The trial court erred in denying a Penal Code section 1170.95 petition based solely on the existence of a robbery-murder special circumstance finding made prior to People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. A jury convicted Arias of first degree murder and found true a robbery-murder special circumstance allegation pursuant to Penal Code section 190.2, subdivision (a)(17)(A). The judgment became final in 2011. In 2019, Arias filed a resentencing petition pursuant to section 1170.95, which was summarily denied. Arias appealed. Held: Reversed. The special circumstance statute extends eligibility for death or LWOP sentences to actual killers as well as certain aiders and abettors of first degree murder. In the case of first degree felony murder, it imposes a special actus reus requirement (major participant in the crime) and a specific mens rea requirement (reckless indifference to human life). Banks identified factors relevant in determining whether a defendant performs the necessary actus reus, while Clark addressed the subjective and objective elements of the mens rea requirement. Noting the issue is currently pending before the California Supreme Court in People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review granted 3/10/2021 (S266606), the court was persuaded by the logic of courts that have concluded pre-Banks and Clark felony-murder special circumstance findings do not categorically preclude defendants from obtaining resentencing relief under section 1170.95. (Cf. People v. Gomez (2020) 52 Cal.App.5th 1, 17, review granted 10/14/2020 (S264033/D076101).)

Remand is required because the limited record on appeal did not establish that the robbery-murder special circumstance finding satisfies Banks and Clark. A pre-Banks and Clark felony-murder special circumstance finding does not require the court to reverse and remand the matter for the trial court to issue an order to show cause. Instead, for the reasons stated in People v. Secrease (2021) 63 Cal.App.5th 231, review granted 6/30/2021 (S268862/A158342), the court must review the record of conviction to determine whether the petitioner’s record of conviction satisfies the Banks and Clark standards. Here, although the prior appellate opinion concluded there was substantial evidence that Arias was a major participant acting with reckless indifference to human life, it did not address the vast majority of the actus reus and mens rea factors set forth in Banks and Clark. Because the record of conviction available on appeal is too sparse to determine whether the Banks and Clark standards are met, the matter was remanded for the trial court to conduct a sufficiency of the evidence review of the full record of conviction, including trial evidence. (See Secrease, supra, 63 Cal.App.5th at p. 255.)

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/D077778.PDF