Filed 12/23/21 P. v. Daniels CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

BRANDON DANIELS,

Defendant and Appellant.

 B308995

 (Los Angeles County 

 Super. Ct. No. BA347305)

 ORDER MODIFYING

 OPINION AND DENYING

 PETITION FOR REHEARING

 NO CHANGE IN JUDGMENT

THE COURT:*

It is ordered that that the opinion filed herein on

December 16, 2021, be modified as follows:

The four-sentence passage in the second paragraph at page

14 and continuing to page 15 beginning with “Indeed, defendant 

cites authority . . .” through and including the sentence 
2

“Defendant made no such effort to make a showing in the trial 

court” is deleted.

There is no change in the judgment.

The petition for rehearing filed by appellant on 

December 17, 2021, is denied.

____________________________________________________________

*ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
Filed 12/16/21 P. v. Daniels CA2/2 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

BRANDON DANIELS,

Defendant and Appellant.

 B308995

 (Los Angeles County

 Super. Ct. No. BA347305)

APPEAL from an order of the Superior Court of Los 

Angeles County, Craig J. Mitchell, Judge. Affirmed.

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and Peggy Z. Huang, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Brandon Daniels (defendant) 

appeals from the denial of his petition for resentencing pursuant 

to Penal Code section 1170.95.1 He contends that in his petition 

he made a prima facie showing of eligibility for relief, which 

triggered the trial court’s obligation to issue an order to show 

cause (OSC) and conduct an evidentiary hearing. We disagree

and affirm the order denying the petition.

BACKGROUND

In 2013, defendant was convicted of first degree murder 

(§ 187, subd. (a); count 1), attempted second degree robbery 

(§§ 664/211; count 2), and second degree commercial burglary 

(§ 459; count 3).2 As to count 1, the jury found true the robbery 

special-circumstance allegation (§ 190.2, subd. (a)(17)). As to 

counts 1 and 2, the jury found true the allegation that a principal 

personally and intentionally discharged a firearm causing great 

bodily injury and death (§ 12022.53, subds. (d) & (e)); and as to 

all counts, the jury found true the gang enhancement of section 

186.22, subdivision (b). On May 24, 2013, defendant was 

sentenced to prison for life without the possibility of parole plus a 

1 All further statutory references are to the Penal Code, 

unless otherwise indicated.

2 At defendant’s request we take judicial notice of our 

nonpublished opinion affirming the judgment in People v. Daniels

(Sept. 29, 2014, B249088) (Daniels I). Our summary is drawn 

from the facts set forth in that opinion. We granted respondent’s 

request for judicial notice of portions of the reporter’s transcripts 

supporting facts summarized in the opinion and respondent’s 

brief.
3

consecutive term of 25 years to life. We affirmed the judgment in 

Daniels I, supra, B249088.

The evidence at trial showed that in 2008, defendant and 

three fellow gang members (Leon Banks, David Gardiner, and 

Lovie Troy Matthews) participated in the attempted robbery of a 

marijuana dispensary during which an unarmed security guard 

was killed. Matthews was the getaway driver. A GPS monitor 

that Matthews wore showed that he remained few blocks from 

the dispensary for about 30 minutes near the time of the 

attempted robbery. Defendant, Banks, and Gardiner went to the 

dispensary where Banks entered a secure anteroom or “man 

trap,” with a medical marijuana authorization. (Daniels I, supra, 

B249088.) Banks and another of the robbers then entered the 

lobby with handguns drawn, while a third kicked down the door 

to the lobby. A dispensary employee who was assisting a patient

in the upstairs loft saw defendant jump over the counter in the 

lobby and run upstairs where he pointed a gun at the employee 

and asked, “Where’s the shit at?” (Ibid.) The employee told him 

it was behind the bar and to take whatever he wanted. 

Meanwhile Banks forced two other employees to the ground after 

he said to one of them, “If you keep looking at me, I will kill you.” 

(Ibid.) Banks placed his knee on that employee’s back and was 

attempting to put a zip tie on his wrist when gunshots rang out. 

Banks said, “Shit, we got to go, we got to go,” and the employee 

saw three gunmen struggling to push their way out the front door 

from the anteroom. Since the security guard prevented their exit 

from the outside, the gunmen reentered the lobby and one of 

them shot through a glass window at the side of the anteroom. 

(Ibid.) Since the security guard prevented their exit from the 

outside, the gunmen reentered the lobby and one of them shot 
4

through a glass window at the side of the anteroom. The three 

gunmen continued to push on the door until Banks was able to 

put his arm through the opening and shoot the security guard. 

As the guard fell backwards Banks stepped from behind the door 

and shot the guard in the head. After the gunmen were outside, 

witnesses heard additional gunshots. Defendant fled the area 

with Matthews and Gardiner in Banks’s SUV and later hid from 

the police. (Ibid.)

Defendant’s left palm print was found on the inside of the 

security door to the dispensary. Two handguns, cartridge 

casings, zip ties, and bullet fragments were recovered outside the 

dispensary. Zip ties and a bullet were found in the lobby.

Investigators also found inside the dispensary a medical 

marijuana authorization in Banks’s name with his fingerprint on 

it. A handgun was found on the ground near the victim’s 

outstretched arm, and a second handgun was found on South 

Orange Drive.3 The cartridge cases were determined to have 

been fired from the second gun. (Daniels I, supra, B249088.)

Defendant gave a statement to the investigating detective, 

admitting that Matthews dropped him, Banks and Gardiner at 

the marijuana dispensary that day so they could “score some 

weed.”4 (Daniels I, supra, B249088.) Defendant knew that 

Banks would use a piece of paper to get into the dispensary, and 

once inside defendant went upstairs while Gardiner remained at 

the entrance with the security guard. When defendant heard a 

3 Banks was detained at a location near South Orange Drive, 

less than two blocks from the dispensary. (Daniels I, supra, 

B249088.)

4 The detective testified that the word “score” was slang for 

“steal.” (Daniels I, supra, B249088.)
5

gunshot he ran downstairs, talked to Banks, and then saw 

Gardiner in the lobby. The three of them ran to the exit, 

attempted to open the door by pushing on it, and then defendant 

heard the security guard call for help. Defendant claimed that 

the security guard reached in and fired a gun and Banks fired 

back in self-defense. The three of them then ran outside and as 

defendant ran from the dispensary, he called Matthews, who 

picked them up in Banks’s SUV before they drove away. (Ibid.)

Defendant, Gardiner, and Matthews were members of the 

Rolling 30’s criminal street gang. Banks was a member of the 

Rolling 60’s criminal street gang. A gang expert opined that the 

crimes were committed for the benefit of and in association with 

the Rolling 30’s gang. (Daniels I, supra, B249088.)

Defendant testified that he was addicted to PCP, drank 

alcohol daily, smoked six to seven grams of marijuana daily, and 

consumed cocaine and ecstasy on the weekends. He sold drugs to 

support his habit, and although he was a gang member, he 

denied selling them for the gang’s benefit or giving the gang a cut 

of his proceeds. Defendant smoked marijuana the night before 

the robbery and woke up high the next morning. When he woke 

up he drank two 24-ounce cans of malt liquor and smoked more 

marijuana.5 He then went to his “drug partner” Matthews’s 

home where he met Banks, whom he knew only as Matthews’s 

friend. Defendant denied telling the detective that he knew 

5 An addiction specialist testified that defendant had a 

substance dependence or addiction problem, and that such people 

may develop a tolerance to drugs over time. He opined that such 

a person who ingested the amount of drugs defendant used would 

not necessarily be impaired and “might still be relatively 

functional.” (Daniels I, supra, B249088.)
6

Banks was a Rolling 60’s gang member. (Daniels I, supra, 

B249088.)

Defendant claimed there had been no discussion of a 

robbery and that he did not see any guns or zip ties at 

Matthews’s home. Defendant admitted that he had once been 

“busted” for possessing a gun but claimed that it was for 

protection when there was animosity between the Rolling 30’s 

and Rolling 60’s gangs, and that at the time of the robbery he did 

not regularly carry a gun. Defendant had $30 or $40 to “get 

some” marijuana and mentioned a “pot shop.” (Daniels I, supra, 

B249088.) He had heard some dispensaries would sell the 

marijuana without requiring a card. He denied that he intended 

to rob the dispensary. (Ibid.)

Matthews drove Banks’s SUV to pick up Gardiner and then 

dropped off defendant, Gardiner and Banks in front of the 

dispensary. Banks showed the medical authorization, and the 

three were allowed to go inside. Defendant testified that Banks 

was allowed to go to the back while he and Gardiner remained in 

the front of the dispensary with the security guard. When Banks 

did not return after a few minutes, defendant went to the back 

and upstairs. Defendant denied seeing Gardiner hold a gun to 

the guard’s head or seeing anyone tied up. From upstairs, 

defendant heard a gunshot and then saw two people who had 

been playing chess duck down. Defendant claimed he was 

“shellshocked” and went back downstairs. (Daniels I, supra, 

B249088.) He asked Banks if he heard the gunshot, and said, 

“Man, let’s go.” (Ibid.) Defendant walked to the lobby and saw 

that the guard was blocking the way out, so defendant, Banks 

and Gardiner pushed on the door. Defendant claimed that the 

guard reached in and started shooting, and that he “almost shot 
7

me in my foot.” (Ibid.) Defendant denied he was armed and said 

he did not see Banks shoot the security guard in the head. 

Defendant ran away when he did not see Matthews and met up 

with him after what “seemed like 10 minutes.” (Ibid.)

Defendant denied he intended to commit a robbery and 

claimed he did not have any stolen money or marijuana. When 

he saw a report on television that he was wanted by the police in 

connection with the crimes, he left the neighborhood. Defendant 

was later arrested at his girlfriend’s house where he was found 

under a bed. Defendant claimed not to have been hiding but 

looking for a pacifier. (Daniels I, supra, B249088.)

In April 2019, appellant filed a petition for resentencing 

pursuant to section 1170.95. The trial court appointed counsel 

and received briefing from the prosecutor and defendant’s 

counsel.6 On November 4, 2020, with defendant present in court

with counsel, a petition review hearing pursuant to section 

1170.95, subdivision (a), was held. The trial court heard 

argument from both counsel before the petition was denied.

Defendant filed a timely notice of appeal from the court’s 

order.

6 The record in this appeal contains no brief from petitioner. 

The only brief included in the record is the “People’s 

Supplemental Response to Petition for Resentencing Pursuant to 

Penal Code Section 1170.95,” where it is represented that the 

People filed their initial response on or about June 21, 2019, and 

that defendant filed a “supplemental” brief in support of his 

petition on or about July 21, 2020. At a hearing in January 2020, 

the prosecutor told the court that defendant’s counsel had filed a 

reply.
8

DISCUSSION

Defendant contends that because his petition alleged the 

statutory requirements for relief under section 1170.95, 

subdivision (a), he established a prima facie case. He claims that 

his showing triggered the trial court’s obligation to issue an OSC

and conduct an evidentiary hearing at which the parties could 

offer new or additional evidence relevant to the issue of 

defendant’s eligibility for relief and in which the prosecutor 

would have the burden to show that defendant acted with 

reckless indifference to human life as a major participant as 

those terms were clarified in People v. Banks (2015) 61 Cal.4th 

788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).7

7 Effective January 1, 2019, the Legislature amended the 

laws pertaining to felony murder or murder under the natural 

and probable consequences doctrine, “‘to ensure that murder 

liability is not imposed on a person who is not the actual killer, 

did not act with the intent to kill, or was not a major participant 

in the underlying felony who acted with reckless indifference to 

human life.’ (Stats. 2018, ch. 1015, § l, subd. (f).)” (People v. 

Gentile (2020) 10 Cal.5th 830, 842.) The Legislature also added 

section 1170.95, to give defendants previously convicted of 

murder under those theories a procedure to retroactively seek 

vacatur and resentencing if they could not be convicted under the 

amended laws. A petition for relief must aver: (1) “[a] complaint, 

information, or indictment was filed against [him] that allowed 

the prosecution to proceed under a theory of felony murder or 

murder under the natural and probable consequences doctrine,” 

(2) he “was convicted of first degree or second degree murder 

following a trial,” and (3) he “could not be convicted of first or 

second degree murder because of changes to Section 188 or 189 

made effective January 1, 2019.” (§ 1170.95, subd. (a); see Lewis, 

supra, 11 Cal.5th at pp. 959-960.)
9

The trial court was not required to issue an OSC, as 

defendant contends, simply because his petition alleged the 

statutory requirements under subdivision (a) of section 1170.95. 

Instead, the court was required to proceed as set forth in 

subdivision (c) (People v. Lewis (2021) 11 Cal.5th 952, 960 

(Lewis); see § 1170.95, subds. (b) & (c)), which requires that upon 

the filing of a petition alleging all the required averments, the 

trial court must appoint counsel if requested and entertain 

briefing, regardless of whether the record of conviction 

unequivocally demonstrates that the defendant is not entitled to 

relief. (Lewis, supra, at p. 964.) Then the court may review the 

record of conviction to aid itself in assessing whether a petitioner 

has made a prima facie showing of eligibility for relief under the 

statute. (Id. at pp. 957, 971-972.)

8 Only after the court 

determines that a petitioner has made a prima facie showing 

must it then issue an OSC and schedule a hearing at which the 

prosecution bears the burden of proving beyond a reasonable 

doubt that the petitioner is ineligible for section 1170.95 relief. 

(§ 1170.95, subd. (d)(1) & (3).)

Although the trial court may not engage in factfinding, 

weighing of the evidence, or exercise its discretion in determining 

whether the defendant has made a prima facie showing, the court 

may consider the record of conviction, including the court’s own 

documents and appellate opinion, in order to distinguish 

petitions with potential merit from those that are not. (Lewis, 

8 The Supreme Court has declined to express a view as to 

whether a petitioner is entitled to present new or additional 

evidence at the prima facie stage pursuant to subdivision (c) of 

section 1170.95. (See Lewis, supra, 11 Cal.5th at p. 974, fn. 7.) 

Defendant does not claim that he attempted to do so.
10

supra, 11 Cal.5th at pp. 970-972.) If the record of conviction 

contains established facts refuting the truth of the petition’s 

allegations, the court may find no prima facie showing has been 

made and deny the petition without issuing an OSC. (Id. at 

pp. 970-971.) Here, the trial court followed the procedure set 

forth by section 1170.95, subdivision (c) by appointing counsel 

and entertaining the parties’ briefs. The court then conducted a 

hearing so counsel could argue. The court found defendant was 

ineligible for relief as a matter of law due to the true finding of 

the felony-murder special circumstance. Defense counsel asked 

for an evidentiary hearing to show that defendant did not act 

with reckless indifference. The court declined the request and 

denied the petition. The trial court did not err.

Defendant’s petition alleged that defendant was convicted 

of first degree felony murder but could not now be convicted 

because of the changes to section 189, effective January 1, 2019, 

since he was not a major participant in the crime nor acted with 

reckless indifference to human life. The petition also alleged that 

there had been a prior determination by a court or jury that he 

was not a major participant in the crime or did not act with 

reckless indifference to human life under section 190.2. As the 

trial court had appointed counsel and entertained briefing, it was 

entitled to look to the record of conviction to determine the truth 

of those allegations. (Lewis, supra, 11 Cal.5th at p. 971.) Since

defendant’s jury necessarily found that defendant was a major 

participant in the underlying felony and acted with reckless 

indifference to human life when it found true the special 

circumstance alleged under section 190.2, subdivision (a)(17), the 

allegations in the petition were untrue. Even as amended section 

189 authorizes a murder conviction based on a theory of vicarious 
11

liability if the defendant “was a major participant in the 

underlying felony and acted with reckless indifference to human 

life.” (§ 189, subd. (e)(3).) Thus it is untrue that he “could not be 

convicted of first or second degree murder because of changes to 

Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, 

subd. (a)(3), italics added.)

Defendant argues that the jury’s special circumstance 

finding does not preclude him from relief under section 1170.95 

because he was convicted before the publication of Banks, supra, 

61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, in which the 

California Supreme Court clarified factors to help determine 

whether an aider and abettor was major participant who acted 

with reckless indifference to human life.

In Banks, the California Supreme Court explained that a 

“major participant” in a robbery is someone whose “personal 

involvement” is “substantial” (Banks, supra, 61 Cal.4th at p. 802); 

such a participant “need not be the ringleader” (People v. 

Williams (2015) 61 Cal.4th 1244, 1281), but his involvement must 

be “greater than the actions of an ordinary aider and abettor” 

(Banks, at p. 802). The court held that the totality of the 

circumstances should be examined when evaluating the extent of 

participation and suggested several relevant but not dispositive 

factors to consider: (1) the defendant/aider and abettor’s role in 

planning the robbery; (2) his role in supplying or using lethal 

weapons; (3) his awareness of the “particular dangers posed by 

the nature of the crime, weapons used, or past experience or 

conduct of the other participants”; (4) his presence at the scene of 

the killing and thus whether he was “in a position to facilitate or 

prevent the actual murder”; and (5) his actions after the use of 
12

lethal force. (Banks, at p. 803; see Clark, supra, 63 Cal.4th at

p. 611.)

A defendant acts with reckless indifference to human life 

when he “‘“knowingly engag[es] in criminal activities known to 

carry a grave risk of death.”’” (Banks, supra, 61 Cal.4th at p. 801, 

quoting People v. Estrada (1995) 11 Cal.4th 568, 577, quoting 

Tison v. Arizona (1987) 481 U.S. 137, 157.) This standard “has a 

subjective and an objective” component. (In re Scoggins (2020) 9 

Cal.5th 667, 677 (Scoggins).) To satisfy the subjective 

component, “‘[t]he defendant must be aware of and willingly 

involved in the violent manner in which the [underlying felony] is 

committed,’ and . . . must consciously disregard ‘the significant 

risk of death his or her actions create.’” (Ibid., quoting Banks, at

p. 801.) The key is whether the defendant evinces “a willingness 

to kill (or to assist another in killing) to achieve a distinct aim, 

even if the defendant does not specifically desire that death as 

the outcome of his actions.” (Clark, supra, 63 Cal.4th at p. 617.) 

To satisfy the objective component, the risk of death “‘“must be of 

such a nature and degree that, considering the nature and 

purpose of the [defendant’s] conduct and the circumstances 

known to him . . . , its disregard involves a gross deviation from 

the standard of conduct that a law-abiding person would observe 

in the [defendant’s] situation.”’” (Scoggins, at p. 677, quoting 

Clark, at p. 617.)

Our Supreme Court has identified a number of 

considerations bearing on whether a defendant has acted with 

reckless indifference to human life. “No one of these 

considerations is necessary, nor is any one of them necessarily 

sufficient” (Banks, supra, 61 Cal.4th at p. 803); what matters is 

the totality of the considerations (Scoggins, supra, 9 Cal.5th at 
13

p. 677). The considerations are: (1) “Did the defendant use or 

know that a gun would be used during the [underlying] felony,” 

and, relatedly, “[h]ow many weapons were ultimately used?”; (2) 

“Was the defendant physically present at the crime,” such that he 

had “the opportunity to restrain the crime or aid the victim?”; (3) 

“What was the duration of the interaction between the 

perpetrators of the [underlying] felony and the victims?”; (4) 

“What was the defendant’s knowledge of his . . . confederate’s 

propensity for violence or likelihood of using lethal force?”; and 

(5) “What efforts did the defendant make to minimize the risks of 

violence during the felony?” (Ibid., citing Clark, supra, 63 

Cal.4th at pp. 618-623.)

Defendant contends that because no court has considered 

whether he was a major participant who acted with reckless 

indifference under the clarified Banks and Clark factors, the trial 

court could not have found as a matter of law that he was 

ineligible for resentencing. As we held in People v. Nunez (2020) 

57 Cal.App.5th 78, 92-97 (Nunez), review granted January 13, 

2021, S265918, the prior special circumstance finding renders a 

defendant ineligible for relief under section 1170.95 as a matter 

of law, and “[t]he Banks and Clark decisions provide no basis for 

challenging the jury’s factual finding that [defendant] either 

intended to kill or was a major participant . . . .” (Accord, People 

v. Simmons (2021) 65 Cal.App.5th 739, 746-750, review granted 

Sept. 1, 2021, S270048; People v. Jones (2020) 56 Cal.App.5th 

474, 479-482, review granted Jan. 27, 2021, S265854; People v. 

Allison (2020) 55 Cal.App.5th 449, 457; People v. Gomez (2020) 52 

Cal.App.5th 1, 14-17, review granted Oct. 14, 2020, S264033; 

People v. Galvan (2020) 52 Cal.App.5th 1134, 1141-1143, review 

granted Oct. 14, 2020, S264284.)
14

Defendant disagrees with Nunez, review granted, and the 

line of cases cited above. He argues that the decisions reaching 

the contrary conclusion make a better argument. (See, e.g.,

People v. Arias (2021) 66 Cal.App.5th 987, 1004, review granted 

Sept. 29, 2021, S270555; People v. Pineda (2021) 66 Cal.App.5th

792, 795-796, review granted Sept. 29, 2021, S270513 (Pineda); 

People v. Gonzalez (2021) 65 Cal.App.5th 420, 425, review 

granted Aug. 18, 2021, S269792; People v. Secrease (2021) 63 

Cal.App.5th 231, 236, 247, review granted June 30, 2021, 

S268862 (Secrease); People v. Harris (2021) 60 Cal.App.5th 939, 

956-958, review granted Apr. 28, 2021, S267802; People v. York

(2020) 54 Cal.App.5th 250, 258-263, review granted Nov. 18, 

2020, S264954; People v. Smith (2020) 49 Cal.App.5th 85, 93-94, 

review granted July 22, 2020, S262835; People v. Torres (2020) 46 

Cal.App.5th 1168, 1179-1180, review granted June 24, 2020, 

S262011.)

There is no need to repeat arguments that have been 

thoroughly addressed in the above cited opinions. We stand by 

our analysis in Nunez, review granted, and disagree that the 

opinions stating the contrary view reflect the better argument. 

We thus hold that defendant is unable to make a prima facie case 

for relief under section 1170.95. Moreover, even if we agreed 

with those cases which hold that a pre-Banks and Clark special 

circumstance finding under section 190.2, subdivision (a)(17)

would not preclude defendant from making a prima facie 

showing, we would reject defendant’s argument that the mere 

allegation that he did not act as a major participant with reckless 

disregard for life would be sufficient to make that showing. 

Indeed, defendant cites authority in his opening brief that 

support this point. Defendant cites Secrease, supra, 63 
15

Cal.App.5th 231, review granted, and argues that a petitioner 

can challenge the sufficiency of the evidence to support the 

special circumstance in the section 1170.95 proceeding. (See 

Secrease, at pp. 244-245, 255.) However, as the Secrease court 

made clear, such a challenge would be made in order to 

demonstrate a prima facie case of eligibility, and if successful, the 

trial court would then be obligated to issue an order to show 

cause, but not otherwise. (Id. at pp. 264-265; accord, Pineda, 

supra, 66 Cal.App.5th at pp. 801-802, review granted.) 

Defendant made no such effort to make a showing in the trial 

court. “If as a matter of law the record of conviction shows . . .

that the defendant was a major participant who acted with 

reckless indifference to human life, and the defendant does not 

claim he has new evidence to present, he has not made a prima 

facie case.” (People v. Murillo (2020) 54 Cal.App.5th 160, 173, 

review granted Nov. 18, 2020, S264978.) As defendant made no 

such claim in the trial court and makes no such claim here, the 

trial court did not err.

Moreover, defendant has made no effort to demonstrate 

prejudice. When a court has erroneously denied a petition 

without the issuance of an OSC, the petitioner bears the burden 

to demonstrate resulting prejudice under the standard of People 

v. Watson (1956) 46 Cal.2d 818, 836, by showing a reasonable 

probability of a different result had the court not erred. (See 

Lewis, supra, 11 Cal.5th at p. 974.) Thus, assuming the trial 

court erred in ruling that the special circumstance finding 

rendered defendant ineligible as a matter of law, it is defendant’s 

burden to show a reasonable probability that he would have 

made a prima facie showing of eligibility if the trial court had not 

erred.
16

Some of the courts that have held it is error to deny a 

section 1170.95 petition solely on the basis of the pre-Banks and 

Clark felony-murder special circumstance, also hold that the 

reviewing court may independently review the appellate record to 

determine whether the record is adequate for defendant to make 

a prima facie showing. (Pineda, supra, 66 Cal.App.5th at p. 802, 

review granted; People v. Law (2020) 48 Cal.App.5th 811, 822, 

825-826, review granted July 8, 2020, S262490; see Secrease,

supra, 63 Cal.App.5th at pp. 255, 260-261, review granted [only if 

record is adequate and the issue has been briefed].) Such a 

review may be undertaken to determine prejudice, and if the 

special circumstance was supported by substantial evidence, the 

error is harmless. (See People v. Law, at pp. 825-826.)

Defendant has not included in the appellate record any 

briefs or other documents from the record of conviction that he 

may have submitted in the trial court in an effort to make a 

prima facie showing. The only part of the record of conviction to 

which defendant refers here is the appellate opinion in Daniels I, 

supra, B249088. That opinion is more than adequate to permit a 

harmless error analysis. In addition, since respondent’s brief 

contains a discussion of the Banks and Clark factors as applied to 

the facts contained in the record of conviction, defendant has had 

the opportunity to reply, but failed to address respondent’s 

analysis. Defendant’s reply is essentially an argument that the 

trial court should have issued an OSC and held an evidentiary 

hearing at which the prosecutor would have the burden to show 

beyond a reasonable doubt that defendant acted with reckless 

indifference to human life as a major participant as those terms 

were clarified in Banks and Clark.
17

We agree with respondent that the record of conviction 

establishes that defendant was a major participant who acted 

with reckless indifference to life under the clarifying factors set 

forth in Banks, supra, 61 Cal.4th at page 803 and Clark, supra, 

63 Cal.4th at page 611. Defendant had a major role in planning 

the crime. He testified that he was the one who suggested 

getting marijuana from a medical dispensary and mentioned 

particular dispensaries that did not require medical 

authorization to enter. He told the detective that he went with 

the others intending to steal (“score”) marijuana. He entered the 

dispensary, went to the loft, pointed a gun at an employee and 

demanded the marijuana. Defendant displayed a reckless 

indifference to life. He was armed and knew that his accomplices 

were armed, as Banks and either defendant or Gardiner entered 

with guns drawn. He was doubtless familiar with guns, having

admitted that he sometimes carried a gun on his person for 

protection, and thus knew of the danger when he pointed a gun 

at an employee. After hearing the gunshot from downstairs, 

defendant assisted his accomplices in pushing their way out of 

the dispensary and was next to Banks while the security guard 

was pushing back at the door. Defendant was therefore present 

and in a position to prevent the murder but did not. After Banks 

fired the first shot at the guard, defendant ran out and away 

without any regard for the victim. (Daniels I, supra, B249088.)

As defendant makes no claim to have any new evidence on 

this issue, he has failed to demonstrate a reasonable probability 

that he would be able to make a prima facie showing of eligibility 

despite the evidence in the record of conviction supporting the 

special circumstances under the guidelines of Banks and Clark. 
18

We conclude that the trial court did not error, but if it had, the 

error would be harmless.

DISPOSITION

The order denying the section 1170.95 petition is affirmed.

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CHAVEZ, J.

We concur:

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ASHMANN-GERST, Acting P. J.

_______________________________

HOFFSTADT, J.