California Court of Appeal Dec 10, 2020 No. E074390Unpublished
Filed 12/10/20 P. v. Banks CA4/2
See dissenting 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E074390
v. (Super.Ct.No. RIF080665)
CLYDE SHIRONE BANKS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Christine Vento, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On February 21, 2001, a second amended information charged defendant and
appellant Clyde Shirone Banks and codefendant Jason Latrell Thomas1 with first degree
murder under Penal Code2 section 187 (count 1) and attempted robbery under sections
664 and 211. As to both counts, the information also alleged that defendant personally
1 Codefendant Thomas is not a party to this appeal.
2 All statutory references are to the Penal Code unless otherwise specified.
3Defendant and Thomas both appealed. On October 8, 2002, we affirmed the judgment in an unpublished opinion in case No. E029239. (People v. Banks, supra, 2002 Cal.App.Unpub.LEXIS 9374, [45].)
2
Almost 17 years later, on September 6, 2019, defendant filed a petition for
resentencing under section 1170.95. On December 13, 2019, after a hearing on the
motion wherein defendant was represented by counsel, the trial court denied the petition.
On December 23, 2019, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY4
“On April 9, 1998, at 10:00 p.m., Rodney Martin (Martin), then 31 years old,
drove to the Hunt Club apartments in Perris with his brother, Troy Petterway (Petterway),
then 26 years old. Martin and Petterway drove into a carport area and stepped out of the
car. Thomas then approached Petterway on the passenger’s side of the car and asked for
a cigarette.
“Petterway knew Thomas, thought there might be a fight, and kept his attention on
Thomas. Petterway then saw ‘two other guys’ approach Martin on the driver’s side of the
car. He identified one of the two other guys as Banks, but could not identify the other. [5]
Either Banks or the person standing near him said, ‘Break yourself,’ which meant, ‘This
is a robbery.’
“Martin told Banks to ‘get out of his face’ and swung at him. Banks then pulled a
gun out of his jacket and started shooting. Martin said, ‘Run,’ and Petterway ran. As
4 The facts are taken from our opinion in the prior appeal in case No. E029239.
5“Petterway also told the police that there may have been a fourth person who approached him, with Thomas, on the passenger’s side of the car. Petterway identified Thomas and Banks, but could not identify either of the other two persons.”
3
Petterway ran, he heard Thomas yell ‘Outlaw.’ Within minutes, Martin died of multiple
gunshot wounds.
“Petterway testified that as he was running from the scene he heard several shots
fired, with a pause in between. William Owens (Owens), the maintenance supervisor at
the apartments and a former weapons instructor in the Marines, also heard two sets of
shots fired, with a pause in between. Owens said that the pause was ‘like somebody was
changing a magazine.’
“Thomas’s brother, Malik Swanigan (Swanigan), testified that he was in an
upstairs apartment when he heard shots being fired. He ran out of the apartment and
halfway down the staircase. From there, he saw Banks shooting Martin. He then saw
Thomas take the gun from Banks and shoot Martin several times. (Fn. omitted.)
“After the shooting, Swanigan and Thomas went to see Swanigan’s girlfriend,
Nina Burton, in Sun City. Burton told the police that the morning after the shooting she
overheard Thomas on the telephone bragging that he had shot Martin.
“Several days after the shooting, Swanigan and Thomas went to visit [Lisa] Rufus
in Bellflower. There, Thomas confessed to Rufus that he shot Martin, and made
additional statements that incriminated Banks.”
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of
the case, a summary of the facts, and potential arguable issues, and has requested this
4
court to undertake a review of the entire record. Pursuant to Anders, counsel identified
the following issue to assist the court in its search of the record for error: “Did the court
err in concluding that Banks failed to establish a prima facie case for relief because his
jury found true the murder/robbery special circumstance?”
We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so.
We recognize that in People v. Cole (2020) 52 Cal.App.5th 1023, Division Two of
the Second Appellate District held “that Wende’s constitutional underpinnings do not
apply to appeals from the denial of postconviction relief.” (Id. at p. 1028.) We have “no
independent duty to review the record for reasonably arguable issues,” and when a
defendant fails to file a supplemental brief, “the Court of Appeal may dismiss the appeal
as abandoned.” (Id. at p. 1039, italics added.) Recently, in People v. Flores (2020) 54
Cal.App.5th 266 (Flores), our colleagues in Division Three of the Fourth Appellate
District held “that when an appointed counsel files a Wende brief in an appeal from a
summary denial of a section 1170.95 petition, a Court of Appeal is not required to
independently review the entire record, but the court can and should do so in the interests
of justice. This is a pure question of law, so our review is de novo.” (Id. at p. 269.) The
Flores court went on to reiterate that “while we agree with the primary holding in Cole—
that we are not required to conduct an independent review of the record because this is
not defendant’s first appeal as a matter of right—we have found no legal authority that
prohibits us from doing so in the interests of justice.” (Id. at p. 273.) We agree with our
colleagues in Flores.
5
“There are three well-established ‘due process’ criteria that are helpful to courts
when establishing procedures in the interests of justice: ‘They are (1) “the private
interests at stake,” (2) “the government’s interests,” and (3) “the risk that the procedures
used will lead to erroneous decisions.” ’ ” (Flores, supra, 54 Cal.App.5th at pp. 273-
274.)
As noted by the court in Flores, “[i]n an appeal from a denial of a section 1170.95
petition, the private interests at stake are the liberty interests of the person who may be in
custody and seeking release. [Citation.] The government’s interests are the appellate
court’s interests in making sure there was a correct ruling in the trial court, while
balancing fiscal and administrative concerns. [Citation.] And finally, the risk of an
erroneous ruling is present if appointed counsel failed to identify a meritorious
(reversible) issue on appeal, and the appellate court also failed to identify that issue by
failing to conduct an independent review.” (Flores, supra, 54 Cal.App.5th at p. 274.)
The court went on to state that “[w]hen we weigh the paramount liberty interests of the
petitioner, the modest fiscal and administrative burdens to the courts, and the possible
(while presumably low) risk of a petitioner’s unlawful incarceration due to an unreviewed
meritorious issue on appeal, we lean toward caution. That is, although it is not required
under law, we think an appellate court can and should independently review the record on
appeal when an indigent defendant’s appointed counsel has filed a Wende brief in a
postjudgment appeal from a summary denial of a section 1170.95 petition (regardless of
whether the petitioner has filed a supplemental brief.)” (Ibid.)
6
We agree with Flores that dismissal is discretionary, and that we can and should
independently review the record on appeal in the interests of justice. (Conservatorship of
Ben C. (2007) 40 Cal.4th 529, 544, fn. 8.)
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 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,
which established a procedure for vacating murder convictions 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 felony 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 doctrine as a
basis for murder liability, and added a requirement for felony murder that a defendant must have
7
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.)
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 showing 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 petition
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.” (§ 1170.95, subd. (c).)
If the court 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 ineligible for resentencing.
(§ 1170.95, 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.)
8
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, supra, 43 Cal.App.5th at p. 1137, quoting Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 841.)
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
record 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 DEFENDANT’S PETITION
1. THE PROPER VEHICLE TO CHALLENGE A FELONY-MURDER
SPECIAL CIRCUMSTANCE 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 degree 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 with the intent to kill in aiding, abetting, counseling, commanding, inducing,
soliciting, requesting, or assisting in first degree 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-
9
murder special circumstance applies. [Citation.] Thus, the jury’s special circumstance finding
shows as a matter of law that [defendant] could still be convicted of felony murder under the new
definition, and prevents [defendant] from making a prima facie case that he is eligible for
resentencing.” (Murillo, supra, 54 Cal.App.5th at p. 167.)
Two recent cases 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
(dis. opn. of Menetrez, J.).) But in the absence of a valid case-specific reason for
conducting such a review, doing so would constitute a misuse of judicial resources and an
abuse of discretion. (Id. at pp. [9]-[14] (dis. opn. of Menetrez, J.).)
Appellant’s counsel filed an opening brief raising no issues, and appellant was
notified but did not file a supplemental brief. There is no case-specific reason for us to
read the whole record to look for grounds for reversal. We consequently should not
affirm but rather should dismiss the appeal as abandoned. (Serrano, 211 Cal.App.4th at
pp. 503-504; Cole, 52 Cal.App.5th at pp. 1039-1040.) I therefore respectfully dissent.
MENETREZ J.
2
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant who personally used a firearm and shot the victim during a robbery is ineligible for resentencing under Penal Code section 1170.95, as the jury's true finding on the felony-murder special circumstance establishes the defendant's culpability as a matter of law. Furthermore, the court held that a petition for writ of habeas corpus, rather than a section 1170.95 petition, is the proper procedural vehicle to challenge a felony-murder special circumstance.
Issues
Did the trial court err in denying the section 1170.95 petition based on the jury's true finding of a felony-murder special circumstance?
Is a petition for writ of habeas corpus the exclusive remedy for challenging a felony-murder special circumstance?
Does the evidence support the special circumstance finding under the standards established in People v. Banks and People v. Clark?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“the jury’s special circumstance finding shows as a matter of law that [defendant] could still be convicted of felony murder under the new definition, and prevents [defendant] from making a prima facie case that he is eligible for resentencing.”
“we are not aware of a single case that concludes a defendant who personally committed a robbery, used a gun, and actually shot the victim did not meet the standard in section 190.2, subdivision (d).”