63 Cal.4th 522 (Clark), the California Supreme Court clarified what it means to be a
“major participant” in an underlying felony and what it means for a defendant to have
acted with “reckless indifference to human life” for purposes of the murder special
circumstance under Penal Code1 section 190.2, subdivision (d), applicable to someone
who is not the actual killer. Petitioner filed this petition for writ of habeas corpus in the
California Supreme Court and argued the jury’s robbery-murder special circumstance
finding must be vacated because, considering Banks and Clark, the evidence does not
establish he was a major participant in the robbery or that he acted with reckless
indifference to human life. The Supreme Court directed the Secretary of the Department
of Corrections and Rehabilitation to show cause before this court why petitioner is not
entitled to relief. (In re Harper on Habeas Corpus, Oct. 28, 2020, S259563.)
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
Having received and considered petitioner’s petition, informal reply, and traverse,
and the Attorney General’s informal response and return to the petition, we deny the
petition. The evidence in the record of conviction shows petitioner was a major
participant in the robbery, and he acted with reckless indifference to human life, so the
jury’s special circumstance finding must stand.
I.
FACTS2
“[Petitioner] and his codefendant Anthony Brown . . . lived at a trailer park in
Rubidoux. Brown was 28. [Petitioner] was 16 but told everyone at the trailer park he
was 19. Brown was the dominant one in the relationship. Sometimes he beat
[petitioner], leaving him black and blue. At the time of the crime, he was trying to get
legal custody of [petitioner].
“Melissa Rogers was also a resident of the trailer park.
“Victim Jamaloddin Doroudi owned and operated the 99 Cent Store in Rubidoux.
He was known to keep large amounts of cash in his wallet. [Petitioner] and Brown were
2 On the court’s own motion, we take judicial notice of the records and nonpublished opinions in petitioner’s prior appeals: People v. Brown et al. (Jan. 7, 2004, E032616) [nonpub. opn.], People v. Harper (June 14, 2016, E063475) [nonpub. opn.], and People v. Harper (Mar. 19, 2020, E073615) [nonpub. opn.]. (Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.1115(b).) We quote the statement of facts from People v. Harper, supra, E063475, this court’s 2016 opinion in a postjudgment appeal from the initial denial of petitioner’s request to be resentenced pursuant to Miller v. Alabama (2012) 567 U.S. 460. That statement of facts was itself a summary of the more detailed and lengthy statement of facts from People v. Brown et al., supra, E032616, this court’s opinion in the direct appeal from petitioner’s conviction and original sentence.
3
regular customers of his store. A week or two before the crimes, [petitioner] shoplifted
multiple pairs of handcuffs from the store.
“On November 28, 2001, Brown drove Rogers and [petitioner] to the 99 Cent
Store. Between 9:30 and 10:00 p.m., they pulled up and parked in front of the store.
Brown got out and knocked on the door. The victim opened a security gate and let him
in. [Petitioner] and Rogers went in behind Brown.
“[Petitioner] was carrying Brown’s sawed-off 12-gauge shotgun. He handed it to
Brown. Brown and Rogers then took the victim into a bathroom, where Brown
handcuffed him to the toilet. They asked him where the safe was, but he would not tell
them.
“Meanwhile, [petitioner] stayed in the front section of the store. He took all of the
money from the cash register. Rogers came out and asked him where she could find
some knives. He pointed to where they were in the store. Rogers got a knife, then went
back.
“Rogers used the knife to cut the victim’s throat. However, the wound was not
deep enough to cause death. She turned to Brown and said, ‘The son of a bitch won’t
die.’ Brown then shot him in the chest with the shotgun. This wound was fatal.
“Brown and Rogers took the victim’s wallet, which turned out to contain $20,000.
When they got back to the trailer park, [petitioner] joked that they could do their laundry
because he had taken all the quarters from the cash register. That night and over the
following days, [petitioner], Brown, and Rogers were seen flaunting hundreds and
4
thousands of dollars; they gave money to friends and relatives and went on a spending
spree.
“[Petitioner] and Brown fled to Reno. A little over a week after the shooting, they
were arrested there. They were in possession of a DVD player, a VCR, and a stereo
taken from the 99 Cent Store.
“[Petitioner] gave a statement to the police. He admitted knowing that Brown and
Rogers were going to commit a robbery. He claimed that he went along only because he
did not want to stay at the trailer park with Brown’s brother Chris, not because he
intended to participate.
“[Petitioner] also admitted seeing Brown and Rogers ‘checking . . . out’ a shotgun
before going to commit the robbery. However, when they left the trailer park, he did not
see anyone carrying it, so he thought they had left it behind. Rogers borrowed a pair of
handcuffs from defendant.
“Brown and Rogers went in the store first; pursuant to Brown’s instructions,
[petitioner] went in when he saw the lights go off. Brown came out from a back room
and said, ‘I don’t know about this.’ [Petitioner] replied, ‘[W]hatever you want to do is
fine with me . . . just as long as I’m not involved.’ [Petitioner] admitted acting as a
lookout. He also admitted taking DVD players and a stereo. He admitted opening the
cash register, but he claimed it was already empty.
“[Petitioner] further admitted that, when Rogers asked him where the knives were,
he thought, ‘[A]re they gonna stab him . . . ?’ Brown gave him a VCR and told him to
5
wait in the car. About five minutes later, Brown and Rogers came out and all three left.
Rogers gave [petitioner] $6,000.
“[Petitioner] denied knowing that the victim was dead until days later. However,
he had told others that he heard the shotgun go off while he was at the front door.”
(People v. Harper, supra, E063475.)
II.
PROCEDURAL BACKGROUND3
In 2002, a jury convicted petitioner of one count of first degree murder (§ 187,
subd. (a)) and found true a robbery-murder special circumstance allegation (§ 190.2,
subd. (a)(17)(A)). The trial court sentenced him to life without the possibility of parole
(LWOP).
On direct appeal, petitioner argued: (1) insufficient evidence supported the jury’s
findings that he acted with reckless indifference to human life to support the special
circumstance finding; (2) the trial court abused its discretion when it failed to exercise its
3 Separately, in 2020, petitioner filed a petition for resentencing in the trial court pursuant to section 1170.95. He argued that he could no longer be convicted of felony murder under amendments made to sections 188 and 189 (Stats. 2018, ch. 1015, §§ 2, 3) by Senate Bill No. 1437 (2017-2018 Reg. Sess.). That bill limited the offense of murder under the felony-murder rule to defendants who: (1) are the actual killer; (2) are not the actual killer but who share the killer’s intent to kill and aid and abet in the killing; or (3) are a major participant in a felony and who act with reckless indifference to human life. It further eliminated the offense of murder under the natural and probable consequences doctrine for defendants who are not the actual killer. (People v. Gentile (2020) 10 Cal.5th 830, 846, 848.) In a separate opinion, we affirmed the denial of the petition for resentencing. (People v. Harper (Jan. 14, 2022, E074670) [nonpub. opn.], petn. for review pending, petn. filed Feb. 15, 2022, S273175.) On our own motion, we take judicial notice of the record in that proceeding. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
6
discretion to sentence him to 25 years to life instead of LWOP; and (3) his sentence of
LWOP was cruel and/or unusual punishment under the federal and state constitutions.
(People v. Brown et al., supra, E032616.)
This court concluded the evidence did support the jury’s finding that petitioner
acted with reckless indifference to human life. (People v. Brown et al., supra, E032616.)
We stated:
“Here, [petitioner] knew in advance that Brown and Rogers were going to commit
a robbery. He admitted seeing them with the shotgun while they were all still at the
trailer, and he admittedly knew they were ‘checking it out . . . before going to do the 99
Cent Store.’ He also claimed, of course, that he did not see either of them bring the
shotgun along on the robbery; the jury, however, did not have to believe this.
“[Petitioner] admittedly acted as a lookout and took loot from the store. When
Brown came out and asked if he was all right, he replied, ‘[Y]eah[,] cool, just . . . do
whatever you need to do so we can get out of here and hurry up.’ Next, Rogers came out
and said, ‘[W]e need some knives.’ [Petitioner] admitted thinking, ‘[A]re they gonna
stab him . . . ?’ Nevertheless, he told her where to find knives. Finally, he admitted to
his mother that he brought the shotgun into the store and handed it to Brown.
“Immediately after the murder, [petitioner] told Alysia that he heard the gun go
off. He was there when Brown bragged that he ‘blew [the victim’s] ass away.’
Meanwhile, Alysia testified, [petitioner] was ‘making smart aleck comments’ and ‘joking
like [he] didn’t care . . . .’
7
“In sum, . . . there was evidence that [petitioner] knew that his accomplices
intended to commit a robbery while armed with a deadly weapon. He personally carried
away some of the loot. Even more important, while the robbery was in progress, he
furnished them with the shotgun and also with knives, despite admittedly thinking that
the knives might be used to stab the victim. It was fairly inferable that he knew there was
a grave risk that death could result. He heard the gunshot, yet he made no attempt to help
the victim; instead, he carried a VCR out to the car, then fled with his cohorts, leaving the
victim to die alone, next to a toilet; under Hodgson, this alone would be sufficient.
Afterwards, he joked about the robbery. We conclude that this constituted substantial
evidence that [petitioner] acted with reckless indifference to human life.” (People v.
Brown et al., supra, E032616.)
Moreover, in the context of addressing petitioner’s claim that his sentence of
LWOP violated the Sixth Amendment’s prohibition on cruel and unusual punishment,
this court concluded the record contained substantial evidence he was a major participant
in the robbery. (People v. Brown et al., supra, E032616.) We stated:
“Separately and alternatively, we also reject [petitioner’s claim] on the authority of
Tison v. Arizona (1987) 481 U.S. 137, 154 [107 S.Ct. 1676, 95 L.Ed.2d 127]. Tison
featured two young defendants (aged 19 and 20) with no prior records. (Id. at pp. 142-
143.) They were found guilty of capital murder, under the felony-murder rule, as
accomplices to a robbery and/or kidnapping. (Id. at pp. 141-142.) Neither of them was
the actual killer; neither of them acted with intent to kill. (Id. at pp. 138, 143.) The
United States Supreme Court held that the death penalty was not a disproportionate
8
penalty under these circumstances, provided the defendants were major participants in the
underlying felony and acted with reckless indifference to human life. (Id. at p. 158.)
“As we discussed . . . , ante, substantial evidence supports the jury’s finding that
[petitioner] was a major participant in the underlying robbery and that he acted with
reckless indifference to human life.” (People v. Brown et al., supra, E032616.)
The Supreme Court denied petitioner’s petition for review. (People v. Brown et al.,
review denied Mar. 30, 2004, S122525.)
In 2015, the trial court denied petitioner’s request to be resentenced to 25 years to
life pursuant to Miller v. Alabama, supra, 567 U.S. 460. This court affirmed that order,
and the California Supreme Court denied review. (People v. Harper, supra, E063475,
review denied Sept. 21, 2016, S236073.) However, a federal district court issued a writ
of habeas corpus directing the trial court to resentence petitioner pursuant to Miller.
(Harper v. Davey (C.D. Cal., Nov. 28, 2017, No. ED CV-16-02250-JFW (KES)) 2017
U.S. Dist. Lexis 196344.) Thereafter, the trial court resentenced him to 25 years to life.
In 2017, the trial court denied a petition for writ of habeas corpus in which
petitioner challenged the jury’s special circumstance finding pursuant to Banks, supra,
61 Cal.4th 788. Petitioner also filed a petition for writ of habeas corpus on the same
grounds in this court, which was summarily denied. (In re Harper on Habeas Corpus,
Dec. 18, 2018, E071438.)
The instant proceeding followed.
9
III.
DISCUSSION
Petitioner argues the jury’s special circumstance finding is no longer viable after
the decisions in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522 because
the evidence does not establish he was a major participant in the robbery and that he
acted with reckless disregard for human life. We disagree and deny his petition.
“Murder is the unlawful killing of a human being, or a fetus, with malice
aforethought.” (§ 187, subd. (a).) Murder committed during the perpetration of a
robbery (felony murder) is first degree murder. (§ 189, subd. (a).) An accomplice
convicted of first degree murder who was “not the actual killer” may be sentenced to
death or life without the possibility of parole if one or more special circumstance is found
true. (§ 190.2, subds. (c), (d).) As relevant here, the accomplice must be “a major
participant” in the robbery who acted “with reckless indifference to human life.”
(§ 190.2, subds. (a)(17)(A), (d).) The law “thus imposes both a special actus reus
requirement, major participation in the crime, and a specific mens rea requirement,
reckless indifference to human life.” (Banks, supra, 61 Cal.4th at p. 798.) “‘These
requirements significantly overlap . . . for the greater the defendant’s participation in the
felony murder, the more likely that he acted with reckless indifference to human life.’”
(Clark, supra, 63 Cal.4th at p. 615.)
As noted, in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522 our
Supreme Court “clarified the meaning of the special circumstances statute.” (In re
Scoggins (2020) 9 Cal.5th 667, 671.) In Banks, the court held a “major participant” in a
10
robbery is someone whose “personal involvement” is “substantial” and “greater than the
actions of an ordinary aider and abettor . . . .” (Banks, supra, 61 Cal.4th at p. 802.)
However, he or she “need not be the ringleader.” (People v. Williams (2015) 61 Cal.4th
1244, 1281, cited with approval in Clark, at pp. 614, 619)
Determining whether a defendant was a major participant requires consideration of
the totality of the circumstances. (Banks, supra, 61 Cal.4th at p. 802.) Banks identified
five nonexclusive4 factors for evaluating the extent of a defendant’s participation: “[(1)]
What role did the defendant have in planning the criminal enterprise that led to one or
more deaths? [(2)] What role did the defendant have in supplying or using lethal
weapons? [(3)] What awareness did the defendant have of particular dangers posed by
the nature of the crime, weapons used, or past experience or conduct of the other
participants? [(4)] 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? [and (5)] What did the defendant do after lethal force was
used?” (Id. at p. 803, fn. omitted.) None of the factors the court expressly articulated is
necessary or necessarily sufficient, and all must be weighed in determining the ultimate
question of “whether the defendant’s participation ‘in criminal activities known to carry a
grave risk of death’ [citation] was sufficiently significant to be considered ‘major.’” (Id.
at p. 803.)
4The court stated the five factors were “[a]mong those factors” that bear on “determining whether a defendant’s culpability is sufficient” to find true a special circumstance finding. (Banks, supra, 61 Cal.4th at p. 803, italics added.)
11
In Clark, the court noted reckless indifference to human life “may be ‘implicit in
knowingly engaging in criminal activities known to carry a grave risk of death.’” (Clark,
supra, 63 Cal.4th at p. 616.) “‘[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.’” (In re
Scoggins, supra, 9 Cal.5th at p. 677, quoting Banks, supra, 61 Cal.4th at p. 801 and citing
Clark, at p. 617.) However, the court cautioned that merely participating in an armed
robbery is not enough to show reckless indifference to human life. (Clark, at pp. 615-
616, 623; accord, In re Scoggins, at p. 677; Banks, at pp. 808, 810.)
Courts must view the totality of the circumstances to determine whether the
defendant acted with reckless indifference to human life. (In re Scoggins, supra,
9 Cal.5th at p. 677.) Clark identified five relevant, but nonexclusive,5 factors for
evaluating this subjective requirement: (1) the “defendant’s awareness that a gun [or
other deadly weapon] will be used,” whether the defendant personally used a lethal
weapon, and the number of lethal weapons used; (2) the defendant’s “[p]roximity to the
murder and the events leading up to it” and opportunity to either restrain the crime or aid
the victim; (3) whether the murder took placed “at the end of a prolonged period of
restraint of the victim[] by the defendant”; (4) the “defendant’s knowledge of . . . a
cohort’s likelihood of killing”; and (5) whether the defendant made an “effort[] to
5 As in Banks, the court in Clark stated the factors it listed were merely “some of the case-specific factors” courts had identified for determining whether a defendant acted with reckless indifference for human life. (Clark, supra, 63 Cal.4th at p. 618, italics added.)
12
minimize the risks of violence in the commission of a felony . . . .” (Clark, supra,
63 Cal.4th at pp. 618-622.) Again, no single factor is necessary, nor is any one
necessarily sufficient. (Id. at p. 618.)
We must apply the deferential substantial evidence standard of review to assess
petitioner’s claim that the jury’s special circumstance finding is not supported by the
record. (Banks, supra, 61 Cal.4th at p. 804; Clark, supra, 63 Cal.4th at p. 610.) We ask
“whether, when evidence that is reasonable, credible, and of solid value is viewed ‘in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the [special circumstance] beyond a reasonable doubt.’” (Clark, at
p. 610.) “We presume, in support of the judgment, the existence of every fact the trier of
fact could reasonably deduce from the evidence, whether direct or circumstantial.”
(Ibid.)
A. Major Participant.
Applying the factors identified by Banks, and viewing the totality of the
circumstances, we conclude petitioner was a major participant in the robbery.
As for the first factor, “What role did the defendant have in planning the criminal
enterprise that led to one or more deaths,” (Banks, supra, 61 Cal.4th at p. 803) petitioner
contends he was not involved in the actual planning of the robbery and made a last-
minute decision to join Brown and Rogers. True, as this court concluded in petitioner’s
direct appeal, “evidently [he] did not plan the robbery, [although] he was present when it
was being planned.” (People v. Brown et al., supra, E032616.) However, although
petitioner claimed he only went along because he did not want to stay alone at the trailer
13
park (ibid.), a reasonable trier of fact could conclude from other evidence—for example,
from his theft of the handcuffs from the same store one or two weeks prior—he intended
to participate from the get-go. In any event, the first factor does not weigh heavily
against petitioner.
With respect to the second factor, “What role did the defendant have in supplying
or using lethal weapons,” (Banks, supra, 61 Cal.4th at p. 803) petitioner argues there is
no evidence he “procured” the shotgun or the knife for the purpose of committing the
robbery. True, the evidence shows Brown already owned the shotgun before the robbery.
(People v. Brown et al., supra, E032616.) But, petitioner was not a mere bystander when
it came to the deadly weapons used during the robbery. Although he told the police he
did not see anyone carrying the shotgun when they left the trailer park, and he believed it
had been left behind, he told his mother he was the one who brought the shotgun into the
store and handed it to Brown. (Ibid.) And, when Rogers came out and asked where she
could find some knives, petitioner directed her to the correct store aisle. (Ibid.) As this
court concluded in petitioner’s direct appeal, he furnished his confederates with their
weapons. (Ibid.) We therefore agree with the Attorney General that petitioner “played a
significant role in arming Brown and Rogers.”
For the third factor, “What awareness did the defendant have of particular dangers
posed by the nature of the crime, weapons used, or past experience or conduct of the
other participants,” (Banks, supra, 61 Cal.4th at p. 803) petitioner argues there is no
evidence he “was aware of any particular heightened risk of death relative to an ordinary
armed robbery.” Relying on testimony admitted during the hearing on his initial
14
unsuccessful request to be resentenced pursuant to Miller, petitioner asserts he had no
reason to believe the robbery would become deadly because Brown had used the shotgun
during four or five prior robberies but, as far as petitioner knew, no one had been injured.
But, petitioner had personal experience with Brown’s violent tendencies, having been the
victim of Brown’s beatings. (People v. Brown et al., supra, E032616.) Whatever
petitioner may or may not have believed about the plan for the robbery at the outset (to
handcuff the manager to the toilet but not hurt him), he was clearly aware of the risk of
death once the robbery was underway. He heard Brown say, “‘We can make this real
simple,’” then heard pounding and yelling coming from the bathroom, which he
understood to mean the manager was struggling. And, when Rogers came out and asked
where she could find some knives, petitioner thought to himself, “‘[A]re they gonna stab
him . . . ?”’ Yet, he still told her where to find the knives. (Ibid.)
More importantly, the record contains strong evidence that petitioner knew or
reasonably should have known from the start that the victim was likely to be killed during
the robbery. The plan was not to rob a stranger or a victim who would probably not
report the crime.6 He and Brown were regular customers of the store, and they knew the
manager well enough to know he regularly carried large amounts of cash in his wallet.
The victim knew petitioner and his confederates well enough that, after business hours,
he opened the security gate and let them inside. (People v. Brown et al., supra,
6 For instance, a defendant might steal from a drug dealer, an undocumented immigrant, or even a family member and reasonably assume the victim will be reluctant to report the crime to the police.
15
E032616.) As we stated in our opinion from the denial of defendant’s petition for
resentencing, “When they committed the robbery, they made no attempt to disguise
themselves. And surely defendant did not want to get caught.” (People v. Harper, supra,
E063475.) “Certainly defendant did appreciate the risk of being identified. When
interviewed by a parole officer after his conviction, he said he felt ‘scared’ during the
robbery because ‘[t]hey were not wearing masks.’ From the fact that Brown had a
shotgun—as well as from defendant’s knowledge of Brown’s violent tendencies—
defendant did not need great insight or experience to conclude that the victim would be
killed.” (Ibid.)
Next, for the fourth factor, “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,” (Banks, supra, 61 Cal.4th at p. 803) petitioner
asserts he was not in or near the bathroom but was at the front of the store acting as a
lookout, and he was not positioned to either prevent or facilitate in the manager’s death.
Although he was not in or immediately outside the bathroom, petitioner was not as far
away as he suggests. In addition to being the lookout, petitioner went inside the store and
opened the cash register. He was close enough to hear Brown talking to the manager,
pounding and yelling coming from the bathroom, and the shotgun being fired. (People v.
Brown et al., supra, E032616.) But, as this court previously concluded, despite being at
the scene of the robbery and close enough to hear the gunshot, “he made no attempt to
help the victim.” (Ibid.) And, by handing the shotgun to Brown, and by directing Rogers
16
to where she could find knives (after thinking to himself they might be used to stab the
manager), petitioner’s actions played a role in the murder.
About the last factor, “What did the defendant do after lethal force was used,”
(Banks, supra, 61 Cal.4th at p. 803) petitioner argues he merely got into the car and fled
with Rogers and Brown. But, as the Attorney General argues, petitioner “did a bit more.”
After hearing the gunshot, petitioner did not go back inside and try to help the manager.
“[I]nstead, he carried a VCR out to the car . . . .” (People v. Brown et al., supra,
E032616.) Back at the trailer park, he joined Brown and Rogers in joking about the
robbery and “joked that they had money to do their laundry because he had taken all the
quarters out of the cash register.” (Ibid.) He was seen waving “‘wads of money’” the
night of the robbery. And, a little more than a week later, he fled to Reno with Brown.
(Ibid.)
Defendant argues he “is less culpable than the defendants” in In re Bennett (2018)
26 Cal.App.5th 1002 and In re Ramirez (2019) 32 Cal.App.5th 384, “who were more
involved in their respective underlying felonies” yet were found to have not been major
participants under Banks, supra, 61 Cal.4th 788. We find those decisions to be
distinguishable.
Although the defendant in Bennett, supra, 26 Cal.App.5th 1002 helped plan the
armed robbery of a drug dealer, he knew his cohorts had firearms, and he did nothing to
mitigate the possibility of violence and fled the scene once a cohort shot the dealer, the
appellate court concluded the defendant was not a major participant because he had no
knowledge of his cohort’s violent nature and there was no evidence the defendant
17
planned to murder the dealer or that he anticipated use of deadly violence. (Id. at pp.
1020-1021.) In contrast, petitioner knew of Brown’s violent nature. Unlike in Bennett,
where the drug dealer was murdered when the defendant’s “plan fell apart when [the
dealer] started running instead of complying,” (id. at p. 1020) petitioner either knew the
plan from the beginning was to kill the manager or, at a minimum, he knew the plan to
merely subdue the manager had already fallen apart when he heard yelling and pounding
coming from the bathroom. And, he admitted to suspecting Rogers and Brown were
going to stab the manager when Rogers walked up and asked where she could find
knives. In other words, petitioner already knew or reasonably should have known Rogers
and Brown had decided to kill the manager before they slashed his throat and shot him
with the shotgun. Yet, petitioner did nothing to prevent the murder or flee the scene
before it happened. Instead, he stayed at his post as the lookout and, after hearing the
gunshot, helped load stolen merchandise into the car and fled with Rogers and Brown.
(People v. Brown et al., supra, E032616.) Petitioner was more culpable than the
defendant in Bennett, not the other way around.
In In re Ramirez, supra, 32 Cal.App.5th 384, the defendant supplied the guns that
were ultimately used in an attempted robbery and murder, but there was no evidence he
planned a specific robbery or that he planned a murder. (Id. at p. 404.) Moreover, the
appellate court concluded that, although the defendant was close enough to hear the victim
being shot, he was not at the immediate location of the shooting and was therefore not
“close enough to exercise a restraining effect on the crime or his colleagues.” (Id. at
p. 405.) As noted, ante, petitioner was not inside or immediately outside the bathroom
18
where the manager was shot. But, he was close enough to hear Brown talking to the
manager and yelling and pounding coming from the bathroom, which he took to mean the
manager was resisting. And, unlike the defendant in Ramirez, petitioner was positioned to
attempt to exercise a restraining effect—at least on Rogers. When she asked where to find
the knives, petitioner thought to himself she or Brown might use one to stab the manager.
But, rather than say he did not know where the knives could be found, he directed Rogers
to the exact aisle in the store where she found them. (People v. Brown et al., supra,
E032616.)
For the foregoing reasons, we conclude the record contains substantial evidence to
support the conclusion that petitioner was a major participant in the robbery.
B. Reckless Indifference to Human Life.
Similarly, applying the factors from Clark, supra, 63 Cal.4th 522, and considering
the totality of the circumstances, we conclude the record demonstrates petitioner acted
with reckless disregard for human life.
Addressing the first factor, the “defendant’s awareness that a gun [or other deadly
weapon] will be used,” whether the defendant personally used a lethal weapon, and the
number of lethal weapons used (Clark, supra, 63 Cal.4th at pp. 618-619), petitioner
acknowledges he knew Brown would “brandish” a shotgun during the robbery, as he had
in four or five prior robberies, but petitioner contends he had no idea Brown would fire it
this time. And, although he acknowledges he briefly handled the shotgun when he gave
it to Brown, petitioner correctly states he did not use a weapon. True, petitioner did not
personally use a weapon, but his statements during the robbery clearly show he was
19
indifferent to whether Brown and Rogers used deadly violence. Before the shooting,
Brown came out to where petitioner was and said, “‘I don’t know about this.’” (People v.
Brown et al., supra, E032616.) Petitioner replied, “‘[W]hatever you want to do is fine
with me . . . just as long as I’m not involved.’” (Ibid., italics added.) Rogers then walked
out and asked where she could find knives. (Ibid.) To repeat, despite thinking Brown
and Rogers might use a knife to stab the manager, petitioner told Rogers exactly where
she could find one. Petitioner heard yelling and pounding, which he understood to mean
the manager was resisting. And, when Brown came out again and asked petitioner if he
was “‘cool,’” petitioner replied, “‘[Y]eah[,] cool, just . . . do whatever you need to do so
we can get out of here and hurry up.’” (Ibid., italics added.)
Regarding the second factor, the defendant’s “[p]roximity to the murder and the
events leading up to it” and the opportunity to either restrain the crime or aid the victim
(Clark, supra, 63 Cal.4th at pp. 619-620), petitioner contends he was not present in the
bathroom, he did not see what was happening, and he had no chance to restrain the crime
or provide aid to the manager. As we have already concluded, ante, the evidence does
not show he was as physically removed from the robbery as he now suggests. Although
he was not inside the bathroom, petitioner heard Brown tell the manager, “‘We can make
this real simple,’” he heard pounding and yelling coming from the bathroom, and (quite
reasonably) he concluded the manager was resisting Roger’s and Brown’s attempts to
handcuff him. (People v. Brown et al., supra, E032616.) When Rogers came out and
asked about knives, petitioner (again, reasonably) surmised she and Brown had given up
on trying to restrain the manager and had decided to stab him. At that moment, petitioner
20
had the opportunity to exercise some restraining influence on the events by telling Rogers
he did not know where the knives were. Instead, he told her where to find them. And,
after hearing the gunshot, petitioner did nothing to aid the manager. (Ibid.)
The parties agree the third factor, whether the murder took place “at the end of a
prolonged period of restraint of the victim[] by defendant” (Clark, supra, 63 Cal.4th at
pp. 620-621), does not weigh against petitioner because he had little or no direct
involvement with the store manager. We too agree.
As for the fourth factor, the “defendant’s knowledge of . . . a cohort’s likelihood of
killing” (Clark, supra, 63 Cal.4th at p. 621), petitioner again contends there is no
evidence he knew Brown would act violently during the robbery.7 What we have already
said in the context of the Banks analysis applies here. Petitioner knew about Brown’s
violent tendencies because he was the victim of Brown’s beatings. (People v. Brown et
al., supra, E032616.) Even if petitioner believed the plan was only to handcuff the
manager to the toilet but not hurt him, he knew of the risk of death once the robbery was
underway. He could hear Brown say, “‘We can make this real simple,”’ and he heard
pounding and yelling coming from the bathroom, which he took to mean the manager
7 Citing the probation officer’s sentencing report, petitioner also argues he had no knowledge that Rogers would use violence either. The report states that, when he was interviewed in juvenile hall after his arrest, petitioner said Rogers “‘was never a violent person in front of me’” so he “thought nothing” of her asking for a knife. But, to repeat, in his videotaped statement to the police, petitioner admitted he thought to himself, “‘[A]re they gonna stab him . . . ?’” (People v. Brown et al., supra, E032616.) In other words, he may not have known before the robbery that Rogers could be violent but, during the robbery, he reasonably surmised she might.
21
was struggling. And, when Rogers asked about knives, petitioner thought, “‘[A]re they
gonna stab him . . . ?’” (Ibid.)
Finally, for the fifth factor, whether the defendant made an “effort[] to minimize
the risks of violence in the commission of a felony” (Clark, supra, 63 Cal.4th at pp. 621-
622), petitioner asserts he “was not in a position to minimize the risk” because he did not
plan the robbery, he only briefly saw the manager, his role was limited to being the
lookout, and he did not observe what happened in the bathroom. We agree the evidence
only shows petitioner was present during the planning of the robbery, and he had little or
no direct contact with the store manager. (People v. Brown et al., supra, E032616.) But,
the evidence amply demonstrates petitioner was more than a mere lookout. He entered
the store with Rogers and Brown and handed the shotgun to Brown. He opened the cash
register and helped take stolen merchandise from the store to the car. He told Rogers
where she could find the knife that was used to slash the manager’s throat. And, although
he may not have had the opportunity to minimize the risk of violence during the planning
stage, he did nothing to minimize the risk of violence when it became clear the original
plan had unraveled. (Ibid.)
In sum, we conclude the record contains substantial evidence that petitioner acted
with reckless disregard for human life.
C. Whether Petitioner’s Youth Should Be Considered Here as Decreasing His
Culpability.
Finally, petitioner argues his youth at the time of the crime decreases his
culpability. In his brief, the Attorney General contended petitioner’s youth is irrelevant
22
to the analyses under Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522.
However, during oral argument, the Attorney General conceded youth may be one of
several factors to consider in an appropriate case, but he argued it does not change the
result in this case. Assuming but not deciding that youth is an appropriate factor, we
agree with the Attorney General that the result is the same.
The Legislature has already made youth a factor that must be considered when
determining whether a 16- or 17-year-old found guilty of special circumstance murder
should be sentenced to LWOP or 25 years to life. (§ 190.5, subd. (b).) Youth must also
be considered when, after having served 25 years, a minor defendant becomes eligible for
parole at a youth offender parole hearing. (§ 3051, subd. (b)(3).) At that time, the Board
of Parole Hearings is required to “give great weight to the diminished culpability of
juveniles as compared to adults, the hallmark features of youth, and any subsequent
growth and increased maturity of the prisoner in accordance with relevant case law.”
61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522 did not address youth,8 and nothing in
those decisions indicates youth must be incorporated as a factor into the analysis of
whether a special circumstance applies in the first place. However, as noted ante, those
courts stated the factors they articulated were not exclusive or necessarily determinative.
(See Banks, at p. 803; Clark, at p. 618.)
8 Although youth would appear to be an obvious consideration when determining whether a defendant acted with reckless indifference to human life, the defendant in Clark was a grown man at the time of the murder, so the Supreme Court had no occasion to decide whether youth was a factor. (See Clark, supra, 63 Cal.4th at p. 545.)
23
Recently, three appellate courts have concluded youth is an appropriate
consideration: People v. Harris (2021) 60 Cal.App.5th 939 (Harris), review granted
Apr. 28, 2021, S267802, In re Moore (2021) 68 Cal.App.5th 434 (Moore), and People v.
Ramirez (2021) 71 Cal.App.5th 970 (Ramirez).
The defendant in Harris was 17 years old when he was arrested and appealed from
the denial of his petition for resentencing under section 1170.95. (Harris, supra,
60 Cal.App.5th at pp. 960-961.) In his original trial, the jury found true a special
circumstance allegation that the murder was committed during the commission of arson,
and the trial court sentenced him to 25 years to life. He argued he could no longer be
convicted of felony murder under the amendments to sections 188 and 189 made by
Senate Bill No. 1437 because he was not a major participant in the underlying arson and
he did not act with reckless disregard for human life, and he argued the trial court erred
by denying his petition without conducting an evidentiary hearing. (Harris, at pp. 944-
945.) In contrast to this court’s decision in People v. Jones (2020) 56 Cal.App.5th 474,
review granted Jan. 27, 2021, S265854, the appellate court in Harris concluded the
defendant’s special circumstance finding did not preclude relief under section 1170.95 as
24
a matter of law and he could challenge the continued validity of that finding at a hearing
on his petition for resentencing.9 (Harris, at pp. 954-958.)
In the context of analyzing the Banks, supra, 61 Cal.4th 788 factors—some of
which the court indicated weighed in favor of concluding the defendant was a major
participant—the Harris court concluded the defendant’s youth was a proper
consideration. “[G]iven 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.)” (Harris,
supra, 60 Cal.App.5th at p. 960.) The court reversed the denial of the defendant’s
petition for resentencing and remanded for the trial court to issue an order to show cause
and conduct a hearing and engage in appropriate factfinding. (Id. at pp. 960-961.)
Like petitioner, the defendant in Moore was 16 years old at the time of the offense,
challenged his robbery-homicide special circumstance finding in a petition for writ of
habeas corpus, and argued he was not a major participant who acted with reckless
9 The Supreme Court granted review in People v. Harris (Apr. 28, 2021, S267802) ___ Cal.5th ___ [2021 Cal. Lexis 2890], and that case is being held pending a resolution of People v. Strong, review granted Mar. 10, 2021, S266606, in which the Supreme Court will decide: Does a felony-murder special circumstance finding (Pen. Code, § 190.2, subd. (a)(17)) made before Banks and Clark preclude a defendant from making a prima facie showing of eligibility for relief under Penal Code section 1170.95? (See People v. Strong, S266606.)
25
disregard for human life. (Moore, supra, 68 Cal.App.5th at p. 439.) In the context of
analyzing whether the evidence established the defendant acted with reckless disregard
for human life, the appellate court stated it would “go one step further” than Harris,
supra, 60 Cal.App.5th 939 and held “a defendant’s youth is a relevant factor in
determining whether the defendant acted with reckless indifference to human life.”10
(Moore, at p. 454.)
The court purported to find that, viewing the totality of the circumstances, the
defendant did not act with reckless disregard for human life. (Moore, supra,
68 Cal.App.5th at pp. 439, 451, 455.) However, with little or no analysis, the court seems
to have suggested the defendant’s youth, by itself, was the decisive factor in determining
whether the defendant acted with reckless disregard for human life. “In this case, [the
defendant], as a 16-year-old, lacked ‘“the experience, perspective, and judgment”’ to
adequately appreciate the risk of death posed by his criminal activities. [Citations.] To
the extent the Clark factors discussed ante support a finding of reckless indifference for
an adult—an issue we do not decide today—those factors undoubtedly preclude such a
finding when viewed from the lens of [defendant’s] youth.” (Moore, at p. 454, italics
10 As here, the defendant in Moore filed his petition for writ of habeas corpus directly in the California Supreme Court. The Supreme Court issued an order to show cause, returnable for the Court of Appeal to consider “why petitioner is not entitled to relief based on his claim that there was insufficient evidence to support the robbery- murder special circumstance finding and whether petitioner’s youth at the time of the offense should be one of the factors considered under People v. Clark (2016) 63 Cal.4th 522, 609-623 . . . and People v. Banks (2015) 61 Cal.4th 788. . . .” (In re Moore (Aug. 16, 2020, S259591) ___ Cal.5th ___ [2020 Cal. Lexis 8666], italics added.)
26
added.) Therefore, the court granted the petition for writ of habeas corpus, vacated the
special circumstance finding, and remanded the matter for resentencing. (Id. at p. 455.)
More recently, the defendant in Ramirez, who was 15 years old11 at the time of the
offense, petitioned the trial court to be resentenced pursuant to section 1170.95 and
argued his special circumstance finding was not supported by the evidence. (Ramirez,
supra, 71 Cal.App.5th at pp. 982-983.) On appeal from the denial of his petition, the
Court of Appeal cited Harris and Moore for the proposition that youth is an appropriate
factor to consider when determining whether a minor defendant who was not the actual
killer acted with reckless indifference to human life. (Ramirez, at p. 987.)
Applying the factors expressly articulated in Clark, the Court of Appeal held there
was no substantial evidence in the record of conviction to demonstrate the defendant
acted with reckless indifference for human life when he aided and abetted the actual
shooter during a carjacking.12 (Ramirez, supra, 71 Cal.App.5th at pp. 987-990.) In
addition, the court noted, “Ramirez’s youth at the time of the shooting greatly diminishes
any inference he acted with reckless disregard for human life by participating in the
attempted carjacking knowing [the actual shooter] was armed. As argued by Ramirez,
11 The defendant in Ramirez also argued that, because he was 15 years old at the time of the offense, under Proposition 57 and Senate Bill No. 1391 (2017-2018 Reg. Sess.), his case had to be remanded to the juvenile court for an appropriate disposition. (Ramirez, supra, 71 Cal.App.5th at pp. 982-983.)
12 The opinion did not address the threshold question of whether a defendant may challenge a final, undisturbed special circumstance finding in a petition for resentencing under section 1170.95. As noted, ante, footnote 9, that issue is presently before the Supreme Court.
27
the ‘“hallmark features”’ of youth include ‘“immaturity, impetuosity, and failure to
appreciate risks and consequences.”’ (People v. Gutierrez (2014) 58 Cal.4th 1354, 1377.
. . , quoting Miller v. Alabama, supra, 567 U.S. at p. 477 . . .) ‘“[T]he background and
mental and emotional development of a youthful defendant [must] be duly considered” in
assessing his culpability.’ (Miller, at p. 476 . . .) ‘[T]hey “are more vulnerable or
susceptible to . . . outside pressures” than adults . . . .’ (J.D.B. v. North Carolina (2011)
564 U.S. 261, 272 . . . .) A juvenile’s immaturity and failure to appreciate the risks and
consequences of his or her actions bear directly on the question whether the juvenile is
subjectively ‘“aware of and willingly involved in the violent manner in which the
particular offense is committed”’ and has ‘consciously disregard[ed] “the significant risk
of death his or her actions create.”’ (Scoggins, supra, 9 Cal.5th at p. 677; see Moore,
supra, 68 Cal.App.5th at p. 453; People v. Harris, supra, 60 Cal.App.5th at p. 960.)”
(Ramirez, at pp. 990-991.)
Unlike in Moore, the Court of Appeal in Ramirez did not merely hold, with no
analysis, that the defendant’s youth undoubtedly established he had not acted with
reckless indifference for human life. Instead, the court considered evidence in the record
about the defendant’s youth that bore directly on the Banks/Clark analysis. “As we
observed in Ramirez’s direct appeal, ‘there was evidence to support a finding that
Ramirez was influenced by peer pressure. He told [a police officer] that he did not want
to approach the car, but [the actual shooter] insisted. He was afraid that if he did not help
[the shooter], the neighborhood would find out and someone might kill him later.’
[Citation.] Although ‘Ramirez knew there was going to be a carjacking and that [the
28
shooter] was going to use a gun’ (ibid.), Ramirez’s age may well have affected his
calculation of the risk of death posed by using the firearm in the carjacking, as well as his
willingness to abandon the crime. The evidence is not sufficient to prove 15-year-old
Ramirez was ‘subjectively aware that his actions created a graver risk of death’ than any
other armed carjacking. (Moore, supra, 68 Cal.App.5th at p. 454; see Scoggins, supra,
9 Cal.5th at p. 677.)” (Ramirez, at p. 991.) Therefore, the court reversed the order
denying the defendant’s petition for resentencing and remanded for the trial court to grant
the petition and vacate his murder conviction. (Id. at pp. 993, 1000.)
We need not decide today whether youth is a factor that must be considered
whenever the Banks/Clark analysis is conducted for a defendant who was a minor at the
time of the offense. Assuming without deciding that youth is a proper factor among
many we may consider under the totality of the circumstances, we are persuaded by the
measured approaches taken by the courts in Harris, supra, 60 Cal.App.5th 939 and
Ramirez, supra, 71 Cal.App.5th 970.13 We decline to follow Moore, supra,
68 Cal.App.5th 434 to the extent it can be read to suggest that youth is, by itself, a
decisive factor whenever the defendant was a minor at the time of the offense.
13 However, for the reasons stated in this court’s opinion in People v. Jones, supra, 56 Cal.App.5th 474, we must disagree with Harris and Ramirez on the threshold question of whether the special circumstance finding may be challenged in a resentencing proceeding under section 1170.95. (See Estate of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9 [“Absent a compelling reason, the Courts of Appeal are normally loath to overrule prior decisions from another panel of the same undivided district or from the same division.”].)
29
As indicated, ante, after this court affirmed his conviction, petitioner requested the
trial court resentence him to 25 years to life pursuant to Miller v. Alabama, supra,
567 U.S. 460. Defendant presented evidence to establish that, considering his youth and
immaturity, his culpability for the murder was greatly reduced and did not justify a
sentence of LWOP. After applying the five factors set forth in People v. Gutierrez
(2014) 58 Cal.4th 1354 for determining whether a minor may be sentenced to LWOP, the
corruption’” was such that “‘he should never be allowed to dwell among free men.’”
(People v. Harper, supra, E063475.)
For instance, with respect to the hallmark features of youth (People v. Gutierrez,
supra, 58 Cal.4th at p. 1388), “[t]he trial court noted that defendant was only a few days
short of his 17th birthday and thus ‘essentially he [was] a 17-year–old.’ It added that he
‘held himself out as being a 19-year-old and was accepted as a 19-year-old, so he [was]
not that immature. He certainly had an appreciation for the risks and consequences of
what goes on in a criminal behavior, because one of his very best friends was killed at
age 14 in a drive-by shooting, and he said he missed his friend greatly.’” (People v.
Harper, supra, E063475.) On appeal, petitioner argued the fact he told people he was
19 years old did not mean he was cognitively or emotionally an adult. We disagreed,
stating, “The point . . . is not just he told people this, but that they believed him. In other
words, he was able to pass for 19.” (Ibid.)
For the second factor, “‘environmental vulnerabilities’” (People v. Gutierrez,
supra, 58 Cal.4th at p. 1389), petitioner presented evidence that his home life was
30
“‘brutal’” and “‘dysfunctional,’” and, as a child, he was exposed to violence in the
community. (People v. Harper, supra, E063475.) Although it noted petitioner “‘had a
rough youth,’” the trial court gave it “‘little weight.’” On appeal, this court noted
petitioner’s “abuse and neglect” by his father “were not trivial,” but we also noted the
abuse mostly came to an end when he was seven years old and he was returned to his
mother. Moreover, we noted, “Many of the bad things that happened to him during his
childhood could be viewed as the result of his own inclinations. He was shot at because
he chose to hang out with a gang. He was in a series of juvenile placements because he
used drugs, sold drugs, and stole. Repeatedly running away from those placements was
hardly a way to find stability.” (Ibid.)
Relevant here, the trial court found the third factor, the circumstances of the
homicide offense (People v. Gutierrez, supra, 58 Cal.4th at p. 1389), strongly supported a
sentence of LWOP. “The trial court stated: ‘[I]t’s very clear that he knew what was
going to take place. He was aware of the gun. He was aware of the knives. . . . [H]e
showed Miss Rogers where the knives were, . . . he actually gave her the gun.’ [¶] It also
stated: ‘In my opinion, he did have an intent to kill, not only by these acts, but by the fact
that the victim knew each of these three persons. It was clear there was an intent to rob
and thus presumably an intent not to get caught, thus the intent to kill is inherent in such
an act, and it is hard for me to conceive that he entered that store without the
understanding that . . . [the victim] would be killed.’ [¶] It added: ‘At one point . . .
Brown came out of the back room and seemed to be a little bit hesitant as to what he
should do. . . . And Mr. Harper said, “Just go do what you have to do and let’s get out of
31
here.” Again, with no humanity involved in simply wanting to get this crime . . . over
and done with. [¶] . . . Later he bragged about the items he stole. . . . He bragged about
the fact that, “Now we can do our laundry. I have a fistful of quarters.” And then he
flashed bundles of hundreds or 50s or 20s, whatever it was. And he seemed to be
indifferent to the fact that a life had been taken.’” (People v. Harper, supra, E063475.)
As indicated, on appeal, this court held the evidence strongly supported the trial
court’s conclusion that petitioner knew the victim could identify him and his confederates
and, therefore, he knew from the beginning the plan was to kill the victim. (People v.
Harper, supra, E063475.) And, this court agreed with the trial court that testimony from
a clinical and forensic psychologist did not establish Brown dominated petitioner and
induced him to participate in the robbery. “Quite the contrary, Brown planned to rob the
99 Cent Store without involving defendant. Defendant decided to go along on his own
initiative, simply because he did not want to stay at the trailer park with Brown’s brother.
The trial court noted that before defendant even met Brown, he was already involved
with a gang; he sold drugs, stole cars, and assaulted his mother with a chain. It concluded
that ‘[f]or him to go into the 99 Cent Store armed with a firearm . . . , intending to steal
. . . , in the company of others [was] in perfect harmony with the life he led up to that
point.’” (Ibid.)
True, after a federal district court issued a writ of habeas corpus, the trial court
resentenced petitioner to 25 years to life. But, it is one thing to say petitioner should
eventually be eligible for a parole hearing because he was a minor at the time of the
offense, and quite another to say he did not have the maturity to have acted with reckless
32
disregard for human life. The evidence demonstrates petitioner willingly participated in
the robbery despite knowing there was a very high risk—if not a certainty—the victim
would die. His conduct during the robbery (giving the shotgun to Brown as they entered
the store, telling Rogers where she could find knives, taking merchandise from the store),
and his statements during and after the robbery that reflected his callousness or
indifference to whether the victim lived or died, all show he did not act like an immature,
naïve, or impulsive adolescent. Therefore, we conclude petitioner’s youth at the time of
the offense in no way undermines what we have concluded, ante: the record contains
substantial evidence he was a major participant in the robbery and he acted with reckless
disregard for human life.
VI.
DISPOSITION
The petition for writ of habeas corpus is denied.
CERTIFIED FOR PUBLICATION
McKINSTER J. We concur:
RAMIREZ P. J.
SLOUGH J.
33
AI Brief
AI-generated · verify before citing
Holding. The court denied the petition for writ of habeas corpus, concluding that substantial evidence supports the jury's finding that the petitioner was a major participant in the robbery and acted with reckless indifference to human life.
Issues
Whether the petitioner was a 'major participant' in the robbery under the standards set forth in People v. Banks.
Whether the petitioner acted with 'reckless indifference to human life' under the standards set forth in People v. Clark.
Disposition. denied
Quotations verified verbatim against the opinion
“The evidence in the record of conviction shows petitioner was a major participant in the robbery, and he acted with reckless indifference to human life, so the jury’s special circumstance finding must stand.”
“The law “thus imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life.””