participation ‘in criminal activities known to carry a grave risk of death’ [citation] was
sufficiently significant to be considered ‘major’ [citations].” (Banks, supra, 61 Cal.4th at
p. 803.)
In the case before it: “No evidence was introduced establishing Matthews’s role,
if any, in planning the robbery. No evidence was introduced establishing Matthews’s
role, if any, in procuring weapons. . . . [N]o evidence was introduced that Matthews [or
his coparticipants] had themselves previously committed murder, attempted murder, or
any other violent crime. . . . [P]articipation in an armed robbery, without more, does not
involve ‘engaging in criminal activities known to carry a grave risk of death.’ [Citation.]
During the robbery and murder, Matthews was absent from the scene, sitting in a car and
waiting. There was no evidence he saw or heard the shooting, that he could have seen or
heard the shooting, or that he had any immediate role in instigating it or could have
prevented it. [¶] On this record, Matthews was, in short, no more than a getaway driver,
guilty . . . of ‘felony murder simpliciter’ [citations] but nothing greater.” (Banks, supra,
61 Cal.4th at p. 805, fn. omitted.)
As the trial court here ruled, petitioner’s statement, “Shoot him,” distinguishes this
case from Banks. Up until that point, for all the evidence showed, petitioner was no more
than a getaway driver. That statement, however, shows that he was aware that his
coparticipants were armed. Even more important, it shows that he took on — or already
8
had — a role in directing the robbery and the conduct of his coparticipants. He had the
right to decide to use lethal force and to order his coparticipants to do so.
In Banks, the court observed, “In cases where lethal force is not part of the agreed-
upon plan, absence from the scene may significantly diminish culpability for death.
[Citation.]” (Banks, supra, 61 Cal.4th at p. 803, fn. 5.) Here, petitioner was absent from
the scene of the murder. Nevertheless, by saying “Shoot him,” he showed that using
lethal force, if necessary, was within the scope of the agreed-upon plan. This is not a
case in which murder “was the farthest thing from his mind.” (Cf. In re Bennett (2018)
26 Cal.App.5th 1002, 1020.)
Admittedly, petitioner ordered his coparticipant to shoot the citizen, who was
unhurt, rather than the owner of the market, who was the victim of the murder. Even so,
what is required is that petitioner was a major participant in a robbery known to carry a
grave risk of death, not that he was a major participant in the murder. Saying “Shoot
him” is sufficient to satisfy that requirement. Finally, as the trial court also ruled, when
defendant said it, the robbery was still underway, because the robbers had not yet reached
a place of temporary safety. (People v. Debose (2014) 59 Cal.4th 177, 205.)
We therefore conclude that there was sufficient evidence that petitioner was a
major participant in the robbery. Hence, he was not entitled to resentencing.
9
IV
DISPOSITION
The order denying the petition is affirmed.
CERTIFIED FOR PUBLICATION RAMIREZ P. J. We concur:
CODRINGTON J.
SLOUGH J.
10
AI Brief
AI-generated · verify before citing
Holding. The court held that there was sufficient evidence to support the trial court's finding that the defendant was a major participant in the underlying robbery, thereby disqualifying him from resentencing under Penal Code section 1170.95.
Issues
Whether there was sufficient evidence to support the trial court's finding that the defendant was a major participant in the underlying robbery under the Tison standard.
Disposition. affirmed
Quotations verified verbatim against the opinion
“We will hold that there was sufficient evidence to support the trial court’s finding that petitioner was a major participant in the underlying robbery.”
“Saying “Shoot him” is sufficient to satisfy that requirement.”
“We therefore conclude that there was sufficient evidence that petitioner was a major participant in the robbery.”