Banks and Clark factors in California

2025The Banks and Clark factors The overlapping factors for assessing whether a defendant was a major participant in an underlying serious felony and acted with reckless indifference to human life for purposes of section 190.2, subdivision (d), and thus for section 189, subdivision (e)(3), were identified in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 , and reiterated more recently in In re Scoggins (2020) 9 Cal.5th 667 (Scoggins).

2024(Jones, supra, 86 Cal.App.5th at p. 1092.) It held that “[i]n addition to the Banks and Clark factors, a defendant’s youthful age must be considered.” (Id. at p. 1088, fn. 7.) Rocha, who was 20 years old at the time of the crime, provides no authority for the proposition that his level of intoxication should also have been considered.6 However, as explained in Banks, Clark, and Scoggins, in determining whether a defendant acted with reckless indifference to human life, we must “consider the totality of the circumstances.” (Banks, supra, 61 Cal.4th at p. 802 .) Thus, the factors identified in B

2025Yet it is not certain forfeiture applies because the evidentiary hearing occurred in October 2023, and at least one appellate court determined as early as December 2022 that, “[i]n addition to the Banks and Clark factors, a defendant’s youthful age must be considered.” (People v. Jones (2022) 86 Cal.App.5th 1076 , 1088, fn. 7, italics added.) We need not decide this issue, though, because even if the court erred in not considering Farley’s youth, the error was harmless.

2024(Jones, supra, 86 Cal.App.5th at p. 1092.) It held that “[i]n addition to the Banks and Clark factors, a defendant’s youthful age must be considered.” (Id. at p. 1088, fn. 7.) Rocha, who was 20 years old at the time of the crime, provides no authority for the proposition that his level of intoxication should also have been considered.6 However, as explained in Banks, Clark, and Scoggins, in determining whether a defendant acted with reckless indifference to human life, we must “consider the totality of the circumstances.” (Banks, supra, 61 Cal.4th at p. 802 .) Thus, the factors identified in B

2022(Compare CALJIC No. 8.80.1 (1996 rev.) (6th ed. 1996) with CALJIC No. 8.80.1 (Fall 2015 ed.); see also Nunez, supra, 57 Cal.App.5th at p. 92, rev.gr.; Gomez, supra, 52 Cal.5th at p. 14, fn. 6, rev.gr. [CALCRIM No. 703 before Banks and Clark]; CALCRIM No. 703 (2020 ed.).) Rather, while both CALJIC No. 8.80.1 and CALCRIM No. 703 now include optional language drawn from Banks and Clark regarding the factors a jury may consider, neither Banks nor Clark held that the trial court has a sua sponte duty to instruct on those factors. ( Price, supra, 8 Cal.App.5th at pp. 450-451 [jury instructions that

2022(Compare CALJIC No. 8.80.1 (1996 rev.) (6th ed. 1996) with CALJIC No. 8.80.1 (Fall 2015 ed.); see also Nunez, supra, 57 Cal.App.5th at p. 92, rev.gr.; Gomez, supra, 52 Cal.5th at p. 14, fn. 6, rev.gr. [CALCRIM No. 703 before Banks and Clark]; CALCRIM No. 703 (2020 ed.).) Rather, while both CALJIC No. 8.80.1 and CALCRIM No. 703 now include optional language drawn from Banks and Clark regarding the factors a jury may consider, neither Banks nor Clark held that the trial court has a sua sponte duty to instruct on those factors. ( Price, supra, 8 Cal.App.5th at pp. 450-451 [jury instructions that

2022While their reasoning differed, both Galvan and Gomez concluded “the proper remedy for challenging a special circumstance finding is by a petition for habeas corpus, not a petition for resentencing under section 1170.95.” (Galvan, at p. 1137; see Gomez, at p. 17; see also People v. Murillo (2020) 54 Cal.App.5th 160 , 168, review granted Nov. 18, 2020, S264978; People v. Allison (2020) 55 Cal.App.5th 449 , 458 [Banks and Clark merely clarified the law; the phrases “major participant” and “reckless indifference to human life” are interpreted as they are used in common parlance; and “[j]ury instr

2022Given these circumstances, which 5 See also Harris, supra, 60 Cal.App.5th at p. 958, review granted [courts can determine resentencing eligibility “after reviewing the available record of conviction in light of the Banks and Clark factors”]; Nunez, supra, 57 Cal.App.5th at pp. 97-98, review granted (conc. opn. of Ashmann-Gerst, J.) [true special-circumstance finding precluded resentencing because it satisfied Banks and Clark]; accord Murillo, supra, 54 Cal.App.5th at pp. 169-173, review granted [resentencing was properly denied because “record of conviction establishe[d] as a matter of law tha

2026In fact, in Strong, our Supreme Court noted that “the mandatory [jury] instructions [for a felony-murder special-circumstance finding] did not change in the wake of Banks and Clark” (Strong, supra, 13 Cal.5th at p. 719 ) and recognized that the bracketed language in CALCRIM 703 on the Banks and Clark factors is “optional.” (Strong, at p. 719, fn. 4; see also Judicial Council of Cal., Crim. Jury Instns. (2026), Bench Notes to CALCRIM No. 540B, p. 289 & Bench Notes to CALCRIM No. 703, p. 428.) 20 Under extant precedent, we conclude the trial court satisfied its sua sponte duty and did not otherw

2026Such mention was not required, however, because “the standard jury instruction has not in fact changed in the wake of Banks and Clark.” (Strong, supra, 13 Cal.5th at p. 719 , fn. omitted; accord, Farfan, supra, 71 Cal.App.5th at p. 955.) Instead, it now includes a list of the Banks and Clark factors that may be given in the trial court’s discretion.

2021(See Galvan, supra, 52 Cal.App.5th at p. 1143, review granted [“section 1170.95 does not allow a Banks and Clark challenge to a felony-murder special circumstance and . . . habeas corpus is the correct procedure”].) Defendant must first have his special circumstance finding vacated through a habeas proceeding before he may seek relief through section 1170.95 as one who then “could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(3).) The trial court’s denial of his petition under section 1170.95 be

2021(See People v. Secrease (2021) 63 Cal.App.5th 231 , 264, review granted June 30, 2021, S268862 [at the section 1170.95, subdivision (c), prima facie entitlement- to-relief stage of the process, the court, without resolving conflicts in the evidence and making findings, may consider whether the evidence at a pre-Banks/Clark trial supported the felony-murder special-circumstance finding under Banks and Clark]; People v. Harris, supra, 60 Cal.App.5th at p. 958, review granted [“the superior court could properly determine [petitioner] was ineligible for relief as a matter of law only after reviewi

2025Conclusion Whether Dollar was a major participant who acted with reckless indifference to human life “is predominantly a factual question reviewable for substantial evidence.” (Oliver, supra, 90 Cal.App.5th at p. 480.) Although we have disagreed with some of the trial court’s more liberal factual inferences, these granular factual determinations were one of many factual determinations the trial court made in its evaluation of the Banks and Clark factors.

2025Conclusion Whether Dollar was a major participant who acted with reckless indifference to human life “is predominantly a factual question reviewable for substantial evidence.” (Oliver, supra, 90 Cal.App.5th at p. 480.) Although we have disagreed with some of the trial court’s more liberal factual inferences, these granular factual determinations were one of many factual determinations the trial court made in its evaluation of the Banks and Clark factors.

2022(Compare CALJIC No. 8.80.1 (1996 rev.) (6th ed. 1996) with CALJIC No. 8.80.1 (Fall 2015 ed.); see also Nunez, supra, 57 Cal.App.5th at p. 92, rev.gr.; Gomez, supra, 52 Cal.5th at p. 14, fn. 6, rev.gr. [CALCRIM No. 703 before Banks and Clark]; CALCRIM No. 703 (2020 ed.).) Rather, while both CALJIC No. 8.80.1 and CALCRIM No. 703 now include optional language drawn from Banks and Clark regarding the factors a jury may consider, neither Banks nor Clark held that the trial court has a sua sponte duty to instruct on those factors. ( Price, supra, 8 Cal.App.5th at pp. 450-451 [jury instructions that

2021A number of cases have found that “the proper remedy for challenging a special circumstance finding is by a petition for habeas corpus, not a petition for resentencing under section 1170.95.” (Galvan, supra, 52 Cal.App.5th at p. 1137; see Murillo, supra, 54 Cal.App.5th at pp. 167-168); Gomez, supra, 52 Cal.App.5th at p. 17; Jones, supra, 56 Cal.App.5th at pp. 483-484 [“‘Jury instructions regarding the mental state required for a felony-murder special circumstance are not defective if they do not include the Banks and Clark factors. [Citation.] Indeed, the pattern jury instruction regarding maj

2025(See Estrada, supra, 11 Cal.4th at p. 578 .) CALJIC No. 8.21 also told the jury that someone who participates in a violent felony with lethal weapons should foresee bloodshed is possible.

2025(See Estrada, supra, 11 Cal.4th at p. 578 [“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 created by his or her participation in the underlying felony”]; Price, supra, 8 Cal.App.5th at p. 444 Farfan, supra, 71 Cal.App.5th at p. 955 [“CALCRIM No. 703 now includes a list of the Banks and Clark factors which may be given in the trial court’s discretion.”].) 26 [trial court’s definition of “‘reckless indifference to human life’ as

2026Even assuming arguendo that the trial court should have instructed that reckless indifference to human life includes consideration of whether the defendant “engages in criminal activity that a reasonable person would know involves a grave risk of death” (CALCRIM 540B & 703), the circumstances of the instant case lead us to conclude the error was harmless under the beyond a reasonable doubt standard of Chapman v. California (1976) 386 U.S. 18 .10 (See People v. Merritt (2017) 2 Cal.5th 819, 831 [holding that a jury instruction omitting elements of robbery was subject to the Chapman harmless err

2022(See People v. Merritt (2017) 2 Cal.5th 819, 831 [finding jury instruction omitting elements of robbery subject to Chapman harmless error analysis].) The Banks and Clark factors significantly overlap (Strong, supra, 13 Cal.5th at p. 706), and the jury here was instructed under Banks to consider the role defendant played in planning the criminal enterprise that led to death; the role defendant played in supplying or using legal weapons; defendant’s awareness of particular dangers posed by the nature of the crime, any weapons used, or past experience or conduct of the other participant; defendan

2025The Banks and Clark factors The overlapping factors for assessing whether a defendant was a major participant in an underlying serious felony and acted with reckless indifference to human life for purposes of section 190.2, subdivision (d), and thus for section 189, subdivision (e)(3), were identified in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 , and reiterated more recently in In re Scoggins (2020) 9 Cal.5th 667 (Scoggins).

2024All 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.’ ” (People v. Banks, supra, 61 Cal.4th at p. 803 .) Here, based on the Banks and Clark factors, the trial court as the trier of fact could reasonably conclude beyond a reasonable doubt that defendant was a major participant who acted with reckless indifference to human life even if he was not present when Jackson stabbed the husband and wife.

2022(See Banks, at p. 803.) Similarly, “Clark articulated case-specific factors that are relevant to whether a defendant exhibited reckless indifference to human life.”8 (Pineda, at p. 799; see also Clark, at pp. 618-623.) “Following the decisions in Banks and Clark, the Judicial Council’s Advisory Committee on Criminal Jury Instructions added optional language to CALCRIM No. 703 designed to capture the culpability factors enunciated in those decisions. [Citation.] The accompanying Bench Note advises that the trial court should determine whether these optional instructions setting forth guidance o

2021(See People v. Secrease (2021) 63 Cal.App.5th 231 , 264, review granted June 30, 2021, S268862 [at the section 1170.95, subdivision (c), prima facie entitlement- to-relief stage of the process, the court, without resolving conflicts in the evidence and making findings, may consider whether the evidence at a pre-Banks/Clark trial supported the felony-murder special-circumstance finding under Banks and Clark]; People v. Harris, supra, 60 Cal.App.5th at p. 958, review granted [“the superior court could properly determine [petitioner] was ineligible for relief as a matter of law only after reviewi

2022Although the order did not cite to Clark, the Banks and Clark factors overlap. ( Clark, supra, 63 Cal.4th at pp. 614-615; In re Loza (2017) 10 Cal.App.5th 38, 52 .) In any event, the evidence is sufficient to support the jury’s true findings on the felony-murder special circumstance allegations.

2022(In re McDowell (2020) 55 Cal.App.5th 999 , 1014 [defendant had a brief but critical opportunity to intervene when accomplice fired a warning shot]; Loza, supra, 10 Cal.App.5th 38, 51 [defendant did not intervene when accomplice counted down for five seconds before shooting].) We acknowledge that some of the Banks and Clark factors are either neutral or do not support a finding of reckless indifference.

2022The Banks and Clark factors The reckless indifference requirement was first articulated in Tison v. Arizona (1987) 481 U.S. 137 and Enmund v. Florida (1982) 458 U.S. 782 in relation to the imposition of the death penalty.

2020The Banks and Clark factors are derived from the United States Supreme Court's opinions in Tison v. Arizona (1987) 481 U.S. 137 , and Enmund v. Florida (1982) 458 U.S. 782 .

2021Rather, the high court in those cases ‘merely clarified the “major participant” and “reckless indifference to human life” principles that existed when defendant’s conviction became final.’ (In re Miller (2017) 14 Cal.App.5th 960, 978 ; Allison, supra, 55 Cal.App.5th at p. 458.)” (People v. Nunez, supra, 57 Cal.App.5th at p. 92, rev. granted.) “Jury instructions regarding the mental state required for a felony-murder special circumstance are not defective if they do not include the Banks and Clark factors. [Citation.] Indeed, the pattern jury instruction regarding major participation and reckle

2021(See In re Moore (2021) 68 Cal.App.5th 434 , 439 (Moore).) In Moore and cases it cites, our appellate courts have granted habeas relief, applying the Banks and Clark factors to vacate special circumstance findings on insufficient evidence grounds. 7 Our high court 7 Moore, supra, 68 Cal.App.5th at p. 450, citing In re Taylor (2019) 34 Cal.App.5th 543 (Taylor), In re Ramirez (2019) 32 Cal.App.5th 384 , 404- 406 (Ramirez), In re Bennett (2018) 26 Cal.App.5th 1002, 1018-1027 (Bennett), In re Miller (2017) 14 Cal.App.5th 960, 966-967, 974-980 (Miller); see Taylor, at pp. 557-562.

2021(Jones, supra, 56 Cal.App.5th at p. 484; see also In re Scoggins (2020) 9 Cal.5th 667 , 671, 673 [explaining that Banks and Clark “clarified” the meaning of “major participant” and “reckless indifference to human life” for purposes of the felony-murder special circumstance].) “The phrases ‘major participant’ and ‘reckless indifference to human life’ do not have specialized definitions, but are interpreted as they are used in common parlance” and “[j]ury instructions regarding the mental state required for a felony-murder special circumstance are not defective if they do not include the Banks a

2021(Jones, supra, 56 Cal.App.5th at p. 484; see also In re Scoggins (2020) 9 Cal.5th 667 , 671, 673 [explaining that Banks and Clark “clarified” the meaning of “major participant” and “reckless indifference to human life” for purposes of the felony-murder special circumstance].) “The phrases ‘major participant’ and ‘reckless indifference to human life’ do not have specialized definitions, but are interpreted as they are used in common parlance” and “[j]ury instructions regarding the mental state required for a felony-murder special circumstance are not defective if they do not include the Banks a

2026(See Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [party “effectively concedes” issue by failing to address it in brief]; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [parties “impliedly concede” an issue by failing to address it].)4 In any event, we have independently reviewed the record and conclude that substantial evidence supports the trial court’s analysis of the Banks and Clark factors and its ultimate conclusion that the People proved beyond a reasonable doubt that defendant was a major participant in the attempted robb

2026(See Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [party “effectively concedes” issue by failing to address it in brief]; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [parties “impliedly concede” an issue by failing to address it].)4 In any event, we have independently reviewed the record and conclude that substantial evidence supports the trial court’s analysis of the Banks and Clark factors and its ultimate conclusion that the People proved beyond a reasonable doubt that defendant was a major participant in the attempted robb

2026(See People v. Penunuri (2018) 5 Cal.5th 126, 142.) In making a credibility determination, therefore, the trial court necessarily was acting as the finder of fact. 10 When discussing the Banks and Clark factors, the trial court at no point referred to the sufficiency of the evidence, or what conclusions the evidence could support, but rather weighed the evidence and made its own findings.

2026Even assuming arguendo that the trial court should have instructed that reckless indifference to human life includes consideration of whether the defendant “engages in criminal activity that a reasonable person would know involves a grave risk of death” (CALCRIM 540B & 703), the circumstances of the instant case lead us to conclude the error was harmless under the beyond a reasonable doubt standard of Chapman v. California (1976) 386 U.S. 18 .10 (See People v. Merritt (2017) 2 Cal.5th 819, 831 [holding that a jury instruction omitting elements of robbery was subject to the Chapman harmless err