Filed 5/16/22 P. v. Dennis CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Terri K. Flynn-Peister, Judge. Reversed and remanded with directions.

Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

In 1994, Ralph Erving Dennis was convicted, along with a codefendant, of two counts of first degree murder. According to this court’s unpublished opinion which affirmed the convictions on appeal, the murders took place during the burglary and robbery of a home believed by the robbers to contain drugs and cash. The amended information filed against Dennis and his codefendant drew no distinction between their individual levels of culpability, alleging that each had committed two counts of first degree murder and describing both as a principal who was “vicariously armed with a firearm, and knew that another principal was personally armed” during the commission of the murders. At trial, the prosecutor made no attempt to prove the identity of the actual killer.

Dennis filed a petition pursuant to Penal Code[1] section 1170.95, seeking to have his first degree murder convictions vacated and to be resentenced. The trial court denied the petition without an evidentiary hearing after concluding the jury in Dennis’s trial had necessarily found he was either the actual killer of the two victims or that he had been a major participant in the robbery/burglary who acted with reckless indifference to human life. The court reasoned that because that latter finding matched language in the current statute defining first degree murder, it established as a matter of law that Dennis would also have been convicted of murder under current law—and thus that he was not entitled to resentencing under section 1170.95.

Dennis argues the trial court erred because the requirements for finding that an aider and abettor was a “major participant” in the underlying felony and had “acted with reckless indifference to human life” were clarified in People v. Banks (2015) 61 Cal.4th 788 (Banks), and People v. Clark (2016) 63 Cal.4th 522 (Clark), both of which were decided in the period between Dennis’s 1994 trial and the enactment of the current statute defining first degree murder. Because the Supreme Court effectively redefined the relevant standards in Banks and Clark, Dennis contends the findings made against him in 1994 do not satisfy the standards in the current murder statute.

We agree. Although Dennis’s jury was instructed it had to make a finding expressed in the same words used in the current statutory definition of first degree murder, the jury was also instructed the standard meant something different than what current law requires. The record of conviction provides little basis to evaluate Dennis’s individual culpability as required under Banks. Based on the record before us, it is impossible for us to definitively conclude Dennis would have been convicted of first degree murder under current law. Consequently, the trial court erred by concluding, as a matter of law, that he was not entitled to resentencing relief.

The order dismissing the petition is reversed, and the case is remanded to the trial court with directions to issue an order to show cause and to conduct a hearing to determine whether to vacate Dennis’s murder conviction, recall his sentence, and resentence him.

FACTS

Dennis and his codefendant, Marcus Marsh, were convicted of two counts of murder; the killings occurred during a burglary/robbery of a drug dealer. This court’s unpublished opinion on direct appeal from the judgment describes the circumstances of the murders: “Sherryl Madison rented a townhome along with Walid Mallalah. The two frequently smoked marijuana together. Madison also knew Dennis and he stayed at the townhome from mid-October to mid-November 1992. In early November, Madison heard Mallalah and Dennis discuss robbing a drug dealer who kept large amounts of both money and marijuana in his home, and also had a gun collection. On the morning of November 17, Mallalah borrowed Madison’s car taking Dennis with him. Later, Mallalah telephoned Madison and asked if anyone had called for him or Dennis. She replied no, and Mallalah said he had paged someone to call him at the townhome. A few minutes later a man called and Madison directed him to Mallalah’s location.

“Sometime after 7:30 a.m., [the victims] were shot to death in [the] home. A safe was open and several guns were lying on the ground. Among the missing property items were a .357 magnum handgun and a Spectre semiautomatic pistol.

“When Mallalah returned home, he was upset and perspiring. Madison asked what happened and he replied, ‘Don’t ask.’ A short time later, Madison saw Mallalah, Dennis and Marsh in the townhome’s garage along with bags of marijuana and guns. A late model white Pontiac was also parked in the garage. Each defendant had a hard look on his face and appeared pumped up. When Madison asked what happened, Dennis told her they had gone to [the victims’] house and, while Mallalah remained outside as a lookout, he and Marsh kicked in the front door, ordered [one victim] to open the safe and then killed both him and [the other victim.] Marsh complained Mallalah should not share in the division of the loot because his diagram of [the home] was inaccurate. Mallalah argued that, but for him, they would not have known about the house. Dennis resolved the dispute by saying Mallalah would receive his share.

“Dennis contacted an acquaintance, Karen Beemus, and said he had some guns he needed to sell. He showed Beemus the Spectre handgun, took her to the townhome, entering the residence with a key and returned carrying a .357 revolver. Beemus told Dennis she would sell the weapons for him. However, she was apprehended with the weapons still in her possession.

“The police found a notepad containing Marsh’s name and the telephone number for his pager among Dennis’ personal effects. Telephone records showed three calls from the townhome to Marsh’s pager the day before the murders and a fourth call at 7:26 a.m. the next day. When contacted by the police Marsh initially denied knowing Dennis, receiving a page from him or speaking to him by phone, but said his nickname, ‘Wise,’ sounded familiar. Later, he admitted speaking with Dennis after being paged, claiming it concerned meeting with some women. Marsh also gave inconsistent statements concerning the last time he spoke to Dennis. The police discovered one Lawrence Perkins rented a white Pontiac Grand Prix on November 16, listing Marsh as a second driver. In January 1993, Mallalah returned to his native country of Kuwait.” (People v. Marsh (Sept. 30, 1996, G017229 [nonpub. opn.] (Marsh I).)[2]

The amended information alleged crimes against Marsh and Dennis only, apparently because Mallalah remained outside of the court’s jurisdiction. The amended information alleged that both Marsh and Dennis were guilty of murder in the killing of Robert Klecker (count 1) and Karen Stevens (count 2). It further alleged that each defendant was vicariously armed in the commission of the murders and knew that another principal was armed. As special circumstances, the amended information alleged the defendants committed multiple murders, within the meaning of section 190.2, subdivision (a)(3), and the murders of both Klecker and Stevens were committed by defendants while they were engaged in the crimes of robbery and burglary in the first or second degree.

At trial, the prosecutor made no effort to prove which defendant was the actual killer (Marsh I, supra, G017229). The jury was not asked to make any findings concerning their relative culpability. The jury was instructed it could only find the alleged robbery/burglary special circumstance true as to either defendant if the jurors were satisfied beyond a reasonable doubt that the defendant had, “with reckless indifference to human life and as a major participant,” aided, abetted, counseled, commanded, induced solicited, requested, or assisted in the commission of the crime of robbery or burglary. The jury thereafter found the special circumstance true as to both defendants.

On appeal, this court concluded the evidence was sufficient to support the theory that “both defendants were major participants in the crimes and aided and abetted them with reckless indifference to human life.” (Marsh I, supra, G017229.) Our opinion made no attempt to identify the actual role played by either defendant: “The record supports the felony-murder special circumstance findings. Defendants kicked in the residence’s front door. The evidence suggests defendants found their victims in bed and physically assaulted them. Blood was found in the victims’ bedroom and the mattress and bedcovers were askew. Klecker suffered a lacerated scalp consistent with having been struck with a blunt instrument. The manner of killing also supports the findings. Stevens had been shot in the back of the head. The police found a pillow on top of Klecker’s body with holes in it, sooting around the edges and burnt material on the inside. The bullets were found underneath the carpet and had caused indentations in the concrete floor. This evidence indicates defendants killed their victims execution-style, shooting them as they lay on the ground with the pillow muffling the gunshots. Defendants’ attack on the sufficiency of the evidence is without merit.” (Marsh I, supra, G017229.)

On December 24, 2019, Dennis filed his petition for resentencing. In his petition, signed under penalty of perjury, Dennis asserts that he was convicted of murder pursuant to the felony murder rule or the natural and probable consequences doctrine, and that due to changes made to sections 188 and 189 in 2019, he could not now be convicted. He also asserted he was not the actual killer, and he denied he was a major participant in the underlying felony who acted with reckless indifference to human life during the course of the felony.

In reply, the prosecution challenged the constitutionality of the legislation that enacted section 1170.95, while acknowledging the point had already been decided against it. It also argued that the record of conviction in this case demonstrated Dennis was a major participant in the burglary/robbery who had acted with reckless indifference to human life, and thus that he would still have been convicted of first degree murder under current law and was therefore ineligible for resentencing relief.

In a supplemental brief, the prosecutor largely relied on the jury instructions given in connection with the special circumstance allegations, arguing the jury’s true finding on the special circumstance allegation reflected its implied determination that Marsh had been a major participant in those crimes who had acted with reckless indifference to human life. The prosecutor argued the jury’s implied finding satisfied the current statutory standard for first degree murder, and thus demonstrated as a matter of law that Marsh would have been convicted under current law.

The prosecutor also acknowledged the Supreme Court’s decisions in Banks and Clark had clarified the requirements for a special circumstances finding but argued defendants such as Dennis could not raise the issue in the context of a section 1170.95 proceeding; rather they were required to successfully challenge the findings in a habeas corpus proceeding before they could seek resentencing under section 1170.95.

The trial court accepted the prosecutor’s argument, concluded the jury’s implied finding was binding on Dennis for purposes of his resentencing petition, and agreed “there is no reason to believe [the finding] was any different in meaning or effect than it would have been if he had made it today.” (People v. Allison (2020) 55 Cal.App.5th 449, 459.)

The court also concluded that even if Banks and Clark provided a basis to challenge the jury’s special circumstances findings in this case, recent cases, including People v. Gomez (2020) 52 Cal.App.5th 1, 14-17, review granted Oct. 14, 2020, S264033 (Gomez), and People v. Galvan (2020) 52 Cal.App.5th 1134, 1142 (Galvan) established “that a section 1170.95 petition is not the proper avenue for a challenge under Banks and Clark to the jury’s prior factual finding that Petitioner was a major participant who acted with reckless indifference to human life.”

As discussed below, we disagree.

DISCUSSION

1. Resentencing Law

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Sen. Bill 1437), amended the felony murder rule and eliminated the natural and probable consequences doctrine as a means of proving murder. (Stats. 2018, ch. 1015.) Sen. Bill 1437 was enacted “to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats., 2018, ch. 1015, § 1, subd. (f).) Section 189, as amended, now provides that in cases where a death occurs during the perpetration or attempted perpetration of a felony listed in section 189, subdivision (a), the defendant is liable for murder only if the person was the actual killer, the person acted with intent to kill in aiding, assisting, or soliciting the killer, or if the person “was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.”

Sen. Bill 1437 also provides a remedy for persons previously convicted of murder on a felony murder or murder under a natural and probable consequences theory. Section 1170.95 permits an individual to petition the trial court to vacate the conviction and to be resentenced on any remaining counts if he or she could not have been convicted of murder because of Sen. Bill 1437’s changes to the definition of the crime. Section 1170.95 provides a petition for relief must include: “(A) A declaration by the petitioner that the petitioner is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petitioner’s conviction. [¶] (C) Whether the petitioner requests the appointment of counsel.” (§ 1170.95, subd. (b)(1).)

If the petition contains all required information, section 1170.95, subdivision (c), prescribes a two-step process for the court to determine if an order to show cause should issue: “The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response . . . and the petitioner may file and serve a reply . . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.” (People v. Lewis (2021) 11 Cal.5th. 952, 961 (Lewis).)

In assessing whether a prima facie showing has been made, the trial court looks at “documents in the court file or otherwise part of the record of conviction that are readily ascertainable [including] the complaint, information or indictment filed against the petitioner; the verdict form or factual basis documentation for a negotiated plea; and the abstract of judgment.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, review granted Mar. 28, 2020, S260493, abrogated on another point in Lewis, supra, 11 Cal.5th at p. 962.) The court may also consider the appellate court’s opinion on review as part of the record of conviction. (Lewis, supra, at p. 972.)

“[T]he trial court should not weigh evidence or make credibility determinations.” (People v. Drayton (2020) 47 Cal.App.5th 965, 968 (Drayton), abrogated on another point in Lewis, supra, 11 Cal.App.5th at p. 963.) Instead, “the trial court should accept the assertions in the petition as true unless facts in the record conclusively refute them as a matter of law.” (Drayton, supra, at p. 968; People v. Duchine (2021) 60 Cal.App.5th 798, 811-815 (Duchine).)

“If, accepting the petitioner’s asserted facts as true, he or she meets the requirements for relief listed in section 1170.95, subdivision (a), then the trial court must issue an order to show cause.” (Drayton, supra, 47 Cal.App.5th at p. 968.) “In assessing the petitioner’s prima facie showing, the trial court should not weigh evidence or make credibility determinations.” (Ibid.)

If an order to show cause issues, the court must hold a hearing to determine whether to vacate the murder conviction. (§ 1170.95, subd. (d)(1).) If the prosecutor does not stipulate to vacating the conviction and resentencing the petitioner (§ 1170.95, subd. (d)(2)), the prosecution has the opportunity to present new and additional evidence at the hearing to demonstrate the petitioner is not entitled to resentencing (§ 1170.95, subd. (d)(3)). The petitioner also has the opportunity to present new or additional evidence in support of the resentencing request. (Ibid.) It is during that phase that the court may weigh the evidence in reaching a decision. (Duchine, supra, 60 Cal.App.5th at pp. 811-815.)

2. Banks and Clark

Dennis argues the 1994 jury’s implied determinations that he was a major participant in the underlying robbery/burglary and he acted with reckless indifference is not sufficient to establish he would have been convicted of first degree murder under current law because Banks and Clark effectively altered the meaning of those standards. On this record, we agree.

Banks established an analytical framework for determining who is a “major participant” in an underlying felony for purposes of establishing the felony‑murder special circumstance that renders a defendant eligible for the death penalty; Clark focused on what it means to act with “reckless indifference to human life” in connection with the same issue.[3] (Clark, supra, 63 Cal.4th at p. 614.)

In Banks, supra, 61 Cal.4th 788, the Supreme Court emphasized the need to focus on a defendant’s “individual culpability” (id. at p. 801) to determine whether he or she was a “major participant[] in the crime” (id. at p. 798). (See Enmund v. Florida (1982) 458 U.S. 782, 798 [“The focus must be on his culpability, not on that of those who committed the robbery and shot the victims”].) “A sentencing body must examine the defendant’s personal role in the crimes leading to the victim’s death and weigh the defendant’s individual responsibility for the loss of life, not just his or her vicarious responsibility for the underlying crime.” (Banks, supra, at p. 801.)

Banks also stated that in order to qualify as a major participant, “a defendant’s personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder.” (Banks, supra, 61 Cal.4th at p. 802.) In evaluating that issue, the court must consider a variety of issues: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? . . . Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death?” (Id. at p. 803, fn. omitted.)

In Clark, the court explained that reckless indifference means something more than an awareness that a risk of death is foreseeable in any violent felony. (Clark, supra, 63 Cal.4th at p. 617-618.) Even “the fact a participant [or planner of] an armed robbery could anticipate lethal force might be used” is not sufficient to establish reckless indifference to human life. (Banks, supra, 61 Cal.4th at p 808 (italics added); see Clark, at p. 623.) “The mere fact of a defendant’s awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life.” (Id. at p. 618.) Reckless indifference “encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.” (Id. at p. 617, italics added.)

Reckless indifference has both a subjective and an objective element. (Clark, supra, 63 Cal.4th at p. 617.) Subjectively, “[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,” and he or she must consciously disregard “the significant risk of death his or her actions create.” (Banks, supra, 61 Cal.4th at p. 801; see Clark, at p. 617.) Objectively, “‘[t]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.’” (Ibid.)

As the Supreme Court recently observed in applying Clark, “[w]e analyze the totality of the circumstances to determine whether [an individual defendant] acted with reckless indifference to human life. Relevant factors include: Did the defendant use or know that a gun would be used during the felony? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant’s knowledge of his or her confederate’s propensity for violence or likelihood of using lethal force? What efforts did the defendant make to minimize the risks of violence during the felony? [Citation.] ‘“[N]o one of these considerations is necessary, nor is any one of them necessarily sufficient.”’” (In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).)

Banks and Clark clarified the standards to such a degree that courts have treated the clarification as effectively a change in the law which warrants allowing previously convicted defendants another opportunity to challenge findings made against them. (Galvan, supra, 52 Cal.App.5th at p. 1141 [the two cases “clarified the requirements for the felony-murder special circumstance so significantly that courts have allowed defendants to challenge the validity of pre‑Banks and Clark special circumstances findings via habeas corpus, making an exception to the rule that ordinarily bars a defendant from challenging the sufficiency of the evidence in a habeas petition”]; see also, Scoggins, supra, 9 Cal.5th at p. 673-674 [Supreme Court allows a defendant whose conviction predated Banks and Clark to seek habeas corpus relief, despite the fact his challenge to the reckless indifference finding had already been raised and rejected on direct appeal].)

Some courts have held that the availability of habeas corpus relief in these circumstances obligates defendants to first pursue that remedy before attempting to raise the same point in the context of a section 1170.95 petition. (See, e.g., Gomez, supra, 52 Cal.App.5th 1, review granted; Galvan, supra, 52 Cal.App.5th 1134; People v. Murillo (2020) 54 Cal.App.5th 160, 168-169, review granted Nov. 18, 2020, S264978; People v. Allison (2020) 55 Cal.App.5th 449, 456-457.) The trial court relied upon this authority as an alternative basis for denying Dennis’s petition. We disagree with the trial court’s analysis.

In Galvan, the court ruled the existence of a habeas corpus remedy after Banks and Clark rendered it “unnecessary” for a defendant to petition for relief on the same basis under section 1170.95; moreover, the court reasoned it would be unfair to allow the issue to be raised in a section 1170.95 petition because the statutory standard for relief is more favorable to petitioners than is the standard of review on direct appeal; thus, it would give petitioners an “enormous advantage” over other similarly situated defendants based solely on their date of conviction. (Galvan, supra, 52 Cal.App.5th at pp. 1142-1143.)

But section 1170.95 provides a resentencing remedy to all defendants who meet its criteria; its availability is not conditioned on establishing that other remedies are unavailable. Courts cannot add such a condition out of concern that the statutory remedy is too generous in comparison to another potential alternative. And defendants convicted after Banks and Clark are not “similarly situated” to those convicted at an earlier time, for purposes of this issue. Defendants convicted after Banks and Clark had the benefit of the stricter Banks/Clark standards at their trials. Dennis did not.

Gomez is no more persuasive. In that case, the court again focused on the more favorable standard of review available to a petitioner under section 1170.95, before concluding it was unfair to the prosecutor because “[t]he People should not be required to prove beyond a reasonable doubt, a second time, that Gomez satisfied those requirements for the special circumstance findings.” (Gomez, supra, 52 Cal.App.5th at p. 17, review granted.) But section 1170.95 directs that a defendant whose murder conviction was based on vicarious theories which have now been disapproved should have his or her conviction vacated if the prosecutor did not prove at trial, and cannot prove now, that the defendant would still be culpable for murder under current law. If there is uncertainty about the defendant’s current culpability for murder, the Legislature placed the burden squarely on the prosecutor to prove it.

We are not persuaded that allowing a defendant to seek relief based on Banks and Clark in a section 1170.95 proceeding will mean that every pre-Banks and Clark defendant who was found to be a major participant in the underlying felony will be entitled to relief. We believe the trial record will often provide sufficient detail about the petitioner’s individual role in the crimes to allow a determination that a true special circumstance finding satisfies the standards set forth in Banks and Clark.

So it was in People v. Douglas (2020) 56 Cal.App.5th 1, 3-4 (Douglas). There the court recited in some detail the circumstances of the defendant’s involvement in the felony, including that he planned the armed robbery of a video store, supplied the loaded gun to his cohort, was in charge while the crime was carried out, and that after the clerk was shot, he not only lingered to empty the till, but also “emptied [the clerk’s] pockets while [he] lay on the ground with blood pooling around his head.” Two days later, he and the shooter committed another armed robbery. (Ibid.) Given those facts, the court concluded that “[u]nder Banks, Clark, and Scoggins, Douglas’s culpability disqualifies him from resentencing.” (Id. at p. 11.)

In this case, the record of conviction does not provide such clarity as to whether Dennis acted with reckless disregard for human life. While the instruction given to the jury did offer a definition of reckless indifference, that definition did not match the requirements of Clark. It stated only that “[a] defendant acts with reckless indifference to human life when such defendant, knew or was aware that [his] acts involved an extreme likelihood that such acts could result in the death of an innocent human being.” The instruction given at trial did not advise the jury that the standard implied a “willingness to kill”; nor did it explain the factors to be considered in deciding whether the defendant’s own conduct, his own understanding of the circumstances, and his own mental state, met the reckless indifference standard. Consequently, the jury instruction did not establish as a matter of law that the jury’s finding met the standard created by Clark.

The record provides little basis to assess the extent of Dennis’s individual participation once he and Marsh entered the home. Our prior opinion, which seems to have been relied on by the trial court in its ruling, fails to address that issue. Instead, it states that, as between Dennis and Marsh, they kicked down the door and ordered Klecker to open the safe. Klecker and Stevens were then killed. As we observed at the outset, the prosecutor failed to prove the identity of the actual killer at trial. If we assume (as we must because the issue was never resolved) that Dennis was not the actual shooter, we have no evidence related to what he did once the burglary/robbery was underway.

And therein lies the problem. As Banks makes clear, it is Dennis’s individual culpability—rather than the blend of his culpability with that of Marsh—which must be assessed in deciding whether he was a major participant in the felony who acted with reckless disregard for human life. It is not enough to prove two perpetrators broke into a home, and when they left, two other people had been murdered. As the Supreme Court observed in a slightly different context in People v. Woodell (1998) 17 Cal.4th 448, the probative value of an appellate opinion is case specific, and “t is certainly correct that an appellate opinion might not supply all the answers.” ([i]Id. at p. 457.)

Because the record of conviction—including the appellate opinion describing the circumstances of the crime—is insufficient to establish as a matter of law that Dennis acted with reckless disregard for human life, we conclude the trial court erred in denying the petition without issuing an order to show cause and conducting a hearing on the issue.

DISPOSITION

The postjudgment order is reversed. The case is remanded to the trial court with directions to issue an order to show cause and to hold a hearing to determine whether to vacate Dennis’s murder conviction, recall his sentence and resentence him.

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

SANCHEZ, J.

^[1] All further statutory references are to the Penal Code.

[2] Both Dennis and the Attorney General rely on the appellate opinion’s statement of facts to establish the circumstances of the murders.

[3] For statutory reasons, the same analysis applies “‘to all allegations of a felony-murder special circumstance, regardless of whether the People seek and exact the death penalty or a sentence of life without parole.’” (Banks, supra, 61 Cal.4th at p. 804.)