the defendant who made the statement. Because

Session testif

ied at trial, the court instructed that the jury could consider his statement against all three defendants.” ( Owens et al. , supra , E033148.) “Owens was interviewed in the evening on December 19, 2001, and shortly after midnight the following morning. He stated he had gone to Wilson’s home the morning of December 19 to make some money. The idea was to rob Wilson, because Wilson wouldn’t report the crime to the police. [¶] Owens admitted he took the DVD player. He also admitted telling Sophia Lindsey ou tside the apartment that Wilson was going to get ‘jacked.’” ( Owens et al. , supra , E033148.) “Session stated that in the hours before the shooting he was at the residence of Shalamar Wiley, a close friend. At some point, he and Wiley drove to [defendant’s ] house in Wiley’s car, which was white. When they arrived, [defendant] and Owens were standing outside. Session had known [defendant] and Owens for several years. Owens was trying to sell drugs but wasn’t having very good luck.” ( Owens et al. , supra , E033148.) “Owens said they needed to make some money. He said he knew of an opportunity to get about $500 cash and a couple of ounces of dope. He said a man owed him some money. He said they could do it that night, but they didn’t have a ride.

Session said Wiley could give them a ride. [Defendant] was listening and said it sounded like a good idea.” ( Owens et al. , supra , E033148.) “Later that day, Session asked Wiley to give him, Owens, and [defendant] a ride to Desert Hot Springs so they could do s ome business. She agreed. Session told the others7

not to say anything around Wiley about what they were going to do, or she would not give them a ride.” ( Owens et al. , supra , E033148.) “Owens had been to Wilson’s apartment before. He told Session and [defendant] who would be at the apartment. Owens said he and [defendant] would go in first to see who had the money and how much there was. He also said he would bring a gun and put it under the car seat. He said he could not carry the gun when he went in the apartment, so Session should carry it.” ( Owens et al. , supra , E033148.) “On the way to Desert Hot Springs, Owens told the others how to get to the apartment. When they arrived and parked in front of the complex, Owens and [defendant] got out of t he car, and Session and Wiley sat and waited.” ( Owens et al. , supra , E033148.) “After an hour or two, Session got tired of waiting. He went to the apartment and knocked. Owens answered the door, along with a lady Session did not know. Owens said he wo uld come outside and talk to Session in a few minutes.” ( Owens et al. , supra , E033148.) “Later, Owens came out and said, ‘[L]ets [ sic ] go up in here and get my money.’ Session said, ‘[A]ll right lets [ sic ] go.’ Session grabbed the gun, and he and Owens entered the apartment. [Defendant] was sitting on the couch. Owens told Session he was going to stay in the living room to make sure the girls who were there did not go anywhere. He told Session to go into the bedroom.” ( Owens et al. , supra , E033148.) “Session went into the bedroom and saw the lady who had come to the door earlier, watching television. Session had the gun at his side. He said to her, ‘[W]here’s8

you’re [ sic ] all money and dope bag.’ The lady said, ‘

. . . I don’t have it. He has

ev erything.’ She got off the bed, and Session pushed her out of the way so he could get to Wilson’s side of the bed.” ( Owens et al. , supra , E033148.) “[Defendant] walked into the room. Wilson was still sleeping. [Defendant] told Session to wake him up. Session nudged Wilson, and he woke up and saw the gun. His reaction caused Session to put up his hand, and the gun went off. Session said, ‘[L]ets [ sic ] just leave’ and walked out of the apartment.” ( Owens et al. , supra , E033148.) “Session got in the car with Wiley. A couple seconds later, Owens and [defendant] ran to the car and jumped in with ‘all the stuff’ in their hands. Session told Wiley to drive away. He told Wiley, ‘

. . . I think I shot him, I think I killed him.’ He told Wiley to par k near a house so he could dispose of the gun. He left it in a flower pot. Wiley dropped Session off at his girlfriend’s sister’s house.” ( Owens et al. , supra , E033148.) “Session stated he and the others only went to the apartment to rob Wilson. Asked why, in that case, he took the gun with him, Session stated, ‘Well, what do you rob somebody with . . . .’ [¶] After making his recorded statement, Session led the investigators to the gun.” ( Owens et al. , supra , E033148.) “[Defendant] was interviewed in January 2002, in the presence of his attorney and a defense investigator. He said he had gone to the apartment complex on December 19, 2001, and was in the car when the police officer contacted Wiley and Session in front of the complex. [Defendant] be nt down and was out of the view of the officer.” ( Owens et al. , supra , E033148.)9

“After the officer left, [defendant] went inside the apartment to use the bathroom located in the bedroom. He left the apartment and went back outside to the front of the

c omplex. [¶] [Defendant] denied removing any property from the apartment and denied being in the apartment when Wilson was shot.” ( Owens et al. , supra , E033148.) “At trial, Session testified he went to the apartment complex on December 19, 2001, with Wil ey, Owens, and [defendant] to sell some drugs. Wiley did not want to go in the apartment, so Session stayed with her while Owens and [defendant] went inside to sell the drugs. Session, Owens, and [defendant] were supposed to take turns sitting in the

car with Wiley. Owens brought a gun along and put it behind the car seat.” ( Owens

et al. , supra , E033148.) “After an hour and a half, Owens and [defendant] had not returned, so Session went to the door of the apartment and asked them whether they wanted to switch places. They declined, so Session went back to the car.” ( Owens et al. , supra , E033148.) “Session again went to the door of the apartment and returned to the car. Then he went to the apartment a third time, went inside, and sat there talking to Owens. [Defendant] was sitting and smoking a cigarette. Session had never seen any of the other people in the apartment before.” ( Owens et al. , supra , E033148.) “After a while, Session heard an argument going on in the bedroom. He looked in

the bedro om and saw Ransom standing inside arguing with a man Session did not recognize. Wilson was lying in the bed. The man who had been arguing with Ransom came out of the room and asked if anyone had a gun. Session had brought the gun from the car for protec tion, because the apartment was a dope house. The man asked to use the10

gun, so Session gave it to him. The man put it in his waistband and walked back into the bedroom.” ( Owens et al. , supra , E033148.) “The man told Ransom that since they didn’t have h is money, he was going to take the DVD player and Play Station as collateral. He told Sophia Lindsey to get him a bag to put the stuff in. Ransom woke Wilson up to tell him the man was taking the stuff. Wilson and the man started arguing. The man tried to hit Wilson with the gun, but Wilson moved out of the way, and the gun bounced off the bed and went off.” ( Owens et al. , supra , E033148.) “Session asked the man why he shot Wilson. The man said it was an accident. Session took the gun back and start ed walking out the door. The man unhooked the Play Station and went out of the bedroom. Session suggested he and Owens leave. Owens took the DVD player, and he, Session, and [defendant] left the apartment. The man who had shot Wilson left right after t hat. Session thought the name of the man who shot Wilson was Bam, but he was not sure. [¶] Session disposed of the gun because he was afraid of getting pulled over and caught with it when it had been used to kill Wilson.” ( Owens et al. , supra , E033148. ) “Session further testified that his extrajudicial statement to the police was not truthful. He made the statement because the investigator said they knew he did it, and if he confessed and said the killing was an accident, he would get voluntary mansla ughter. Before Session made the statement, the investigator went over the whole case with him. Based on what the investigator told him, he made the statement.” ( Owens et al. , supra , E033148.)11

“According to Session, when he and the others went to the ap artment complex on December 19, 2001, [defendant] did not know what the plan was. On May 6, 2002, Session sent a letter to [defendant’s] mother stating [defendant] had nothing to do with what happened. The letter also stated that when Session gave the gu n to the man who shot Wilson, he did not know the man was going to shoot, because all the man said was that he was going to scare Wilson because Wilson owed him money. On June 28, 2002, Session wrote to [defendant’s] attorney, stating that although [defen dant] was inside the apartment at one point, he was not there when the crime took place and did not have any knowledge of what happened in the apartment.” ( Owens et al. , supra , E033148.) “After Session testified, Investigator McDonagh testified he did no t offer or give Session anything in return for his extrajudicial statement. According to McDonagh, the question whether he could assist Session in any way never came up.” ( Owens et al. , supra , E033148.) On September 11, 2002, after the completion of a joint trial, “a jury convicted [defendant, Owens, and Session] of (1) first degree murder with robbery and burglary felony

- murder special circumstance[s], (2) first degree robbery and (3) first degree burglary. The jury found a principal w as armed in the commission of the offenses. The jury further convicted Session of three counts of making a terrorist threat and found he personally and intentionally discharged a firearm causing great bodily injury or death.” ( Owens et al. , supra , E03314 8, fn. omitted.) “The court sentenced Owens and [defendant] to one year plus life without the possibility of parole and Session to 27 years to life plus life without the possibility of12

parole.” ( Owens et al. , supra , E033148.) On appeal from the judgment, defendant contended the court’s denial of his motion for a separate trial was reversible error; “even if the admission of his codefendants’ extrajudicial statements, his joint trial with the other defendants, and his trial counsel’s performance were not pr ejudicial enough to require reversal when considered individually, considered together they compel[led] reversal under the cumulative error doctrine”; “the court abused its discretion in denying his posttrial motion for disclosure of the trial jurors’ name s and contact information”; and the court’s denial of his motion for continuance of the sentencing hearing “was prejudicial error and a denial of due process.” ( Ibid .) This court affirmed the judgment as to defendant. ( Ibid .) On January 7, 2019, defenda nt filed a petition for resentencing pursuant to

section 1170.95. On February 21, the People filed an application to file opposition to the petition in excess of the page limitation. The court granted the application and filed the People’s response that day. The People’s response argued that section 1170.95 was unconstitutional on several bases. The People additionally argued defendant was ineligible for relief under section 1170.95 because the jury found true, as a requisite finding of the special circ umstances, that he was a major participant in the murder and acted with reckless indifference to human life. On March 11, the court sent notice of a status conference setting to the People and the public defender’s office. On March 15, 2019, the court hel d a hearing on the petition. Defense counsel noted that defendant’s reply brief was “due March 21, by my calculation. I would ask for13

April 19th.” 3 The court noted: “In this particular matter, the jury was instructed on aider and abettor liability. T he jury was also instructed on [the] felony

- murder rule. The jury was further instructed pursuant to CALJIC 8.80.1.” The court observed that the jury found both the burglary

- murder and robbery

- murder special circumstances true against

defendant. The cou rt then summarily denied the petition.

II. DISCUSSION Defendant challenges the trial court’s summary denial of his section 1170.95 petition for resentencing. Defendant argues that (1) the court violated his constitutional right to due process by summaril y denying his petition without affording him an opportunity to file a reply to the response; and (2) that the evidence is insufficient to support a finding that he was a major participant who acted with reckless indifference to

human life under People v. B anks (2015) 61 Cal.4th 788 ( Banks ) and People v. Clark (2016) 63 Cal.4th 522 ( Clark ) . We hold that the proper procedure for challenging a felony

- murder special

- circumstance finding is the filing of a habeas petition, and that whether he was entitled to ha ve his counsel file a reply, it would not have altered the result of the proceedings.

A. Legal Background. “In 2018 the Legislature enacted Senate Bill No. 1437 (2017

- 2018 Reg. Sess.)

. . . , which abolished the natural and probable consequences doctrine.

. . . Under

3 It is unclear when the court appointed counsel for defendant on the petition as the record contains no such order. Counsel for defendant informed the court, “As a matter of serendipity, I was [defendant’s] appellate counsel.”14

section 189, subdivision (e), as amended by Senate Bill No. 1437, a defendant is guilty of felony murder only if he: actually killed the victim; directly aided and abetted or solicited the killing, or otherwise acted with the intent to kill; or ‘was a major participant in the underlying felony and acted with reckless indifference to human life.’” [Citations.] The legislation also enacted section 1170.95 [(Stats. 2018, ch. 1015, § 4)], which established a procedure for vacating murder convict ions for defendants who would no longer be guilty of murder because of the new law and resentencing those who were so convicted.” ( People v. Murillo (2020) 54 Cal.App.5th 160, 166 ( Murillo ).) “Section 1170.95 allows a defendant serving a sentence for felo ny murder who would not be guilty of murder because of the new law to petition for resentencing. The statute requires a defendant to submit a petition affirming that he meets three criteria of eligibility: (1) He was charged with murder in a manner ‘that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine’ [citation]; (2) He ‘was convicted of’ or pleaded guilty to ‘first degree murder or second degree murder’ [citation]; and (3) He ‘could not be convicted of first or second degree murder because of changes to Section[s] 188 or 189 made effective’ as a part of Senate Bill No. 1437 [citation]. As described above, those changes eliminated the natural and probable consequences doctr ine as a basis for murder liability, and added a requirement for felony murder that a defendant must have been at least a major participant in the underlying felony and have acted with reckless indifference to human life.” ( Murillo , supra , 54 Cal.App.5th at p. 166.)15

Section 1170.95, subdivision (b), states that the petition must include: a declaration from the petitioner that he or she is eligible for relief under the statute, the superior court’s case number and year of conviction, and a statement as to whether the petitioner requests appointment of counsel. (§ 1170.95, subd. (b)(1).) If any of the required information is missing and cannot “readily [be] ascertained by the court, the court may deny the petition without prejudice to the filing of another petition.” (§ 1170.95, subd. (b)(2).) Section 1170.95, subdivision (c), sets forth the trial court’s responsibilities once a complete petition has been filed: “The court shall review the petition and determine if the petitioner has made a prima facie sh owing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the p etition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.”

If the c ourt issues an order to show cause, it must hold a hearing to determine whether to vacate the murder conviction. (§ 1170.95, subd. (d).) At that hearing, the prosecution has the burden of proving beyond a reasonable doubt that the petitioner is ineligibl e for resentencing. ( Id ., at subd. (d)(3).) The prosecutor and petitioner “may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” ( Ibid. )16

In short, a section 1170.95 petitioner must first make a prima facie case for relief and, if they are able to do so, the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and recall the sentence. (See, e.g., People v. Verdugo (2020) 44 Cal.App. 5th 320, 328, review granted Mar. 18, 2020, S260493.) “‘A prima facie showing is one that is sufficient to support the position of the party in question.’” ( People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, review granted Mar. 18, 2020, S260598, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) In this case, the trial court denied defendant’s petition at the first stage of prima facie review under section 1170.95, subdivision (c). “A denial at that stage is appropriate only if the re cord of conviction demonstrates that ‘the petitioner is ineligible for relief as a matter of law.’ [Citations.] This is a purely legal conclusion, which we review de novo.” ( Murillo , supra , 54 Cal.App.5th at p. 167.)

B. The Trial Court Properly Denied D efendant’s Petition.

1. The proper vehicle to challenge a felony

- murder special

circumstance finding is a habeas petition. “To be eligible for resentencing under section 1170.95, [a defendant] must show that he ‘could not be convicted of first or second de gree murder because of changes to Section[s] 188 or 189 made effective’ as a part of Senate Bill No. 1437. [Citation.] Under the newly amended version of section 189, a defendant can be convicted of felony murder only if he was the actual killer; acted w ith the intent to kill in aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting in first degree17

murder; or ‘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.’ [Citation.] These are identical to the circumstances in which a felony

- murder special circumstance applies. [Citation.] Thus, the jury’s special circumstance finding shows as a matter of law that [the defendant] c ould still be convicted of felony murder under the new definition, and prevents [the defendant] from making a prima facie case that he is eligible for resentencing.” ( Murillo , supra , 54 Cal.App.5th at p. 167.) Defendant contends that the jury’s true findi ng on the felony

- murder special

circumstance finding does not necessarily show that he is ineligible for relief. Defendant argues that the evidence is insufficient to support a finding that he was a major participant who acted with reckless indifference t o human life under Banks and Clark

. Three recent cases, however, have found that “the proper remedy for challenging a special circumstance finding is by a petition for habeas corpus, not a petition for resentencing under section 1170.95.” ( People v. Gal van (2020) 52 Cal.App.5th 1134, 1137, 1142 ( Galvan ); see Murillo , supra , 54 Cal.App.5th at pp. 167

- 168); People v. Gomez (2020) 52 Cal.App.5th 1, 17 ( Gomez ).) The Murillo court stated: “As we explained in Galvan , a defendant subject to a pre

- Banks and Cl ark special circumstance is ineligible for resentencing under section 1170.95 because of the basis of his claim. Although [the defendant] asserts that he could not now be convicted of murder, ‘the alleged inability to obtain such a conviction is not ‘beca use of changes’ made by Senate Bill No. 1437, but because of the clarification of the requirements for the special circumstances finding in Banks and Clark . Nothing about those requirements changed as18

a result of Senate Bill No. 1437. Just as was the cas e before that law went into effect, the special circumstance applies to defendants who were major participants in an underlying felony and acted with reckless indifference to human life. If [the defendant] is entitled to

relief based on Banks and Clark , t he avenue for such relief is not section 1170.95, but a petition for writ of habeas corpus.’” ( Murillo , supra , 54 Cal.App.5th at p. 168.)

The Murillo court went on to state that “[b]y requiring a defendant to seek relief via habeas corpus, we avoid creating a disparity in which similarly situated defendants’ cases are evaluated under different standards based solely on the date of their convictions. ‘Defendants convicted after the Supreme Court issued its decisions in Banks and Clark would be requir ed to challenge the sufficiency of the evidence of the special circumstance finding on direct appeal, where the People would need only to show that substantial evidence supported that finding. If the judgment is affirmed, generally it

would be the law of the case in any proceedings thereafter as to those findings. [Citations.] But where, as here, a defendant was convicted before Banks and Clark , if the defendant could bring a collateral challenge under section 1170.95, the prosecution would be required t o prove the special circumstance beyond a reasonable doubt. [Citation.] Yet nothing in the language of Senate Bill 1437 suggests that the Legislature intended unequal treatment of such similarly situated defendants.’” ( Murillo , supra , 54 Cal.App.5th at pp. 168

- 169.)19

We agree with Gomez , Galvan , and Murillo and hold that the proper procedure of challenging a felony

- murder special

- circumstance finding is a habeas petition

. 4

2. As a matter of law, the special circumstances, as defined by Banks and Clark, apply to defendant. Assuming arguendo that defendant can challenge the validity of a felony

- murder special

- circumstance finding via a petition under section 1170.95, defendant’s claim fails because his record of conviction, as a matter of law, estab lishes that the jury’s special circumstance finding is valid under the standard established by Banks and Clark

. Whether there is sufficient evidence that defendant was a major participant in the robbery, who acted with reckless indifference to human life, is a question we can decide on appeal. “A [d]efendant’s claim that the evidence presented against him failed to support [a] robbery

- murder special circumstance [finding made prior to Banks and Clark ]

. . . is not a ‘routine’ claim of insufficient evidence .” ( In re Miller (2017) 14 Cal.App.5th 960, 979

- 980.) The “claim does not require resolution of disputed facts; the facts are a given.” ( Id. at p. 980.)

4 We acknowledge the contrary holdings in People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011; People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020, S262835; and People v. York (2020) 54 Cal.App.5th 250, which would allow defendants to challenge the validity of murder convictions that predated the Banks and Clark decisions, by requiring the People to prove, once again, the special circumstances beyond a reasonable doubt. We simply disagree that the language of section 1170.95 provides defendant an opportunity to relitigate special circumstance findings because of the clarification of the requirements for those findings in Banks and Clark

.20

Section 190.2 sets forth the special circumstances under which murderers and accomplices can be puni shed by death or life without possibility of parole. One such circumstance is when a defendant is found guilty of first degree murder committed while he was engaged in, or was an accomplice to, the commission or attempted commission of a robbery. (§ 190. 2, subd. (a)(17)(A).) However, as explained post , a death resulting during the commission of a robbery (or any other felony enumerated in § 189) is insufficient, on its own, to establish a felony

- murder special

- circumstance finding for those defendants, l ike defendant in this case, who were not determined to be the actual killer. Such defendants can only be guilty of special circumstance felony murder if they aid in the murder with the intent to kill (§ 190.2, subd. (c)) or, lacking intent to kill, aid in the felony “with reckless indifference to human life and as a major participant.” (§ 190.2, subd. (d).) Section 190.2, subdivision (d), was enacted in 1990 (Stats. 1989, ch. 1165, § 16) to bring state law into conformity with prevailing Eighth Amendment doctrine, as set out in the United States Supreme Court’s decision in Tison v. Arizona (1987) 481 U.S. 137. ( Banks , supra , 61 Cal.4th at pp. 794, 797.) “In Tison , two brothers aided an escape by bringing guns into a prison and arming two murderers, one o f whom they knew had killed in the course of a previous escape attempt. After the breakout, one of the brothers21

flagged down a passing car, and both fully participated in kidnapping and robbing the vehicle’s occupants. Both then stood by and watched a s those people were killed. The brothers made no attempt to assist the victims before, during, or after the shooting, but instead chose to assist the killers in their continuing criminal endeavors. [Citation.] The Supreme Court held that the brothers co uld be sentenced to death despite the fact they had not actually committed the killings themselves or intended to kill, stating: ‘[R]eckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of deat h represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result. [¶] The [brothers’] own personal involveme nt in the crimes was not minor, but rather, . . . “substantial.” Far from merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery, each . . . was actively involved in every element of the kidnap[p]ing

- robbery and was physically present during the entire sequence of criminal activity culminating in the murder[s] . . . and the subsequent flight. The Tisons’ high level of participation in these crimes . . . implicates them in the resulting deaths.’” ( In re Ramirez (2019) 32 Cal.App.5th 384, 393

- 394, quoting Tison , at pp. 157

- 158.) “The Tison court pointed to the defendant in Enmund v. Florida (1982) 458 U.S. 782, . . . ( Enmund ) as an example of a nonkiller convicted of murder under the felony

murder rule for whom the death penalty was unconstitutionally disproportionate.22

Enmund was the driver of the getaway car in an armed robbery of a dwelling whose occupants were killed by Enmund’s accomplices when they resisted. [Citations.] In deciding the Eight h Amendment to the United States Constitution forbids imposition of the death penalty ‘on one such as Enmund . . . ,’ the high court emphasized that the focus had to be on the culpability of Enmund himself, and not on those who committed the robbery and sh ot the victims [citation]. ‘Enmund himself did not kill or attempt to kill; and, . . . the record . . . does not warrant a finding that Enmund had any intention of participating in or facilitating a murder. . . . [T]hus his culpability is plainly differe nt from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the [victims]. This was impermissible under the Eighth Amendment.’” ( In re Ramirez , supra , 32 Cal.App.5th at p. 394.)

In Banks , the California Supreme Court described what is often referred to as the

Tison

- Enmund spectrum. “At one extreme” are people like Enmund

— “‘the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state.’” ( Banks , supra , 61 Cal.4th at p. 800.) “At the other extreme [are] actual killers and those who attempted or intended to kill.” ( Ibid. ) Section 190.2, subdivision (d), covers those people who fall “‘into neither of these neat categories’”

—

people like the Tison brothers, who were major participants in the underlying felony and acted with a reckless indifference to human life. ( Banks , at

p. 800

. )23

The California Supreme Court articulated several factors intended to a id in determining whether a defendant falls into this middle category, such that section 190.2, subdivision (d), would apply to them. “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 sce ne 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 , supra , 61 Cal.4th at p. 803, ital ics added.) “No[t] one of these considerations is necessary, nor is any one of them necessarily sufficient.” ( Ibid. )

The defendant in Banks , Lovie Troy Matthews, was convicted of first degree murder with a felony

- murder special

- circumstance finding based on his having acted as the getaway driver for an armed robbery, which his codefendant Banks and others participated, and in which Banks shot and killed one of the robbery victims while escaping. ( Banks , supra , 61 Cal.4th at pp. 796

- 797.) Considering the defendant’s involvement in the robbery against the factors just enumerated, the court “placed [him] at

the Enmund pole of the Tison

- Enmund spectrum.” ( In re Ramirez , supra , 32 Cal.App.5th at p. 397.) As a result, the court concluded “the jury’s special

- circumstance true finding cannot stand.” ( Banks , at p. 811.)24

Not long after Banks , the court revisited this issue in Clark , also concluding the evidence was insufficient to support the defendant’s robbery

- murder special

circumstance findings. ( Clark , s upra, 63 Cal.4th at p. 611.) The defendant in Clark planned a burglary of a computer store to occur after the store was closed. According to the plan, his codefendant was to carry out the burglary and carry an unloaded gun. However, his codefendant ende d up carrying a gun loaded with one bullet and fired that bullet when he unexpectedly encountered a store employee, killing her. ( Id. at pp. 612

- 613.) The Supreme Court concluded there was insufficient evidence Clark acted with

reckless indifference to h uman life because (1) Clark was not physically present when his codefendant killed the employee and was therefore unable to intervene; (2) there was no evidence Clark knew his codefendant was predisposed to be violent; and (3) Clark planned for the robbery to take place after the store closed, and the gun was not supposed to be loaded. ( Id. at pp. 619

- 622.). In sum, the court believed there was “nothing in [Clark’s] plan that one can point to that elevated the risk to human life beyond those risks

inheren t in any armed robbery.” ( Id. at p. 623.)25

Defendant contends that even if subject to a harmless error analysis, the court’s failure to allow the filing of a reply was prejudicial, requiring reversal and remand. 5 We disagree.

As noted ante , in Banks , what the court found significant was the defendant’s role as the getaway driver, who was not aware his codefendants were going to use guns during the robbery. Because the defendant “did not see the shooting happen, did not have reason

to know it wa s going to happen, and could not do anything to stop the shooting or render assistance,” the court concluded he was not “willingly involved in the violent manner in which the particular offense [was] committed.” ( Banks , supra , 61 Cal.4th at pp. 801, 807; see id . at p. 803, fn. 5.)

In In re Miller , supra , 14 Cal.App.5th 960, the defendant and his cohorts planned one of their usual “‘follow

- home’” robberies. A “‘spotter’” would go to a bank and find a person withdrawing a large sum of money, the “‘driver’” would follow that person to his or her destination and the “‘getter’” would confront the person and take the money. ( Id . at p. 964.) They sometimes used guns, but not always. ( Id. at p. 965.) In the

5 To the extent the People suggest defendant forfeited the issue since his “counsel did not ask for time to file a reply or make any argument at the hearing,” we disagree. D efense counsel expressly noted that his reply was not due until six days later. We interpret counsel’s next statement, “I would ask for April 19th,” as a request for an extension to file the reply or, at the very least, a request to continue the hearing beyond the date for filing the reply. Counsel again stated, “We would ask for April 19th, your Honor.” We regard defense counsel’s statements as a preemptive objection to any summary denial. Thereafter, the court did not offer defense counsel any opportunity to respond to the court’s stated reasons for the summary d enial which was based upon the argument made in the People’s opposition. ( People v. Sperling (2017) 12 Cal.App.5th 1094, 1101

- 1102 [parties do not forfeit an issue if the court below failed to give them any meaningful opportunity to object].) Thus, defen dant has not forfeited the issue.26

charged incident, the defendant was the spotter and t old his cohorts to follow the victims. Thereafter, one of the cohorts ended up fatally shooting one of the victims. The robbers went back to the defendant’s house to divide up the money. ( Id. at pp. 964

- 965.) The court held that there was insufficient evidence to support the felony

- murder special

circumstance finding because the defendant did not know that a shooting would occur, was not present for the shooting, and could not prevent it. There was nothing to show

that the defendant knew that the risk of human life involved in this robbery was greater than the risk involved in the usual armed robbery. ( Id. at pp. 966

- 967, 974

- 977.) Here, the jury found defendant guilty of first degree murder with robbery and burglary felony

- murder special circumstances , first degree robbery, and first degree burglary. 6 ( Owens et al. , supra , E033148.) As the People both in the proceedings below and on appeal argue, the jury’s verdicts and special findings required that the court conclude that, although defendant was n ot the actual killer, he, at minimum, was a major participant in the underlying felony and acted with reckless indifference to human life.

6 In the opinion from the original judgment, this court noted: “The verdicts for the robbery special circumstance findings, as read to the jury, signed by the foreperson, read in court, and filed by the clerk, were not properly stated, because the verdict forms were not in the correct form. The verdicts stated: ‘We, the jury in the above entitled action, further find the defendant, [name of defendant], while the defendant were [ sic ] engaged in the commission of, attemp ted commission of, and the immediate flight after committing and attempting to commit the crime of Robbery in violation of Penal Code section 211/212.5, within the meaning of Penal Code section 190.2, subdivision (a), subsection (17)(A).’ The verdicts sho uld have included the words ‘murder of Russell Wilson was committed by’ between the words ‘the’ and ‘defendant’ the first time those words appeared. The mistake has no consequence, since both the robbery and the burglary special circumstance allegations w ere found true, and only one special circumstance finding is necessary to mandate a sentence of life without parole. ( People v. Odle (1988) 45 Cal.3d 386, 409.)” ( Owens et al ., supra , E033148.)27

Such a finding, under current law, would render defendant ineligible for relief pursuant to section 1170.95. (§ 189 , subd. (e)(2), (e)(3); Verdugo , supra , 44 Cal.App.5th at p. 326.)

D efendant was involved with Session and Owens in the planning of the burglary and robbery. Owens told Session and defendant he would bring a gun. Defendant and Owens came to the victim’s apartment together. While Owens left the apartment to strategize the burglary and robbery with Session, defendant stayed in the apartment to

monitor the situation inside. Defendant told Session to wake the victim and remained in the room as Session threa tened the victim’s girlfriend (Ransom), and then shot the victim. Immediately after the shooting, defendant began stealing property from the room in which the murder had taken place. Defendant left the apartment together with Owens and Session. Thus, the evidence established the Banks and Clark factors that defendant (1) was involved in the planning that led to the murder, (2) was aware of the dangers posed by the nature of the crime and the weapon used, (3) was present at the scene of killing and in a

po sition to both facilitate the murder (which he did by telling Session to wake the victim and by his mere presence) and prevent the murder (which he did not), (4) immediately began stealing objects in the room after the murder, and (5) left the apartment to gether with Owens and Session. Therefore, defendant’s conduct “qualified as a major participant

who acted with reckless indifference to human life under Banks and Clark

. . . .” ( People

v. Law (2020 ) 48 Cal.App.5th 811, 825.) “As a result, we con clude the denial of [ the defendant’s] petition was proper.” ( Ibid .)28

As the court in Murillo recognized, “[i]n People v. Smith (2020) 49 Cal.App.5th 85, 95

- 96 . . . , our colleagues in Division 5 of [the Second District] held that a defendant

could challen ge a pre - Banks and Clark special circumstance finding in a petition under section 1170.95. The court also held that it was inappropriate to determine at the first stage of review under section 1170.95 whether the defendant met the standard for a special c ircumstance under Banks and Clark because at the final eligibility hearing, a petitioner has the opportunity to introduce new or additional evidence regarding his eligibility for resentencing. [Citation.] The court in Smith held that, because a trial cou rt cannot know what evidence a petitioner may submit, it cannot at the first stage of review determine that a petitioner was a major participant who acted with reckless indifference to human life.” ( Murillo , supra , 54 Cal.App.5th at p. 173.) We agree with Murillo “that a petition under section 1170.95 cannot be used to challenge a felony

- murder special

- circumstance finding. Even if we assume that such a challenge can be asserted in a section 1170.95 petition, we disagree with Smith regarding

the standard for evaluating the evidence to determine whether a defendant has made a prima facie showing of eligibility under that section. If as a matter of law the record of conviction shows, as it does here and did in Smith , that the defendant was a major participa nt 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. This view is consistent with existing case law construing section 1170.95, including Lewis , supra , 43 Cal.App.5th 1128, review granted March 18, 2020, S260598 and Verdugo , supra ,29

44 Cal.App.5th 320, review granted March 18, 2020, S260493.” ( Murillo , supra , 54 Cal.App.5th at p. 173.) Here, like the record in Murillo , “the record of conviction establishe s as a matter of law that [the defendant] was a major participant who acted with reckless indifference to human life, as those terms were clarified in Banks and Clark , and [he] does not claim to have any new evidence on this issue. Therefore, even if his claim [were] cognizable under section 1170.95, [the defendant] was not eligible for relief under that statute.” ( Murillo , supra , 54 Cal.App.5th at p. 173.)

C. Any Error in Denying Defendant’s Request to Have His Counsel File a Reply Brief Was Harmless. Defendant also argues that the trial court prejudicially erred when it violated his constitutional right to due process by summarily denying his petition without giving counsel an opportunity to file a reply. We need not address this issue because even if it were error for the trial court, the error was harmless beyond a reasonable doubt. First, as

noted ante , the proper procedure for challenging a felony

- murder special

- circumstance finding is via a habeas petition. Moreover, even if defendant could chal lenge the validity of his conviction by means of a section 1170.95 petition, given the trial evidence, counsel would not have been able to demonstrate in a reply brief, or otherwise, that defendant was not a major participant who acted with reckless indiff erence to human life.30 I II. DISPOSITION The order denying defendant’s section 1170.95 petition for resentencing is

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. I concur:

FIELDS J.1

[ People v. Walton , E072770] MENETREZ, J., Concurring. I concur in the majority opinion except for parts B.2 and C of the Discussion. For the reasons set forth in my concurring opinion in People v. Jones (Oct. 23, 2020, E072961) __ Cal.App.5th __ [2020 Cal.App. Lexis 1003], I agree that a petition under Penal Code section 1170.95 is not a proper procedural vehicle for challenging a murder conviction by attacking a prior special circumstance finding. I therefore agree that the

trial court correc tly denied the petition and that any error in not allowing defendant to file a reply was harmless under any standard. ( Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) If defendant wishes to attack his special ci rcumstance finding under People v.

Banks (2015) 61 Cal.4th 788 ( Banks ) and People v. Clark (2016) 63 Cal.4th 522, he remains free to do so by means of a petition for writ of habeas corpus. (In 2015, defendant filed a habeas petition based on Banks , and it was denied.) I do not join part B.2 (or part C, which is partially based on part B.2) of the majority opinion’s Discussion because, in my view, it prejudges such a habeas petition.

MENETREZ J.