People v. Mackabee CA2/4

INTRODUCTION

Appellant Marcel Maurice Mackabee appeals from the denial of his petition for resentencing under Penal Code 1 section 1170.95. In 2013, a jury convicted appellant of felony murder and found true a robbery-murder allegation under section 190.2 (the special circumstance statute). The jury was not instructed on the special circumstance statute’s requirement that the defendant at least have been a major participant in the underlying felony and have acted with reckless indifference to human life. (See § 190.2, subds. (b)- (d).) We affirmed the judgment. (People v. Mackabee (June 20, 2014, B250143) 2014 Cal.App.Unpub. LEXIS 4355 (Mackabee I).) Our Supreme Court later 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), each of which articulated factors bearing on the major-participant and reckless- indifference determinations. In 2018, appellant filed a petition for a writ of habeas corpus, contending the special circumstance finding was invalid because the trial record did

1 Undesignated statutory references are to the Penal Code.

2 not contain any substantial…