People v. Felix CA4/1

INTRODUCTION

This appeal is from the summary denial of a petition for resentencing

under Penal Code1 section 1170.95. The trial court based the summary denial of the petition on the original jury conviction of first degree murder with a robbery murder special circumstance. The trial court found the true finding on the special circumstance made the petitioner ineligible for relief as a matter of law. We recognize there is disagreement among the Courts of Appeal on how to deal with such special circumstances findings when a petition for resentencing is at the prima facie stage of review when the findings were made prior to the clarification our Supreme Court made in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). The court, in those cases, redefined the requirements to show an aider and abettor was a major participant in the crime and acted with reckless indifference to human life in order to apply the special circumstance allegation to that person. We conclude it is improper to deny a 1170.95 petition at the prima facie stage of review based only on special circumstance findings made prior to the opinions in Banks and Clark. We…