Banks factors in California

2023The court found Devine could still be convicted of first degree murder because the People proved beyond a reasonable doubt he was “a direct aider and abettor” and because, “aside from aiding and abetting, if the court is incorrect on that, the Banks factors for a major participant are met in this case.” Devine timely appealed. 6 DISCUSSION A. Section 1172.6 Effective 2019, the Legislature substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Reyes (2023)

2023The court found Devine could still be convicted of first degree murder because the People proved beyond a reasonable doubt he was “a direct aider and abettor” and because, “aside from aiding and abetting, if the court is incorrect on that, the Banks factors for a major participant are met in this case.” Devine timely appealed. 6 DISCUSSION A. Section 1172.6 Effective 2019, the Legislature substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Reyes (2023)

2015Banks asserts these facts are consistent with our Supreme Court's acknowledgment in Tenzer that "fraudulent intent has been inferred from such circumstances as defendant's insolvency, his hasty repudiation of the promise, his failure even to attempt performance, or his continued assurances after it was clear he would not perform." (Tenzer, supra, 39 Cal.3d at p. 30 .) We agree.

2015Banks asserts these facts are consistent with our Supreme Court's acknowledgment in Tenzer that "fraudulent intent has been inferred from such circumstances as defendant's insolvency, his hasty repudiation of the promise, his failure even to attempt performance, or his continued assurances after it was clear he would not perform." (Tenzer, supra, 39 Cal.3d at p. 30 .) We agree.

2024Standard of Review “Ordinarily, a trial court’s denial of a section 1172.6 petition is reviewed for substantial evidence.” (People v. Reyes (2023) 14 Cal.5th 981 , 988.) Relying principally on People v. Vivar (2021) 11 Cal.5th 510 , Garcia contends that we should afford no deference to the trial court’s findings and independently review the evidentiary hearing evidence because the trial court denied the petition “based solely on the cold record consisting of trial transcripts and exhibits.” Several Courts of Appeal have considered and rejected this argument, as do we.

2024Standard of Review “Ordinarily, a trial court’s denial of a section 1172.6 petition is reviewed for substantial evidence.” (People v. Reyes (2023) 14 Cal.5th 981 , 988.) Relying principally on People v. Vivar (2021) 11 Cal.5th 510 , Garcia contends that we should afford no deference to the trial court’s findings and independently review the evidentiary hearing evidence because the trial court denied the petition “based solely on the cold record consisting of trial transcripts and exhibits.” Several Courts of Appeal have considered and rejected this argument, as do we.

2024(People v. Mitchell (2019) 7 Cal.5th 561 , 579–580.) Banks further argues he was prejudiced by trial counsel’s ineffective assistance in failing to object to the form of the instruction. 5 The Bench Notes to CALCRIM No. 315 provide: “Whenever there is evidence a witness has expressed certainty about an identification, give the bracketed language beginning with ‘How certain was the witness’ and the bracketed paragraph that begins with ‘A witness’s expression of certainty’ along with any applicable bracketed factors.

2023The court found Devine could still be convicted of first degree murder because the People proved beyond a reasonable doubt he was “a direct aider and abettor” and because, “aside from aiding and abetting, if the court is incorrect on that, the Banks factors for a major participant are met in this case.” Devine timely appealed. 6 DISCUSSION A. Section 1172.6 Effective 2019, the Legislature substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Reyes (2023)

2023The court found Devine could still be convicted of first degree murder because the People proved beyond a reasonable doubt he was “a direct aider and abettor” and because, “aside from aiding and abetting, if the court is incorrect on that, the Banks factors for a major participant are met in this case.” Devine timely appealed. 6 DISCUSSION A. Section 1172.6 Effective 2019, the Legislature substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Reyes (2023)

2023(Banks, supra, 61 Cal.4th at p. 803 .) The Clark factors, describing reckless indifference, include; the defendant’s knowledge of weapons used in the crime; how those weapons were used; the number of weapons used; the defendant’s proximity to the crime; his or her opportunity to stop the killing or aid the victim[s]; the duration of the crime; the defendant’s knowledge of the killer’s propensity to kill; and the defendant’s efforts, if any, to minimize the possibility of violence during the crime. ( Clark, supra, 63 Cal.4th at pp. 616–623.) No single factor is determinative. ( Clark, supra, 63

2023(Banks, supra, 61 Cal.4th at p. 803 .) The Clark factors, describing reckless indifference, include; the defendant’s knowledge of weapons used in the crime; how those weapons were used; the number of weapons used; the defendant’s proximity to the crime; his or her opportunity to stop the killing or aid the victim[s]; the duration of the crime; the defendant’s knowledge of the killer’s propensity to kill; and the defendant’s efforts, if any, to minimize the possibility of violence during the crime. ( Clark, supra, 63 Cal.4th at pp. 616–623.) No single factor is determinative. ( Clark, supra, 63

2022We disagree and again note that the weight to be given to evidence is the province of the trier of fact (People v. Maxwell, supra, 94 Cal.App.3d at p. 576 ); the trial court was not required to find all suggested factors (see Banks, supra, 61 Cal.4th at p. 803 ).

2022We disagree and again note that the weight to be given to evidence is the province of the trier of fact (People v. Maxwell, supra, 94 Cal.App.3d at p. 576 ); the trial court was not required to find all suggested factors (see Banks, supra, 61 Cal.4th at p. 803 ).

2022(People v. Merritt, supra, 2 Cal.5th at pp. 831–833.) Any instructional error was therefore harmless. 2.

2022(People v. Merritt, supra, 2 Cal.5th at pp. 831–833.) Any instructional error was therefore harmless. 2.

2022What did the defendant do after lethal force was used?” (Banks, supra, 61 Cal.4th at p. 803 , fn. omitted.) The Banks factors are “highly relevant” to determining whether a defendant also acted with reckless indifference for human life (In re Loza (2017) 10 Cal.App.5th 38, 52 ), as are the factors enumerated in Clark: (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) knowledge of a cohort’s likelihood of killing; and (5) efforts to minimize the risks of the v

2022What did the defendant do after lethal force was used?” (Banks, supra, 61 Cal.4th at p. 803 , fn. omitted.) The Banks factors are “highly relevant” to determining whether a defendant also acted with reckless indifference for human life (In re Loza (2017) 10 Cal.App.5th 38, 52 ), as are the factors enumerated in Clark: (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) knowledge of a cohort’s likelihood of killing; and (5) efforts to minimize the risks of the v

2022(Ibid. [fourth Banks factor].) In arguing that the evidence is insufficient, defendant asserts that “no evidence was presented that [he] knew he was participating in an armed robbery,” and that even if he were aware, “this alone [is] insufficient to show that [he] was a major participant.” (Italics added.) Defendant analogizes this case to In re Ramirez (2019) 32 Cal.App.5th 384 (Ramirez).

2022(People v. Brown (2014) 59 Cal.4th 86, 106 .) Second, defendant takes issue with the trial court’s analysis of the specific Banks factors bearing on major participation, arguing that (1) defendant’s role was minimal and he did not recruit Hernandez or seek out his assistance; (2) he “played no role in supplying or using the gun”; (3) he was “unaware of Hernandez’s violent or hair-trigger temper”; (4) he was not in a position to stop the shooting from occurring because “Hernandez took complete control of the situation and pushed [defendant] . . . out of the way”; and (5) defendant was in a “sta

2022(People v. Brown (2014) 59 Cal.4th 86, 106 .) Second, defendant takes issue with the trial court’s analysis of the specific Banks factors bearing on major participation, arguing that (1) defendant’s role was minimal and he did not recruit Hernandez or seek out his assistance; (2) he “played no role in supplying or using the gun”; (3) he was “unaware of Hernandez’s violent or hair-trigger temper”; (4) he was not in a position to stop the shooting from occurring because “Hernandez took complete control of the situation and pushed [defendant] . . . out of the way”; and (5) defendant was in a “sta

2021We have exercised our discretion not to apply the forfeiture doctrine and instead to decide the case on the merits (see People v. Smith (2003) 31 Cal.4th 1207, 1215 ; People v. Williams (1998) 17 Cal.4th 148, 161 ) in order to avoid allowing an oversight by Banks’s attorney to deprive Banks of an opportunity to reduce his sentence.3 Nothing in this opinion should be taken as an indication of how the trial court should exercise its discretion upon remand. 3Because we decide the issue on the merits, we need not decide Banks’s claim that his attorney rendered ineffective assistance of counsel by

2021We have exercised our discretion not to apply the forfeiture doctrine and instead to decide the case on the merits (see People v. Smith (2003) 31 Cal.4th 1207, 1215 ; People v. Williams (1998) 17 Cal.4th 148, 161 ) in order to avoid allowing an oversight by Banks’s attorney to deprive Banks of an opportunity to reduce his sentence.3 Nothing in this opinion should be taken as an indication of how the trial court should exercise its discretion upon remand. 3Because we decide the issue on the merits, we need not decide Banks’s claim that his attorney rendered ineffective assistance of counsel by

2021(Ibid.) Moreover, given Harris’s youth at the time of the crime, particularly in light of subsequent case law’s recognition of the science relating to adolescent brain development (see, e.g., Graham v. Florida (2010) 560 U.S. 48 ; Miller v. Alabama (2012) 567 U.S. 460 ; People v. Gutierrez (2014) 58 Cal.4th 1354 ), it is far from clear that Harris was actually aware “of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants.” (Banks, at p. 803.) On the other hand, several of the Banks factors clearly point toward Harris as a m

2021(Ibid.) Moreover, given Harris’s youth at the time of the crime, particularly in light of subsequent case law’s recognition of the science relating to adolescent brain development (see, e.g., Graham v. Florida (2010) 560 U.S. 48 ; Miller v. Alabama (2012) 567 U.S. 460 ; People v. Gutierrez (2014) 58 Cal.4th 1354 ), it is far from clear that Harris was actually aware “of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants.” (Banks, at p. 803.) On the other hand, several of the Banks factors clearly point toward Harris as a m

2021(Ibid.) Moreover, given Harris’s youth at the time of the crime, particularly in light of subsequent case law’s recognition of the science relating to adolescent brain development (see, e.g., Graham v. Florida (2010) 560 U.S. 48 ; Miller v. Alabama (2012) 567 U.S. 460 ; People v. Gutierrez (2014) 58 Cal.4th 1354 ), it is far from clear that Harris was actually aware “of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants.” (Banks, at p. 803.) On the other hand, several of the Banks factors clearly point toward Harris as a m

2021(Ibid.) Moreover, given Harris’s youth at the time of the crime, particularly in light of subsequent case law’s recognition of the science relating to adolescent brain development (see, e.g., Graham v. Florida (2010) 560 U.S. 48 ; Miller v. Alabama (2012) 567 U.S. 460 ; People v. Gutierrez (2014) 58 Cal.4th 1354 ), it is far from clear that Harris was actually aware “of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants.” (Banks, at p. 803.) On the other hand, several of the Banks factors clearly point toward Harris as a m

2021Standard of proof Defendant contends that substantial evidence does not support the trial court’s finding that he acted with reckless indifference to human life. ~(AOB 45)~ Reaching its conclusion that defendant acted with reckless indifference to human life, the trial court considered the Banks factors as well as conduct the court considered to be similar to the conduct in Tison and dissimilar to conduct in Enmund. ~(CT 259-268)~ However, it appears that the court applied the standard proof as stated in People v. Duke (2020) 55 Cal.App.5th 113 , review granted January 13, 2021, S265309 (Duke)

2021Standard of proof Defendant contends that substantial evidence does not support the trial court’s finding that he acted with reckless indifference to human life. ~(AOB 45)~ Reaching its conclusion that defendant acted with reckless indifference to human life, the trial court considered the Banks factors as well as conduct the court considered to be similar to the conduct in Tison and dissimilar to conduct in Enmund. ~(CT 259-268)~ However, it appears that the court applied the standard proof as stated in People v. Duke (2020) 55 Cal.App.5th 113 , review granted January 13, 2021, S265309 (Duke)

2021She observes that ‘[t]he jury expressly rejected Fells’s testimony appellant shot Merrill’ and that ‘[t]he court defers to the jury’s credibility determination.’ ” (Price I, supra, 8 Cal.App.5th at p. 452 .) In responding to Price’s arguments challenging the special circumstance finding, we discussed Banks and Clark at some length. 5 (Price I, supra, 8 Cal.App.5th at pp. 447-451.) Among other things, we concluded that the jury’s not true findings regarding the gun-related allegations should not be considered on the separate question of the sufficiency of the evidence on the robbery-murder spec

2021She observes that ‘[t]he jury expressly rejected Fells’s testimony appellant shot Merrill’ and that ‘[t]he court defers to the jury’s credibility determination.’ ” (Price I, supra, 8 Cal.App.5th at p. 452 .) In responding to Price’s arguments challenging the special circumstance finding, we discussed Banks and Clark at some length. 5 (Price I, supra, 8 Cal.App.5th at pp. 447-451.) Among other things, we concluded that the jury’s not true findings regarding the gun-related allegations should not be considered on the separate question of the sufficiency of the evidence on the robbery-murder spec

2021(Ibid.) Moreover, given Harris’s youth at the time of the crime, particularly in light of subsequent case law’s recognition of the science relating to adolescent brain development (see, e.g., Graham v. Florida (2010) 560 U.S. 48 ; Miller v. Alabama (2012) 567 U.S. 460 ; People v. Gutierrez (2014) 58 Cal.4th 1354 ), it is far from clear that Harris was actually aware “of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants.” (Banks, at p. 803.) On the other hand, several of the Banks factors clearly point toward Harris as a m

2021(Ibid.) Moreover, given Harris’s youth at the time of the crime, particularly in light of subsequent case law’s recognition of the science relating to adolescent brain development (see, e.g., Graham v. Florida (2010) 560 U.S. 48 ; Miller v. Alabama (2012) 567 U.S. 460 ; People v. Gutierrez (2014) 58 Cal.4th 1354 ), it is far from clear that Harris was actually aware “of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants.” (Banks, at p. 803.) On the other hand, several of the Banks factors clearly point toward Harris as a m

2020Code & Commentaries, com. to § 2.02, p. 237, fn. omitted.)” (Id. at p. 617.) “ ‘ “[R]eckless indifference to human life” is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death.’ ” (People v. Williams (2015) 61 Cal.4th 1244, 1281 .) Major Participant “ ‘[M]ajor participation’ should be understood as the phrase is used in common parlance, as including those whose involvement is ‘ “notable or conspicuous in effect or scope” ’ and who are ‘ “one of the larger or more important members . . . of a . . . grou

2020Code & Commentaries, com. to § 2.02, p. 237, fn. omitted.)” (Id. at p. 617.) “ ‘ “[R]eckless indifference to human life” is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death.’ ” (People v. Williams (2015) 61 Cal.4th 1244, 1281 .) Major Participant “ ‘[M]ajor participation’ should be understood as the phrase is used in common parlance, as including those whose involvement is ‘ “notable or conspicuous in effect or scope” ’ and who are ‘ “one of the larger or more important members . . . of a . . . grou

2020Code & Commentaries, com. to § 2.02, p. 237, fn. omitted.)” (Id. at p. 617.) “ ‘ “[R]eckless indifference to human life” is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death.’ ” (People v. Williams (2015) 61 Cal.4th 1244, 1281 .) Major Participant “ ‘[M]ajor participation’ should be understood as the phrase is used in common parlance, as including those whose involvement is ‘ “notable or conspicuous in effect or scope” ’ and who are ‘ “one of the larger or more important members . . . of a . . . grou

2020Code & Commentaries, com. to § 2.02, p. 237, fn. omitted.)” (Id. at p. 617.) “ ‘ “[R]eckless indifference to human life” is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death.’ ” (People v. Williams (2015) 61 Cal.4th 1244, 1281 .) Major Participant “ ‘[M]ajor participation’ should be understood as the phrase is used in common parlance, as including those whose involvement is ‘ “notable or conspicuous in effect or scope” ’ and who are ‘ “one of the larger or more important members . . . of a . . . grou

2017The People make a similar argument in regard to Clark , contending its discussion of the reckless indifference element in the context of a challenge to the sufficiency of the evidence cannot “be taken as supporting a requirement for jury instruction in the Banks factors.” Further, the People point out that the Supreme Court concluded in Estrada, supra, 11 Cal.4th at p. 578 , that “the generally accepted meaning of the phrase, ‘reckless indifference to human life,’ in common parlance amply conveys to the jury the requirement of a defendant’s subjective awareness of the grave risk to human life

2017The People make a similar argument in regard to Clark , contending its discussion of the reckless indifference element in the context of a challenge to the sufficiency of the evidence cannot “be taken as supporting a requirement for jury instruction in the Banks factors.” Further, the People point out that the Supreme Court concluded in Estrada, supra, 11 Cal.4th at p. 578 , that “the generally accepted meaning of the phrase, ‘reckless indifference to human life,’ in common parlance amply conveys to the jury the requirement of a defendant’s subjective awareness of the grave risk to human life

2017She observes that “[t]he jury expressly rejected Fells’s testimony appellant shot Merrill” and that “[t]he court defers to the jury’s credibility determination.” The People, on the other hand, argue that section 190.2, subdivision (d), its elements and the Banks factors need not be applied here because “there was substantial evidence that appellant was the actual killer, and that she had the intent to kill." They contend the jury’s rejection of the allegations of personal use of a gun by Price “is legally insignificant.” They rely on section 954 and case law applying it, including People v. Mi

2017She observes that “[t]he jury expressly rejected Fells’s testimony appellant shot Merrill” and that “[t]he court defers to the jury’s credibility determination.” The People, on the other hand, argue that section 190.2, subdivision (d), its elements and the Banks factors need not be applied here because “there was substantial evidence that appellant was the actual killer, and that she had the intent to kill." They contend the jury’s rejection of the allegations of personal use of a gun by Price “is legally insignificant.” They rely on section 954 and case law applying it, including People v. Mi

2017In [People v.] Lewis [(2001) 25 Cal.4th 610 [ 106 Cal.Rptr.2d 629 , 22 P.3d 392 ]], the court explained, ‘ “Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. [Citations.] This review should be independent of the jury’s determination that evidence on another count was insufficient.” [Citation.]’ (Lewis, supra, at p. 656 .) ‘An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict.’ ” (Id. a

2017In [People v.] Lewis [(2001) 25 Cal.4th 610 [ 106 Cal.Rptr.2d 629 , 22 P.3d 392 ]], the court explained, ‘ “Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. [Citations.] This review should be independent of the jury’s determination that evidence on another count was insufficient.” [Citation.]’ (Lewis, supra, at p. 656 .) ‘An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict.’ ” (Id. a