People v. Banks CA5

Filed 4/28/21 P. v. Banks CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F079203 Plaintiff and Respondent, (Super. Ct. No. BF109478B) v.

NATHAN BANKS, SR., OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Kern County. Michael G. Bush, Judge. David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, as Amicus Curiae on behalf of Defendant and Appellant. Cynthia J. Zimmer, Kern County District Attorney, and Terrance C. McMahon, Deputy District Attorney, for Plaintiff and Respondent. -ooOoo-

* Before Smith, Acting P.J., Meehan, J. and Snauffer, J.

Defendant Nathan Banks, Sr., was convicted of special-circumstance murder during the commission of a residential burglary and robbery and sentenced to life without the possibility of parole.1 He filed a petition for resentencing, pursuant to Penal Code section 1170.95,2 based upon the changes to the felony-murder rule and the natural and probable consequences doctrine of aider and abettor liability effectuated by Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437). The trial court dismissed his petition, concluding that Senate Bill 1437 was unconstitutional. On appeal, defendant contends the trial court’s decision was error. The People disagree, but the Attorney General has filed an amicus brief in support of defendant’s position. We agree with defendant. Accordingly, we reverse the order and remand this matter for further proceedings pursuant to section 1170.95. PROCEDURAL SUMMARY On March 25, 2005, the Kern County District Attorney filed an information charging defendant and a codefendant with conspiracy to commit first degree robbery (§§ 182, subd. (a)(1), 212.5, subd. (a); count 1); murder of Louis Steele (§ 187, subd. (a); count 2) with burglary and robbery special circumstances (§ 190.2, subd. (a)(17)(A), (a)(17)(G)); attempted murder (§§ 187, subd. (a), 664; count 3); first degree robbery (§ 212.5, subd. (a); count 4); and being a felon in possession of a firearm (former § 12021; count 5). The information further alleged that defendant personally used a firearm (§ 12022.53, subd. (b)) in the commission of counts 1 through 4 and had served two prior prison terms (§ 667.5, subd. (b)). A jury found defendant guilty on counts 1, 2, 4, and 5, and found all special allegations related to those offenses true.