People v. Nunez-Sharp CA2/4

INTRODUCTION

Appellant Diego Nunez-Sharp appeals from the denial of his petition for resentencing under Penal Code section 1170.95 (Section 1170.95). In 2015, a jury convicted appellant and a codefendant of one count of first degree murder, and found true an allegation that the murder was committed in the commission of a robbery, requiring findings that appellant was at least a major participant in the robbery and acted with reckless indifference to human life within the meaning of Penal Code section 190.2, subdivision (d) (the special circumstance statute). During the pendency of appellant’s direct appeal, our Supreme Court clarified the meaning of the special circumstance statute in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). After Banks and Clark were issued, we affirmed the judgment in an unpublished opinion. (People v. Nunez-Sharp (Mar. 15, 2017, B264843) 2017 Cal.App.Unpub. LEXIS 1787 (Nunez-Sharp).) We held that the special circumstance finding was supported by substantial evidence that appellant was a major participant

2 in the robbery and acted with reckless indifference to human life under Banks. (Id. at *55-*58.)…