People v. Bernal CA4/1

INTRODUCTION

Franko Bernal appeals from the summary denial of his petition to

vacate one of two first degree murder convictions under Penal Code1 section 1170.95. The trial court found he was not entitled to relief, as a matter of law, because the jury returned a true finding on a robbery-murder special circumstance with the murder conviction. The jury’s finding on the special circumstance was made prior to the California Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which decisions clarified the meaning of the terms “major participant” and “reckless indifference to human life” necessary to support such felony-murder special circumstance findings. (Banks, at pp. 797–798, 803; Clark, at pp. 608–624.) The California Supreme Court is currently reviewing the question of whether a felony-murder special circumstance finding made before Banks and Clark precludes a defendant from making a prima facie showing of eligibility for relief under section 1170.95. (People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review granted Mar. 10, 2021, S266606.) Until then, we follow this court’s decisions in People…