54 Cal.App.5th 160
Cal. Ct. App.2020Background:
- In 1992 Murillo joined a group burglary/"beer run"; he showed a handgun, gave it to cohort Gabriel, and during the flight allegedly told Gabriel “Shoot him”; Gabriel shot and killed Brown.
- A jury convicted Murillo of first‑degree murder and found a felony‑murder special circumstance under Penal Code §190.2(a)(17); Murillo received life without parole.
- Senate Bill No. 1437 (2018) narrowed felony‑murder liability and created Penal Code §1170.95 to permit eligible defendants to seek resentencing under the new standard (major participant + reckless indifference).
- Murillo filed a §1170.95 petition in 2019; the trial court summarily denied it, reasoning the preexisting special‑circumstance finding rendered him ineligible (and also erroneously finding SB 1437 unconstitutional).
- On appeal the court affirmed for two independent reasons: (1) collateral challenges to pre‑Banks/Clark special‑circumstance findings must proceed by habeas corpus, not §1170.95; and (2) even under Banks and Clark the record shows as a matter of law Murillo was a major participant who acted with reckless indifference.
Issues:
| Issue | People’s Argument | Murillo’s Argument | Held |
|---|---|---|---|
| Proper procedure to challenge a pre‑Banks/Clark felony‑murder special‑circumstance finding | Habeas corpus is the proper collateral remedy; §1170.95 is not the vehicle | A §1170.95 petition can collaterally challenge the special‑circumstance finding in light of Banks/Clark | Habeas corpus is the correct procedure; §1170.95 cannot be used to attack a prior special‑circumstance finding (following People v. Galvan) |
| Whether the record supports a Banks/Clark‑compliant finding that Murillo was a major participant who acted with reckless indifference | Record (instruction to shoot; supplied gun; presence; knew Gabriel was inexperienced) satisfies Banks/Clark factors | Banks/Clark clarified the standard and the earlier special‑circumstance should be re‑evaluated; no court has applied Banks/Clark to Murillo | As a matter of law the record shows Murillo was a major participant who acted with reckless indifference (e.g., he told Gabriel to shoot and armed an inexperienced cohort), so he remains ineligible for §1170.95 relief |
Key Cases Cited
- People v. Banks, 61 Cal.4th 788 (clarified factors for "major participant")
- People v. Clark, 63 Cal.4th 522 (clarified factors for "reckless indifference to human life")
- People v. Galvan, 52 Cal.App.5th 1134 (held habeas, not §1170.95, is proper collateral route to attack pre‑Banks/Clark special‑circumstance)
- In re Scoggins, 9 Cal.5th 667 (discusses Tison/Enmund continuum and habeas cognizability for clarified standards)
- People v. Verdugo, 44 Cal.App.5th 320 (standards for prima facie §1170.95 review)
- People v. Lewis, 43 Cal.App.5th 1128 (same; §1170.95 prima facie guidance)
- People v. Smith, 49 Cal.App.5th 85 (contrasting view on using §1170.95 to revisit pre‑Banks/Clark special‑circumstance)
- Tison v. Arizona, 481 U.S. 137 (established major‑participant + reckless‑indifference standard)
- Enmund v. Florida, 458 U.S. 782 (positions the lower end of the Tison/Enmund culpability continuum)
- People v. Gomez, 52 Cal.App.5th 1 (discusses burden at §1170.95 proceedings)