P. v. McLaurin

Filed 7/9/20 P. v. McLaurin CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY D. MCLAURIN et al.,
Defendants and Appellants.
B296078
(Los Angeles County
Super. Ct. No. TA125019)
THE PEOPLE,
Plaintiff and Respondent,
v.
DEVIN LAMONT LEWIS,
Defendant and Appellant.
B298820
ORDER MODIFYING
OPINION
[There is no change in judgment]
In re ANTHONY D. MCLAURIN
on Habeas Corpus.
B299314
BY THE COURT:
It is ordered that the opinion filed herein on July 6, 2020 is modified as follows:
On the caption page, delete “DEVON” and replace it with “DEVIN”.
There is no change in judgment.
______________________________________________________________________
RUBIN, P. J. BAKER, J. KIM, J.

-- 1 of 27 --

Filed 7/6/20 P. v. McLaurin CA2/5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY D. MCLAURIN et al.,
Defendants and Appellants.
B296078
(Los Angeles County
Super. Ct. No. TA125019)
THE PEOPLE,
Plaintiff and Respondent,
v.
DEVON LAMONT LEWIS,
Defendant and Appellant.
B298820
In re ANTHONY D. MCLAURIN
on Habeas Corpus.
B299314
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
Petition granted.

-- 2 of 27 --

2
APPEAL from orders of the Superior Court of Los Angeles
County, Michael J. Shultz, Judge. Reversed and remanded with
direction.
Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant Anthony D. McLaurin.
Joanna McKim, under appointment by the Court of Appeal,
for Defendant and Appellant Paul Jordan.
Waldemar D. Halka, under appointment by the Court of
Appeal, for Defendant and Appellant Devin Lamont Lewis.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews, Rama R. Maline, Idan
Ivri and Allison H. Chung, Deputy Attorneys General, for
Plaintiffs and Respondents.
______________________
INTRODUCTION
In 2013, three defendants, Anthony McLaurin, Paul
Jordan, and Devin Lewis, were each convicted of two counts of
special circumstances felony murder, and other crimes, arising
out of a commercial robbery gone wrong. (Pen. Code, §§ 187,
subd. (a), 190.2, subd. (a)(17)).1 Each was sentenced to life in
prison without the possibility of parole (LWOP) and additional
determinate terms. Although a principal armed allegation was
found true (§ 12022, subd. (a)(1)) and Jordan and Lewis were also
convicted of felon in possession of a firearm (fmr. § 12021,
1 All further statutory references are to the Penal Code,
unless otherwise stated.

-- 3 of 27 --

3
subd. (a)(2)), the jury made no specific findings as to which
defendant, if any, was the actual killer of either of the two
murder victims.2 It is unclear whether Jordan and Lewis were
convicted under theories of direct liability or aider and abettor
liability. McLaurin was, at most, a lookout who did not enter the
business at the time of the robbery. He was convicted as an aider
and abettor.
We affirmed the convictions of all three defendants in a
nonpublished opinion, People v. McLaurin (Apr. 7, 2015, B250278
[nonpub. opn.]), in which, among other things, McLaurin had
argued there was insufficient evidence to support his guilt. The
Supreme Court granted a petition for review of defendants
McLaurin and Jordan only, and transferred the matter to us for
reconsideration of certain unrelated sentencing issues. We
modified the sentences in ways that did not affect the LWOP
terms, and otherwise adopted our prior opinion by reference.
(People v. McLaurin (Dec. 21, 2015, B250278 [nonpub. opn.].)
Two developments unaddressed in either of our two
previous opinions intervened. At the time of defendants’
convictions, the felony murder special circumstance required a
finding that the defendant, if not the actual killer or one who
acted with intent to kill, was a major participant in the felony
who acted with reckless indifference to human life. (§ 190.2,
subd. (d).) The defendants’ jury had been instructed on this
point. Subsequent to the convictions, our Supreme Court in
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark) clarified the law of aider and
abettor liability for the felony murder special circumstance, more
2 Other individuals were involved in the commission of the
robbery but were tried separately.

-- 4 of 27 --

4
narrowly construing “major participant” and “reckless
indifference” to satisfy constitutional minimums.3
The second intervening change in the law occurred in 2018.
The Legislature adopted Senate Bill No. (SB) 1437 which, among
other things, amended the felony-murder rule. (People v.
Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo) review
granted Mar. 18, 2020.) Specifically, SB 1437 amended section
189 to provide that an aider and abettor cannot be convicted of
felony murder unless the defendant acted with the intent to kill
or was a major participant who acted with reckless indifference
to human life. In other words, SB 1437 incorporated into felony
murder the requirements previously adopted by the Supreme
Court in Banks and Clark for the felony-murder special
circumstance. (§ 189, subd. (e).) SB 1437 also enacted a new
statutory procedure, codified in section 1170.95, by which a
defendant convicted of murder under the felony-murder rule
could seek resentencing under the new, narrower, version of the
law.4
All three defendants filed petitions for resentencing under
section 1170.95. The petitions were summarily denied on the
basis that the felony-murder special circumstance was found to
3 Banks was issued after our first opinion, which had
addressed McLaurin’s sufficiency of the evidence argument but
applied the law as it existed prior to Banks. We did not address
Banks in our second opinion because the Supreme Court limited
its remand to an unrelated sentencing issue on the determinate
terms. Clark was filed after both our opinions.
4 SB 1437 and section 1170.95 apply to both felony murder
and murder based on the natural and probable consequences
theory. The LWOP murder convictions here were based solely on
felony murder.

-- 5 of 27 --

5
be true with respect to each defendant for both murders.
Defendants appeal, arguing that, in light of Banks and Clark, the
true findings on the special circumstances in 2013 do not satisfy
the requirements of SB 1437. In addition, McLaurin filed a
petition for habeas corpus, arguing that, under Banks and Clark,
there is no longer sufficient evidence to support the felony-
murder special circumstance findings against him.
We first consider McLaurin’s habeas petition and conclude
his felony-murder special circumstances must be vacated. We
also reverse the denial of his section 1170.95 resentencing
petition. We next consider the appeals of Jordan and Lewis of
the denials of their section 1170.95 petitions. We conclude that
the pre-Banks and Clark special circumstances findings do not
necessarily preclude relief under section 1170.95, and reverse the
summary denials of their petitions as well.
FACTUAL AND PROCEDURAL BACKGROUND5
1. The Robbery
On April 5, 2010, around 8:00 p.m., a group of armed men
entered an automotive shop known as Custom City, where they
committed multiple robberies and killed two people.
The day before the robberies, at least eight men, including
the three defendants, met at a shed at Jordan’s home to discuss a
planned robbery at a different location – the home of a Custom
City employee. They discussed how the men should enter the
residence and that the occupants were to be tied up. One of the
men, Jordan’s brother, gave three of the others (none of them
appellants here) a backpack containing three guns. Those three
proceeded to the home of the target, but when they were waiting
5 Our discussion of the facts is taken primarily from our first
opinion in the appeal. (People v. McLaurin, supra, B250278.)

-- 6 of 27 --

6
outside the home, they received a phone call saying that
something had come up and the robbery plans were called off for
the night.
The next day, a couple hours before the eventual robberies,
McLaurin went to Custom City. The facts would show that a
number of people socialized at Custom City – both employees of
the shop and their friends. One of those men was Johnny
Williams. When McLaurin went to Custom City, he told the
people present that Johnny Williams had just been released from
jail. McLaurin said, “We’re going to party,” and picked up a
tequila bottle. One of the men there replied, “That’s my bottle.”
McLaurin put the bottle down and left.
Later that day, the same people who had planned the
cancelled robbery the day before gathered at Jordan’s house to
discuss plans for a new robbery, now to take place at the Custom
City shop. Jordan’s brother told some of those present to get
some duct tape and latex gloves and that they would be tying
people up.
Everyone in the group but McLaurin drove to the area of
Custom City in three vehicles and parked near the location. One
conspirator told another that McLaurin was the inside man on
the job and it might be necessary to tie him up. However, the
facts would show that McLaurin was not inside Custom City at
the time of the robbery. Phone records would, however, place
him in the area.
Prior to the robbery, one of the men opened the backpack
containing the guns and weapons were distributed. Jordan took
a .22 caliber sawed-off rifle and Lewis took a .38-caliber handgun.
Two other robbers also armed themselves with handguns.
There were at least nine people already in Custom City
when the robbers entered – two in the front, in the shop; five in
the middle, watching television; and two near the back door.

-- 7 of 27 --

7
At around 8:00 p.m., Lewis and Jordan entered from the
back. They asked one of the men if they could buy some
marijuana. When the man replied that he did not have any to
sell, either Lewis or Jordan started to pull out a gun. The victim
shoved one of them and hid. He heard a gunshot.
Lewis and Jordan proceeded to the front of the business;
they were joined by a third armed man. The two victims in the
front of the shop tried to flee, but Jordan stopped them. One of
those men, Melvin Hoard, had been the man who was the target
of the aborted robbery the previous day. Jordan put his gun in
Hoard’s face and demanded money. Hoard gave him money,
saying, “Don’t kill me.” Jordan pulled the trigger of his gun, but
it did not fire, apparently because the safety was on. Jordan
tried to take the safety off.
Sounds of arguing and fighting came from the back.
Jordan went in that direction. Hoard and the other victim from
the front of the shop fled out the front door. They heard
gunshots, from different guns, as they ran.
One of the men in the back of the store, Vance Dean, was
shot and killed; he died from a gunshot wound to the head.
Another victim, who had been watching television, Mark
Richardson, was shot in the back, but managed to run out the
back door. A man ran by Richardson, and he was shot a second
time, but survived.
The victims remaining in the middle room heard gunshots
and tried to hide. One of them, Lejon Robins, had a gun. He
fired it, but it either jammed or ran out of ammunition. Robins
was shot in the head and later died of his wounds.
While the victims were hiding, Jordan and Lewis entered
the room. Jordan took money from Robins’s pocket. Jordan and
Lewis took money and property from two of the other robbery

-- 8 of 27 --

8
victims. A third man appeared and said, “We killed another [n-
word]. Let’s go.” Jordan and Lewis left.
Johnny Williams, McLaurin’s friend who had just been
released from jail and had come to Custom City to pick up his
car, hid in a back room when the shooting began. After the
armed men had fled, Williams received a call from McLaurin.
McLaurin asked where he was and what was going on. McLaurin
also asked him if he was okay.
A witness arrived at Custom City after 8:00 p.m., intending
to pick up one of the victims. She saw Lewis, Jordan and two or
three other men run out of the back door of the business and get
into a van. Two of the men had guns.
After a police chase, Jordan, Lewis and some of the others
were captured. Several of the victims identified Jordan and
Lewis in a field show up. Jordan and Lewis each tested positive
for gunshot residue.
Police obtained cell phone records from McLaurin and
Jordan. Records from McLaurin’s phone showed that he made a
call to Jordan’s phone at 6:49 p.m., about an hour before the
robbery started. The call connected through a cell tower 130
yards from Custom City. The call lasted 10 minutes. Jordan’s
phone did not use a cell tower near Custom City. McLaurin
again called Jordan from the Custom City area at 7:35 p.m. This
time, Jordan’s phone used a cell tower near Custom City. The
call lasted over 26 minutes, ending at about 8:02 p.m. At
8:09 p.m., 8:10 p.m. and 8:22 p.m., McLaurin called Johnny
Williams. These calls connected through cell towers that were
southeast of Custom City, and show McLaurin was moving away
from the store.
At trial, Jordan testified in his own behalf, claiming that he
was not present at the Custom City robberies at all, and had been
arrested by the police when he was simply walking around

-- 9 of 27 --

9
looking for his brother. Lewis did not testify, but offered a brief
defense that two of the witnesses had failed to identify him at
another trial related to the Custom City crimes. McLaurin did
not present any witnesses or any evidence in his defense.
2. The Convictions
All three defendants were found guilty of two counts of
murder, one count of attempted murder (§§ 664, 187), five counts
of second degree robbery (§ 211), and one count of assault with a
firearm (§ 245, subd. (a)(2)). The jury found true the special
circumstance allegations that both murders were committed
during the commission of a robbery.
3. The Prior Appeal
As relevant to these proceedings, in the prior appeal,
McLaurin argued there was insufficient evidence he aided and
abetted, or conspired to commit, any of the crimes. A different
panel of this division concluded that there was. We particularly
relied on evidence that McLaurin was present at the planning
sessions, that one of the criminals believed that McLaurin was to
be the inside man for the robbery, that McLaurin had gone to
Custom City on the afternoon of the robbery, and that his cell
phone records showed him in the area and conversing with
Jordan up until the robbery began. We held: “The timing of
McLaurin’s movements and phone calls to Jordan support a
reasonable inference that McLaurin was acting as a scout, look-
out or inside person for the robberies. This is sufficient to prove
he aided and abetted the robberies and was a member of a
conspiracy to commit the robberies. He was an integral part of
the robberies and so ‘under the felony-murder rule, guilty of
murder’ as well. [Citation.]” (People v. McLaurin, supra,
B250278, p. 15.)
We did observe that one piece of evidence did not provide
support that McLaurin conspired to commit the crimes.

-- 10 of 27 --

10
Specifically, various items recovered in connection with the
investigation had been tested for DNA. One of those items was
the backpack which had contained guns. A swab from the
backpack’s zipper contained a mixture of DNA with McLaurin
being a possible contributor. The jury had been instructed that a
potential overt act in support of the conspiracy was that
McLaurin had provided the backpack. The only evidence linking
McLaurin with the backpack was the DNA evidence. We
concluded this was insufficient to support the instruction on this
particular overt act, explaining, “There was DNA from two other
people on the zipper and from at least two more people on the
backpack strap, and there was no way to know when McLaurin
contributed his DNA. Any one of those four other people could
have provided the backpack to the conspirators. The mere fact
that McLaurin touched the backpack at some point does not
support an inference that he provided the backpack to the
conspirators.” (Id. at p. 18.)
4. The Section 1170.95 Petitions
A. Jordan
On January 7, 2019, Jordan, without a lawyer, filed a
petition seeking resentencing under section 1170.95. It was a
form petition, and he checked the boxes on the form claiming that
he had been convicted of first-degree murder under a theory no
longer viable following SB 1437. He marked another box
claiming that there “has been a prior determination by a court or
jury that [he] was not a major participant and/or did not act with
reckless indifference to human life” under section 190.2,
subdivision (d).
On January 30, 2019, the trial court summarily denied his
petition on the basis that, contrary to Jordan’s assertion in his
petition, the jury’s felony-murder special circumstance finding
was, in fact, a finding that Jordan was a major participant who

-- 11 of 27 --

11
had acted with reckless indifference. Jordan filed a timely notice
of appeal.
B. McLaurin
On January 22, 2019, McLaurin, also without counsel, filed
a similar petition making the same assertions. On March 15,
2019, the court denied his petition for the same reason.
McLaurin filed a timely notice of appeal.
C. Lewis
On February 19, 2019, Lewis, also self-represented, filed
his petition under section 1170.95. Unlike his codefendants, he
did not claim a prior finding that he was not a major participant
acting with reckless indifference.
On May 13, 2019, the trial court denied his petition. As
with McLaurin and Jordan, the court concluded that Lewis’s
prior special circumstance finding precluded relief. The court
also independently concluded that Lewis had been a major
participant acting with reckless indifference, based on the facts
as set forth in our prior appellate opinion. Lewis filed a timely
notice of appeal.
5. McLaurin’s Habeas Petition
On July 25, 2019, McLaurin filed a petition for writ of
habeas corpus in this court on the ground that Banks and Clark
required a reevaluation of his special circumstance findings. On
August 16, 2019, we issued an order directing the Secretary of
the Department of Corrections and Rehabilitation to show cause
in this court why the petition should not be granted. We also
advised the parties that we would consider the habeas petition at
the same time as the section 1170.95 appeals.
DISCUSSION
1. McLaurin’s Habeas Corpus Petition
A. Standard of Review
“The standard of review for a sufficiency of the evidence

-- 12 of 27 --

12
claim as to a special circumstance is whether, when evidence that
is reasonable, credible, and of solid value is viewed ‘in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the allegation beyond a
reasonable doubt.’ [Citations.] The standard is the same under
the state and federal due process clauses. [Citation.] We
presume, in support of the judgment, the existence of every fact
the trier of fact could reasonably deduce from the evidence,
whether direct or circumstantial. [Citation.]” (Clark, supra,
63 Cal.4th at p. 610.)
B. Insufficient Evidence of Special Circumstances
McLaurin contends there is insufficient evidence to support
the special circumstance findings in light of Banks and Clark.
We agree.
The penalty for first-degree special-circumstances murder
under section 190.2, subdivision (a), is either death or LWOP.
One of the enumerated special circumstances is that the murder
was carried out while the defendant was engaged in, or was an
accomplice in, the commission of a felony, including robbery.
(§ 190.2, subd. (a)(17)(A).) Where the defendant was not the
actual killer, but an aider and abettor, section 190.2 requires a
further showing that the defendant was “a major participant in
the crime” and acted “with reckless indifference to human life.”
(§ 190.2, subd. (d).)6
In Banks, our Supreme Court considered for the first time
what it means to be a “major participant” and to act with
6 If the defendant was not the actual killer, but an aider and
abettor, section 190.2 also permits a special circumstances
finding if the evidence shows the defendant’s “intent to kill.”
(§ 190.2, subd. (c).)

-- 13 of 27 --

13
“reckless indifference to human life” in the context of felony
murder. (Banks, supra, 61 Cal.4th at p. 794.) Banks stated that
the language of section 190.2, subdivision (d) “imposes both a
special actus reus requirement, major participation in the crime,
and a specific mens rea requirement, reckless indifference to
human life.” (Id. at p. 798.) The court explained that this special
circumstance statute was designed to codify the constitutionally-
based holdings of Tison v. Arizona (1987) 481 U.S. 137 (Tison),
and Enmund v. Florida (1982) 458 U.S. 782 (Enmund), each
representing opposite ends on a spectrum that describes an aider
and abettor’s personal role in the felony leading up to the
murder. (Banks, at p. 802.) Somewhere in the middle of these
two authorities “lies the constitutional minimum for death
eligibility.”7 (Ibid.)
To establish the major participant requirement, “a
defendant’s personal involvement must be substantial, greater
than the actions of an ordinary aider and abettor to an ordinary
felony murder.” (Banks, supra, 61 Cal.4th at p. 802.) As to the
reckless indifference requirement, the defendant must “be aware
of and willingly involved in the violent manner in which the
particular offense is committed, demonstrating reckless
indifference to the significant risk of death his or her actions
create.” (Id. at p. 801.) Banks identified the following factors
that may play a role in determining whether a defendant is a
“major participant” within the meaning of section 190.2,
subdivision (d): “What role did the defendant have in planning
7 Although developed in death penalty cases, the
constitutional standards articulated by our Supreme Court apply
equally to cases involving statutory eligibility for LWOP under
section 190.2, subdivision (d). (Banks, supra, 61 Cal.4th at
p. 804.)

-- 14 of 27 --

14
the criminal enterprise that led to one or more deaths? What role
did the defendant have in supplying or using lethal weapons?
What awareness did the defendant have of particular dangers
posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did
the defendant do after lethal force was used?” (Banks, at p. 803,
fn. omitted, Clark, supra, 63 Cal.4th at p. 611.) Banks cautioned,
“No one of these considerations is necessary, nor is any one of
them necessarily sufficient. All may be weighed in determining
the ultimate question, whether the defendant’s participation ‘in
criminal activities known to carry a grave risk of death’ [citation]
was sufficiently significant to be considered ‘major.’ ” (Banks,
supra, at p. 803.)
One year later, our Supreme Court in Clark addressed the
factors that are relevant in determining whether a defendant
acted “with reckless indifference to human life.” Those factors
are: (1) knowledge of weapons, and use and number of weapons;
(2) physical presence at the crime and opportunities to restrain
the crime and/or aid the victim; (3) duration of the felony;
(4) defendant’s knowledge of cohort’s likelihood of killing;
(5) defendant’s efforts to minimize the risks of the violence during
the felony. (Clark, supra, 63 Cal.4th at pp. 618–622.) As was the
case with “the factors concerning major participant status in
Banks, ‘[n]o one of these considerations is necessary, nor is any
one of them necessarily sufficient.’ [Citation.]” (Id. at p. 618.)
Clark acknowledged that being a major participant and having
reckless indifference to human life “ ‘significantly overlap . . . for
the greater the defendant’s participation in the felony murder,
the more likely that he acted with reckless indifference to human

-- 15 of 27 --

15
life.’ (Tison [v. Arizona (1987)] 481 U.S. at p. 153.)” (Clark, at
p. 615.)
In light of Banks and Clark, we conclude that the jury’s
finding that the special circumstance allegations were true is not
supported by substantial evidence. The prosecution’s theory was
that McLaurin was part of a group of individuals who planned to
rob a Custom City store. Our appellate opinion acknowledged
that McLaurin and others planned to rob the store and concluded
it was a reasonable inference that McLaurin was a scout or look-
out, aided and abetted, and was a member of a conspiracy to
commit the robberies. However, “[t]he crime itself was armed
robbery; Enmund and Tison together demonstrate that
participation in an armed robbery, without more, does not involve
‘engaging in criminal activities known to carry a grave risk of
death.’ (Tison . . . supra, 481 U.S. at p. 157.)” (Banks, supra,
61 Cal.4th at p. 805.) In “a garden-variety armed robbery” death
might be possible but not probable. (Id. at p. 802.)
Considering the Banks and Clark factors, and recognizing
they overlap, we conclude there was insufficient evidence
McLaurin was a major participant who acted with reckless
indifference to life. McLaurin was involved in planning the
robberies, with a large group of other men; the evidence does not
suggest he was the mastermind or even a driving force. There
was no evidence that McLaurin possessed a firearm or provided a
firearm to the shooters.8 There was evidence from which the jury
8 In the current habeas proceeding, the Attorney General
again relies on McLaurin’s DNA on the backpack zipper. The
Attorney General acknowledges our conclusion in the prior
appeal that there was insufficient evidence to support the
inference that he had provided the backpack, but nonetheless
asserts, “the jury could infer that [McLaurin] played some role in

-- 16 of 27 --

16
could assume McLaurin knew that at least some of the robbers
would be armed, but not that he knew they were likely to kill.
For example, the prosecution presented no evidence McLaurin or
any of the armed men had themselves previously committed
murder, attempted murder, or any other violent crime – one of
the Banks and Clark factors. There was evidence that the
robbery plan involved tying up the victims, but no indication that
it involved shooting them.9 Although McLaurin was seen at the
Custom City earlier that day, and on previous occasions, he was
absent from the scene when the shootings took place, and could
not have acted to restrain the shooters or protect the victims –
another Banks/Clark factor. Rather, the evidence showed that
McLaurin was in the vicinity when the crimes took place, and
drove away alone. He was not the getaway driver.10
supplying the weapons which were in the backpack.” For a
second time, we are not persuaded. We held in the prior opinion
that “[t]he mere fact that McLaurin touched the backpack at
some point does not support an inference that he provided the
backpack to the conspirators.” It is equally true that the mere
fact that he touched the backpack at some point does not support
an inference that he supplied the weapons that were in the
backpack.
9 We reject the Attorney General’s suggestion that McLaurin
“knew that at least one person inside Custom City would offer
resistance to a robbery” because when he had gone there earlier
and picked up a tequila bottle, one of the men present exclaimed
that it was his bottle. It needs little discussion that exclaiming,
“That’s my bottle” when McLaurin grabbed it in the course of a
spontaneous call to party does not suggest later resistance to an
armed robbery.
10 At oral argument, the Attorney General placed great
weight on McLaurin’s post-robbery telephone calls to Johnny

-- 17 of 27 --

17
McLaurin’s participation in the offense was no more
involved or culpable than that of the petitioner in In re Miller
(2017) 14 Cal.App.5th 960. We vacated Miller’s felony-murder
special circumstance in light of Banks and Clark. Miller had
been convicted of felony murder for aiding and abetting an
associate in a follow-home robbery. Miller had planned the
robbery and acted as the “spotter”; he identified the target
robbery victim when she withdrew a large sum of money from the
bank, and pointed her out to his two colleagues, the “getter” and
the “driver,” in a waiting vehicle. His friends followed the victim
in their van, and when she reached her location, the getter exited
the van and tried to snatch the victim’s purse. When the robbery
victim’s male companion moved toward the getter, the getter
killed the male companion, then jumped back in the vehicle. The
driver drove off. (Id. at pp. 964-966.) Miller, the spotter, was
convicted of felony-murder and the special circumstance was
found true. Following Banks and Clark, we granted habeas
relief. (Id. at pp. 964-965.) We concluded that even if Miller, as
Williams, his friend who had hidden in the back during the
robbery. Specifically, the Attorney General suggested that,
because McLaurin asked Williams if he was okay, McLaurin
must have subjectively been aware that the crime involved a
“grave risk” of death. The conclusion does not follow. McLaurin
knew there had been an armed robbery at Custom City; it is
certainly reasonable that, knowing his friend had been at the
location of an armed robbery, McLaurin would ask that friend if
he was okay. The Attorney General’s inference, that by asking
after the robbery if Williams was okay, McLaurin betrayed a
subjective knowledge before the robbery that this particular
robbery involved a grave risk of death, is speculative. It is not
evidence that McLaurin knew this armed robbery involved a
greater risk of death than any other armed robbery.

-- 18 of 27 --

18
mastermind of the robbery, is considered a major participant,
there was insufficient evidence of reckless indifference to human
life. (Id. at pp. 974-975.)
We also see similarities to People v. Ramirez (2019)
41 Cal.App.5th 923, a case in which the Court of Appeal
addressed the denial of a section 1170.95 petition filed after the
court had vacated the defendant’s felony-murder special
circumstance under Banks and Clark. In explaining its prior
habeas opinion, the court stated, “We concluded that the evidence
established that defendant was not the actual killer in this case,
that he remained outside, that he had no forewarning that one of
his accomplices would shoot a victim, he did not instigate the
shooting, and he was not in a position to prevent it; thus, under
the Banks and Clark factors, the prior ‘finding that [defendant]
was a major participant who acted with reckless indifference to
human life [was] not supportable.’ [Citation.]” (Ramirez, at
p. 927; see also In re Taylor (2019) 34 Cal.App.5th 543, 547-548,
557; In re Bennett (2018) 26 Cal.App.5th 1002, 1019-1020.)
Because neither the level of McLaurin’s planning nor any
involvement in the actual robbery elevated the risk beyond those
inherent in any armed robbery, his role as an aider and abettor
was not sufficient to support either the major participant or
reckless indifference components of the special circumstance
finding. (Clark, supra, 63 Cal.4th at pp. 617–618; Banks, supra,
61 Cal.4th at p. 802.)
C. The Issue is Appropriately Addressed on Habeas Corpus
The Attorney General argues that we should not reach the
merits of the petition because McLaurin’s argument either was,
or should have been raised in his first appeal. The argument
goes that, because we rejected McLaurin’s argument that the
evidence of liability for murder was insufficient, we necessarily

-- 19 of 27 --

19
rejected the identical contention with respect to the special
circumstances.
We rejected that argument in In re Miller, supra,
14 Cal.App.5th at pages 977-978, and do so again here. It is true
that the general rule is that legal claims previously raised and
rejected on direct appeal ordinarily cannot be raised on habeas.
However, as we said in Miller, the rule “has no application in the
unusual circumstance here where our Supreme Court has
revisited the meaning of a penal statute. Banks and Clark are
correctly understood to have clarified the plain textual
requirements of section 190.2 that have existed since the
statute’s inception, and so understood, section 190.2 went
unsatisfied by the proof at defendant’s trial and the resulting
sentence must be vacated regardless of our prior determination of
defendant’s appeal.” (Ibid.; In re Scoggins (2020) ___ Cal.5th ___
[2020 WL 3525184, *3].)
D. Conclusion for McLaurin’s Habeas Petition
The prosecution is precluded from retrying the allegation
as there is insufficient evidence to support the special
circumstance finding. (U.S. Const., 5th & 14th Amends.; Burks v.
United States (1978) 437 U.S. 1, 18.) We therefore grant the
petition for writ of habeas corpus and vacate McLaurin’s two
robbery-murder special circumstance findings. This alone would
require a remand for resentencing. However, our habeas
determination also impacts his section 1170.95 petition, so we
turn to those petitions next.
2. The Defendants’ Section 1170.95 Resentencing
Petitions
Separate from McLaurin’s special circumstances habeas
petition are the appeals of the three defendants of the denial of
their petitions for resentencing under section 1170.95. Once a
section 1170.95 petition is filed, there follows a multi-step process

-- 20 of 27 --

20
by which the court first determines whether the petition is
facially complete, and, if so, whether the petitioner has made a
prima facie showing that he falls within the provisions of
statutory eligibility. (People v. Torres (2020) 46 Cal.App.5th
1168, 1177 (Torres) review granted June 24, 2020.) If the court
determines at this first stage the petitioner is ineligible for relief
as a matter of law, the petition is denied; if not, the court
proceeds to the next step. (Id. at p. 1178.) That step requires the
court to appoint counsel for the defendant, if requested, and
permit briefing on the issue of the defendant’s entitlement to
relief under the statute. (Verdugo, supra, 44 Cal.App.5th at
p. 330.) If the defendant establishes a “postbriefing prima facie
showing the petitioner is ‘entitled to relief’ ” (id, at p. 329), then
the court issues an order to show cause and proceeds to the third
stage. At the third stage, the court holds a hearing to determine
whether to vacate the murder conviction, recall the sentence, and
resentence the defendant on any remaining counts. (§ 1170.95,
subds. (c) & (d); Verdugo, at p. 328.)
We agree that, at the first stage, the court may consider not
only the petition itself but also readily available portions of the
record to determine whether the defendant is ineligible as a
matter of law. (Verdugo, supra, 44 Cal.App.5th at p. 323.) The
readily available portions of the record, which the court may
examine, include, “at least,” the “complaint, information or
indictment filed against the petitioner; the verdict form or factual
basis documentation for a negotiated plea; and the abstract of
judgment.” (Id. at pp. 329-330.) The trial court may also
consider jury instructions and any Court of Appeal opinion in the
case. (Id. at p. 333; People v. Edwards (2020) 48 Cal.App.5th 666,
675, petn. for rev. filed June 2, 2020.)
We also agree that when a felony-murder special
circumstance has been found true prior to Banks and Clark, that

-- 21 of 27 --

21
special circumstance finding alone does not establish that the
defendant was a major participant acting with reckless
indifference so as to preclude relief at this, initial, eligibility
stage. (Torres, supra, 46 Cal.App.5th at pp. 1178-1180.)11
Appellate courts have disagreed whether in pre-
Banks/Clark cases, the trial court may look behind the special
circumstance finding, review the evidence at trial, and determine
the defendant is ineligible for resentencing as a matter of law. In
People v. Law (2020) 48 Cal.App.5th 811 (Law), petition for
review filed June 5, 2020, Division Two of the Fourth Appellate
District concluded that, at the eligibility stage, the court could
review the evidence at trial and retroactively determine if
substantial evidence existed to satisfy Banks and Clark; indeed,
the Court of Appeal conducted that review itself, on the basis
that it did not require the resolution of disputed facts. (Id. at
p. 822.)
In People v. Smith (2020) 49 Cal.App.5th 85 [262
Cal.Rptr.3d 687] (Smith), we expressly disagreed with Law. We
11 The Attorney General cites People v. Gutierrez-Salazar
(2019) 38 Cal.App.5th 411 for the proposition that the trial court
may deny a section 1170.95 petition at the first stage based on a
pre-Banks/Clark special circumstances finding. We disagree. In
Gutierrez-Salazar the Court of Appeal was presented with the
issue on direct appeal from a conviction. The court left open the
possibility that the defendant could pursue a section 1170.95
petition. (Id. at p. 420.) More significantly, the opinion does not
mention Banks or Clark. It, thus, did not consider the impact of
those cases on the special circumstance finding and its relevance
to the multi-stage analysis on a section 1170.95 petition. We
expressly considered these issues in Torres and concluded that a
pre-Banks/Clark special circumstance finding does not render
the defendant ineligible for relief under section 1170.95.

-- 22 of 27 --

22
held that, absent any other disqualifying factor, if the special
circumstance finding is pre-Banks/Clark, the trial court must
proceed to the entitlement stage, and give the defendant “the
opportunity to develop, with the aid of counsel, a factual record
beyond the record of conviction.” (Id. at p. __ [262 Cal.Rptr.3d at
p. 695].)12
We reaffirm our holding in Smith. Under section 1170.95,
subdivision (c), in those cases where the only factor that might
disqualify a defendant from proceeding to the second entitlement
phase is a pre-Banks/Clark special circumstance finding, the
defendant is entitled to proceed to the second stage. And in that
situation the appellate court “cannot conduct [its] own
assessment of the trial evidence to determine whether [the
defendant] was a major participant and acted with reckless
indifference to human life, or to use that record evidence to
inquire whether the deprivation of counsel was harmless
error . . . .” (Smith, supra, at p. __ [262 Cal.Rptr.3d at p. 695].)
We next turn to the three section 1170.95 petitions
presented to the trial court.
12 Section 1170.95, subdivision (d)(3) contemplates that the
defendant may present or proffer evidence at the entitlement
stage. It provides in part: “The prosecutor and the petitioner
may rely on the record of conviction or offer new or additional
evidence to meet their respective burdens.” In light of the
shifting, but separate, burdens set out in section 1170.95, the
“respective burdens” can only refer to defendant’s burden at the
entitlement stage and the prosecution’s burden at any OSC
hearing. At each stage, the party having the burden may present
additional evidence.

-- 23 of 27 --

23
A. McLaurin’s section 1170.95 Petition
Here, the trial court denied the petition at the eligibility
phase, holding that the robbery-murder special circumstance
findings precluded relief. Because we have held the robbery
murder special circumstance findings are unsupported by
sufficient evidence, the trial court’s rationale for denying
McLaurin’s section 1170.95 petition without appointing counsel
does not hold. The trial court must appoint counsel for McLaurin
before determining whether an order to show cause should issue
under section 1170.95, subdivision (c).
McLaurin seeks no further relief; we therefore need not
address whether the vacation of the special circumstance findings
alone requires the trial court to vacate the underlying felony-
murder convictions.
B. Jordan’s section 1170.95 Petition
Although Jordan did not file a habeas petition – and,
therefore, his felony-murder special circumstances still stand –
the trial court nonetheless erred in summarily denying his
petition for resentencing based on those special circumstances
findings. The intervening Banks and Clark opinions and the
passage of SB 1437 mean that the jury’s 2013 special
circumstance findings that Jordan was a major participant who
acted with reckless indifference to human life do not necessarily
establish that he was a major participant who acted with reckless
indifference as the terms are now defined. (Smith supra,
49 Cal.App.5th at p. ___ [262 Cal.Rptr.3d at pp. 693-694]; Torres,
supra, 46 Cal.App.5th at p. 474.)
Jordan, like McLaurin, is entitled to the appointment of

-- 24 of 27 --

24
counsel and a hearing under section 1170.95, subdivision (c).13
C. Lewis’s section 1170.95 Petition
Our analysis as to Lewis is largely identical to that of
Jordan. The pre-Banks/Clark special circumstance findings do
not automatically render him ineligible for relief.
The trial court order on Lewis’s petition differs from the
McLaurin and Jordan orders. The trial court also denied Lewis’s
motion on the alternative ground that the court’s own review of
13 The facts recited in our previous opinion (People v.
McLaurin, supra, B250278) present considerable evidence that
Jordan was a major participant who acted with reckless
indifference to life. Part of the evidence was that Jordan pointed
a gun at the face of one of the victims and pulled the trigger, but
the gun would not fire. We also observe that Jordan testified at
the trial, claiming only that he was not present at the robbery.
Section 1170.95, subdivision (d)(3) allows the defendant to offer
additional evidence at the entitlement hearing and does not
condition that right on defendant having not testified at trial.
The scope of the trial court’s review at the entitlement stage “is
identical to the standard for issuance of an order to show cause in
a habeas proceeding, as set forth in rule 4.551(c)(1): ‘The court
must issue an order to show cause if the petitioner has made a
prima facie showing that he or she is entitled to relief. In doing
so, the court takes petitioner’s factual allegations as true and
makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved. If so, the court must issue an order to
show cause.’ [Citations.]” (Verdugo, supra, 44 Cal.App.5th at
p. 328.) It will therefore be for the trial court to determine
whether any evidence Jordan may offer establishes a prima facie
case that he was not a major participant acting with reckless
indifference, in light of the entire record, including Jordan’s
testimony at trial.

-- 25 of 27 --

25
the facts in the appellate opinion demonstrated he was a major
participant who acted with reckless indifference. As with Jordan,
there is considerable evidence that would support the trial court’s
major participant and reckless indifference findings for Lewis.
But Lewis is also entitled to representation by counsel, if he
requests, and to provide additional evidence to contest the
findings in our prior opinion. (Smith, supra, 49 Cal.App.5th at
p. ___ [262 Cal.Rptr.3d at p. 695].)14
We conclude that Lewis, as well, is entitled to appointment
of counsel and a hearing under section 1170.95, subdivision (c).
D. Jordan and Lewis Are Not Entitled to
Resentencing on the Attempted Murder Counts
On appeal, Jordan and Lewis (but not McLaurin) argue
that section 1170.95 also applies to their convictions for
attempted murder – an argument they did not raise in their
petitions for relief before the trial court. There is some debate as
to whether SB 1437 applies to attempted murder in cases not yet
final on appeal – an issue pending before our Supreme Court.
(Compare People v. Medrano (2019) 42 Cal.App.5th 1001, 1007-
1008, review granted Mar. 11, 2020 [attempted murder qualifies
under SB 1437 on direct appeal] with People v. Lopez (2019)
38 Cal.App.5th 1087, 1104-1105, review granted Nov. 13, 2019
[attempted murder does not qualify under SB 1437 on direct
appeal].) However, case law is uniform that section 1170.95
resentencing applies only to murder, not attempts. (Medrano,
supra, at pp. 1016-1018, review granted Mar. 11, 2020; People v.
Larios (2019) 42 Cal.App.5th 956, 969-970, review granted
14 The Attorney General does not ask us to independently
assess the facts under Banks and Clark. We rejected that notion
in Smith.

-- 26 of 27 --

26
Feb. 26, 2020; People v. Munoz (2019) 39 Cal.App.5th 738, 754,
review granted Nov. 26, 2019; Lopez, supra, at pp. 1104-1105.)
On remand, defendants are not entitled to pursue
resentencing on the attempted murder counts.
DISPOSITION
McLaurin’s petition for writ of habeas corpus is granted.
The true findings on the special circumstances allegations under
section 190.2, subdivision (a)(17)(A), as to McLaurin alone, are
vacated.
The trial court’s orders denying the three defendants’
petitions for resentencing on the murder counts under section
1170.95 are reversed. On remand, the trial court shall appoint
counsel for each defendant, if requested, and to conduct a hearing
in accordance with section 1170.95, subdivision (c).
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.

-- 27 of 27 --