California Court of Appeal Mar 4, 2022 No. E074380Unpublished
Filed 3/4/22 P. v. Cross CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E074380
v. (Super.Ct.No. ICR15222)
HARLEY HERBERT CROSS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson and
Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
In 1992, petitioner Harley Herbert Cross was convicted of (among other things)
first degree murder, with a robbery-murder special circumstance. In 2019, he filed a 1
petition for resentencing under the then-recently amended version of the felony-murder
statute. (See § 1170.95.)1 The trial court denied the petition; it ruled that the robbery-
murder special circumstance finding conclusively established that he was not eligible for
Petitioner contends that this was error. Under a published opinion of this court,
the trial court’s ruling was correct. Hence, we will affirm.
I
FACTUAL, PROCEDURAL, AND LEGAL DEVELOPMENTS
A. The Tison Standard.
Under Tison v. Arizona (1987) 481 U.S. 137 (Tison), a person found guilty of
murder on a felony-murder theory cannot constitutionally be sentenced to death unless he
or she either (1) was the actual killer, (2) intended to kill, or (3) was a major participant in
the underlying felony and acted with reckless indifference to human life. (Id. at pp. 150,
158.)
In 1990, Proposition 115 amended section 190.2 so as to expressly incorporate this
requirement of Tison and to make it applicable to a sentence of life without the possibility
of parole. (See now § 190.2, subds. (b), (c), (d).)
1 This and all further statutory citations are to the Penal Code, unless otherwise specified.
2
B. Statement of Facts.
The following facts are taken from our opinion in petitioner’s appeal from his
conviction. (See People v. Lewis (2021) 11 Cal.5th 952, 970-972.)
Petitioner sold his car to the six victims, whose car had broken down. The next
day, he told an acquaintance that he wanted to “rip them off” and to get his car back from
them. He asked the acquaintance to help him.
Petitioner persuaded the victims to let him drive them in the car to Los Angeles,
stopping first at the trailer of a friend. It was nighttime. When petitioner turned onto a
dirt road, the victims told him to stop. Instead, he turned off the headlights and kept
going. After parking near a trailer, petitioner took the car keys, got out, and
“disappeared.” When he reappeared, three masked men were with him. One had a
shotgun; petitioner and the other two men had knives.
The man with the shotgun demanded money. One of the victims said they had no
money. The man with the shotgun shot him, fatally. Petitioner echoed the demand for
money. Some of the victims complied; the others hid their money in the car. When
petitioner said, “Let’s go,” he and the other robbers drove away in the car.
Petitioner testified that the three men were strangers who got the drop on him at
the trailer. He simply explained to the victims that the man with the shotgun wanted their
money. The man with the shotgun ordered him to drive them away.
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C. Petitioner’s Conviction and Appeal.
At petitioner’s trial, in 1992, the jury was instructed on the felony-murder rule. It
was also instructed, in accordance with Tison, that it could not find the robbery-murder
special circumstance to be true unless petitioner either (1) intended to kill or (2) was a
major participant in the underlying robbery and acted with reckless indifference to human
life. (CALJIC 8.80.1.)
The jury found petitioner guilty of:
Count 1: First degree murder (§§ 187, subd. (a), 189), with an armed principal
enhancement (§ 12022, subd. (a)(1)) and a robbery-murder special circumstance (§ 190.2,
subd. (a)(17)).
Count 2: Robbery (§ 211) with an armed principal enhancement.
Petitioner was sentenced to life without the possibility of parole plus one year.
In 1996, this court affirmed the judgment. (People v. Cross (Feb. 29, 1996,
E011525) [nonpub. opn.].) We held, among other things, that there was sufficient
evidence that petitioner acted with reckless indifference to human life to support the
robbery-murder special circumstance.
D. Banks and Clark.
In 2015 and 2016, the California Supreme Court issued two opinions relating to
the meaning of “major participant” and “reckless indifference to human life.”
First, in People v. Banks (2015) 61 Cal.4th 788 (Banks), the evidence showed that
defendant Matthews acted as the getaway driver in a planned armed robbery, which
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turned into a murder when another participant shot a security guard. (Id. at p. 795.) Our
Supreme Court held that, under Tison, this was insufficient evidence that he was a major
participant (Banks, supra, at pp. 804-807) as well as insufficient evidence that he acted
with reckless indifference to life. (Id. at pp. 807-811.) It disapproved cases holding that
mere knowledge that one’s accomplice in a robbery is armed is sufficient to establish
reckless indifference to human life. (Id. at p. 809, fn. 8.)
In 2016, in People v. Clark (2016) 63 Cal.4th 522 (Clark), the Supreme Court
found insufficient evidence that the defendant acted with reckless indifference to life.
(Id. at pp. 614-623.) It specifically listed five factors that are potentially relevant to this
inquiry. First, “[a] defendant’s use of a firearm, even if the defendant does not kill the
victim or the evidence does not establish which armed robber killed the victim, can be
significant to the analysis of reckless indifference to human life.” (Id. at p. 618.)
Second, a defendant’s physical presence at the scene, while not absolutely required, is
relevant, as is the failure to render aid to a victim. (Id. at pp. 619-620.) Third, the
duration of the felony is relevant. (Id. at pp. 620-621.) Fourth, it is relevant whether the
defendant knows that an accomplice has a propensity to violence, especially lethal
violence. (Id. at p. 621.) Fifth, it is relevant, although not controlling, that the defendant
took steps to minimize the risk to human life. (Id. at pp. 621-622.)
E. Senate Bill No. 1437.
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(SB 1437), effective January 1, 2019. (Stats. 2018, ch. 1015, pp. 6673-6676.) SB 1437,
5
among other things, amended section 189 so as to provide that the felony murder rule
(§ 189, subd. (a)) applies to a person only if:
“(1) The person was the actual killer.
“(2) The person was not the actual killer, but, with the intent to kill, aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer
in the commission of murder in the first degree.
“(3) The person was a major participant in the underlying felony and acted with
reckless indifference to human life . . . .
“[(4) T]he victim is a peace officer who was killed while in the course of the
peace officer’s duties, where the defendant knew or reasonably should have known that
the victim was a peace officer engaged in the performance of the peace officer’s duties.”
(§ 189, subds. (e), (f).)
SB 1437 also enacted section 1170.95, which allows a person who has been
convicted of first or second degree murder under a felony murder theory, but who could
no longer be so convicted under SB 1437, to petition to have the conviction vacated. If
the underlying felony was not charged, the conviction is reduced to the underlying
felony, and the petitioner is resentenced. (§ 1170.95, subd. (e).) The petitioner also must
be resentenced on any remaining counts. (§ 1170.95, subd. (a).)
F. Petition for Resentencing.
In 2019, petitioner, in propria persona, filed a petition for resentencing under
section 1170.95. Counsel was appointed for him.
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At a status conference, the prosecutor moved to dismiss the petition. He argued,
“A robbery/murder special circumstances was found true, which based on my experience,
does require at least a finding of major participant with reckless indifference . . . .” The
trial court agreed and granted the motion.
II
THE EFFECT OF THE FELONY-MURDER SPECIAL CIRCUMSTANCE
Petitioner contends that the trial court erred by ruling that the robbery-murder
special circumstance conclusively established that he was not eligible for resentencing.
He argues that Banks and Clark narrowed the definition of both “major participant” and
“reckless indifference to human life,” so that the jury’s pre-Banks and Clark true finding
does not establish that he comes within that definition.
In People v. Jones (2020) 56 Cal.App.5th 474 (Jones), review granted January 27,
2021, S265854, this court rejected an identical contention. (Id. at pp. 482-485.) We held
that “Banks and Clark did not change the law,” and therefore “[a] special circumstance
finding renders [a petitioner] ineligible for relief under section 1170.95 as a matter of
law.” (Id. at pp. 480-481.)
We readily acknowledge that there is a split of authority on this point. (Jones,
supra, 56 Cal.App.5th at pp. 482-483.) The issue is presently before the Supreme Court
in People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review granted March 10,
2021, S266606. Unless and until the Supreme Court instructs us otherwise, however, we
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adhere to our opinion in Jones. Even though review in Jones has been granted, it remains
persuasive (Cal. Rules of Court, rule 8.1115(e)), especially in this court.
As we suggested in Jones (Jones, supra, 56 Cal.App.5th at pp. 478-479, and cases
cited), a person in petitioner’s position is not wholly without a remedy. He or she can
challenge prior special circumstance findings in a habeas proceeding. (See, e.g., In re
Scoggins (2020) 9 Cal.5th 667, 676-683.) We express no opinion as to whether, in
petitioner’s case, there might be some procedural bar to such a proceeding at this point.
III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
McKINSTER J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a robbery-murder special circumstance finding renders a petitioner ineligible for resentencing under Penal Code section 1170.95 as a matter of law, regardless of subsequent judicial interpretations of major participant and reckless indifference standards.
Issues
Whether a robbery-murder special circumstance finding precludes eligibility for resentencing under Penal Code section 1170.95.
Whether the decisions in People v. Banks and People v. Clark necessitate re-litigation of special circumstance findings in resentencing petitions.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“[a] special circumstance finding renders [a petitioner] ineligible for relief under section 1170.95 as a matter of law.”