People v. Banks

• Decision Date: 10 December 2020
• Docket Number: E074390
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CLYDE SHIRONE BANKS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. CLYDE SHIRONE BANKS, Defendant and Appellant.

E074390

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

December 10, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. RIF080665)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed.

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On February 21, 2001, a second amended information charged defendant and appellant Clyde Shirone Banks and codefendant Jason Latrell Thomas¹ with first degree murder under Penal Code² section 187 (count 1) and attempted robbery under sections 664 and 211. As to both counts, the information also alleged that defendant personally and intentionally discharged a firearm and proximately caused great bodily injury or death to another person under sections 12022.53, subdivision (d), and 1192.7, subdivision (c)(8). As to count 1, the information further alleged that defendants committed the murder while engaged in the attempted robbery under section 190.2, subdivision (a)(17).

"The jury found defendants guilty as charged, and found the felony murder special circumstance allegation and all firearm enhancement allegations true. Banks was sentenced to life without the possibility of parole, plus a consecutive term of 25 years to life for the personal discharge enhancement, on count 1." (People v. Banks (October 8, 2002, E029239) [nonpub. opn.]; 2002 Cal.App.Unpub.LEXIS 9374, *3.)³

Almost 17 years later, on September 6, 2019, defendant filed a petition for resentencing under section 1170.95. On December 13, 2019, after a hearing on the motion wherein defendant was represented by counsel, the trial court denied the petition.

On December 23, 2019, defendant filed a timely notice of appeal.

B. FACTUAL HISTORY⁴

"On April 9, 1998, at 10:00 p.m., Rodney Martin (Martin), then 31 years old, drove to the Hunt Club apartments in Perris with his brother, Troy Petterway (Petterway), then 26 years old. Martin and Petterway drove into a carport area and stepped out of the car. Thomas then approached Petterway on the passenger's side of the car and asked for a cigarette.

"Petterway knew Thomas, thought there might be a fight, and kept his attention on Thomas. Petterway then saw 'two other guys' approach Martin on the driver's side of the car. He identified one of the two other guys as Banks, but could not identify the other.⁵ Either Banks or the person standing near him said, 'Break yourself,' which meant, 'This is a robbery.'

"Martin told Banks to 'get out of his face' and swung at him. Banks then pulled a gun out of his jacket and started shooting. Martin said, 'Run,' and Petterway ran. AsPetterway ran, he heard Thomas yell 'Outlaw.' Within minutes, Martin died of multiple gunshot wounds.

"Petterway testified that as he was running from the scene he heard several shots fired, with a pause in between. William Owens (Owens), the maintenance supervisor at the apartments and a former weapons instructor in the Marines, also heard two sets of shots fired, with a pause in between. Owens said that the pause was 'like somebody was changing a magazine.'

"Thomas's brother, Malik Swanigan (Swanigan), testified that he was in an upstairs apartment when he heard shots being fired. He ran out of the apartment and halfway down the staircase. From there, he saw Banks shooting Martin. He then saw Thomas take the gun from Banks and shoot Martin several times. (Fn. omitted.)

"After the shooting, Swanigan and Thomas went to see Swanigan's girlfriend, Nina Burton, in Sun City. Burton told the police that the morning after the shooting she overheard Thomas on the telephone bragging that he had shot Martin.

"Several days after the shooting, Swanigan and Thomas went to visit [Lisa] Rufus in Bellflower. There, Thomas confessed to Rufus that he shot Martin, and made additional statements that incriminated Banks."

DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and has requested thiscourt to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issue to assist the court in its search of the record for error: "Did the court err in concluding that Banks failed to establish a prima facie case for relief because his jury found true the murder/robbery special circumstance?"

We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.

We recognize that in People v. Cole (2020) 52 Cal.App.5th 1023, Division Two of the Second Appellate District held "that Wende's constitutional underpinnings do not apply to appeals from the denial of postconviction relief." (Id. at p. 1028.) We have "no independent duty to review the record for reasonably arguable issues," and when a defendant fails to file a supplemental brief, "the Court of Appeal may dismiss the appeal as abandoned." (Id. at p. 1039, italics added.) Recently, in People v. Flores (2020) 54 Cal.App.5th 266 (Flores), our colleagues in Division Three of the Fourth Appellate District held "that when an appointed counsel files a Wende brief in an appeal from a summary denial of a section 1170.95 petition, a Court of Appeal is not required to independently review the entire record, but the court can and should do so in the interests of justice. This is a pure question of law, so our review is de novo." (Id. at p. 269.) The Flores court went on to reiterate that "while we agree with the primary holding in Cole—that we are not required to conduct an independent review of the record because this is not defendant's first appeal as a matter of right—we have found no legal authority that prohibits us from doing so in the interests of justice." (Id. at p. 273.) We agree with our colleagues in Flores.

"There are three well-established 'due process' criteria that are helpful to courts when establishing procedures in the interests of justice: 'They are (1) "the private interests at stake," (2) "the government's interests," and (3) "the risk that the procedures used will lead to erroneous decisions." ' " (Flores, supra, 54 Cal.App.5th at pp. 273-274.)

As noted by the court in Flores, "[i]n an appeal from a denial of a section 1170.95 petition, the private interests at stake are the liberty interests of the person who may be in custody and seeking release. [Citation.] The government's interests are the appellate court's interests in making sure there was a correct ruling in the trial court, while balancing fiscal and administrative concerns. [Citation.] And finally, the risk of an erroneous ruling is present if appointed counsel failed to identify a meritorious (reversible) issue on appeal, and the appellate court also failed to identify that issue by failing to conduct an independent review." (Flores, supra, 54 Cal.App.5th at p. 274.) The court went on to state that "[w]hen we weigh the paramount liberty interests of the petitioner, the modest fiscal and administrative burdens to the courts, and the possible (while presumably low) risk of a petitioner's unlawful incarceration due to an unreviewed meritorious issue on appeal, we lean toward caution. That is, although it is not required under law, we think an appellate court can and should independently review the record on appeal when an indigent defendant's appointed counsel has filed a Wende brief in a postjudgment appeal from a summary denial of a section 1170.95 petition (regardless of whether the petitioner has filed a supplemental brief.)" (Ibid.)

We agree with Flores that dismissal is discretionary, and that we can and should independently review the record on appeal in the interests of justice. (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 8.)

A. LEGAL BACKGROUND

"In 2018 the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) . . ., which abolished the natural and probable consequences doctrine. . . . Under section 189, subdivision (e), as amended by Senate Bill No. 1437, a defendant is guilty of felony murder only if he: actually killed the victim; directly aided and abetted or solicited the killing, or otherwise acted with the intent to kill; or 'was a major participant in the underlying felony and acted with reckless indifference to human life.' " [Citations.] The legislation also enacted section 1170.95, which established a procedure for vacating murder convictions for defendants who would no longer be guilty of murder because of the new law and resentencing those who were so convicted." (People v. Murillo (2020) 54 Cal.App.5th 160, 166 (Murillo).)

"Section 1170.95 allows a defendant serving a sentence for felony murder who would not be guilty of murder because of the new law to petition for resentencing. The statute requires a defendant to submit a petition affirming that he meets three criteria of eligibility: (1) He was charged with murder in a manner 'that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine' [citation]; (2) He 'was convicted of' or pleaded guilty to 'first degree murder or second degree murder' [citation]; and (3) He 'could not be convicted of first or second degree murder because of changes to Section[s] 188 or 189 made effective' as a part of Senate Bill No. 1437 [citation]. ...