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Date: 02-21-2019

Case Style: In re Arthur Espindola Ramirez, On Habeas Corpus

Case Number: F075897

Judge: Hill, P.J.

Court: California Court of Appeals Fifth Appellate District

Plaintiff's Attorney: Kyle Gee

Defendant's Attorney: Kamala D. Harris, Xavier Becerra, Gerald A. Engler, Michael P. Farrell, Eric L.
Christoffersen, Janet E. Neeley, Michael A. Cozoneri and Barton Bowers


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“I. The Prosecution.
“Eustacio [surname omitted] testified that he was 13 years old in
January of 1996. He lived with his parents and [petitioner], who was then
aged 19. Eustacio belonged to a ‘Sureno’ (southern California) street gang.
His best friend was 16-year-old Josh [surname omitted]. On or about
January 14, 1996, the [petitioner], Eustacio and Josh searched through an
abandoned house and trailer. [Petitioner] found a sock in which a .25-
caliber handgun (hereafter the .25) and a .32-caliber handgun (hereafter the
.32) were secreted. The guns were given to a friend of Eustacio’s father to
be cleaned.
“The following day, the three went shopping with Eustacio’s mother.
At Eustacio’s request, she purchased ammunition for the weapons.
Eustacio took the ammunition from his mother and [petitioner] put it under
one of the beds in the room Eustacio shared with [petitioner]. Later,
[petitioner] retrieved the cleaned guns. While [petitioner] looked on,
Eustacio loaded the .32 and Josh loaded the .25. Now armed, the three
began walking around the neighborhood. They stopped at a couple of
shacks where [petitioner] and Eustacio fired the .25. They went into a fig
orchard and all three shot the .32 at the trees; Eustacio also shot the .25.
They returned home and Eustacio hid the weapons under his bed.
“Early in the evening of January 17, 1996, the three companions
decided to go to a grocery store to buy food for a barbecue. To protect
themselves from members of rival ‘Nortenos’ (northern California) street
gangs, Eustacio put the loaded .32 in his waistband; Josh carried the loaded
.25. They told [petitioner] they were armed before they left the house.
They rode their bicycles to a grocery store on Lake Street, but did not buy
anything. They decided to go to Eustacio’s sister’s house. On the way they
encountered two friends, Omar and Bart. With [petitioner] standing

1 The return includes respondent’s request that we take judicial notice of our records in
cases Nos. F029659 (People v. Ramirez), F060133 (In re Ramirez), and F073246 (In re
Ramirez). Respondent has failed to file a separate motion and proposed order as required by
California Rules of Court, rules 8.252(a) and 8.386(e). Because petitioner expressly states he
has no objection, however, and because we cannot address the merits of the instant petition
without reference to petitioner’s prior appeal and petitions, respondent’s request for judicial
notice is granted.
We take our statement of facts from this court’s nonpublished opinion in People v.
Ramirez (June 18, 1999, F029659).
nearby, Eustacio and Josh showed them the handguns. Omar then
displayed his own weapon. After Omar and Bart left, the three rode their
bicycles onto Kennedy Street. A car pulled over and Candido [surname
omitted], a friend of theirs ‘from the juvenile hall board,’ exited the vehicle.
With [petitioner] standing next to them, Eustacio and Josh showed Candido
their weapons. Candido said to them, ‘ “If you guys want, let’s go
jacking.” ’ [Petitioner] either replied, ‘ “Do whatever you guys want,” ’ or
‘whatever we want to do.’ Josh said ‘ “Let’s go for it.” ’ Eustacio initially
refused but eventually agreed to participate.
“The four went to Candido’s house to get a shotgun. Candido went
inside the house for five to ten minutes but, because his mother was home,
came back outside without the weapon. They left Candido’s house and
rode down Lake Street, searching for a person to rob. Candido was riding
Eustacio’s bicycle; Eustacio was perched on the handlebars of [petitioner’s]
bicycle. Later, Eustacio traded places with Josh who then sat on the
handlebars of [petitioner’s] bicycle. They stopped at a gas station where
Candido gave Eustacio a ‘stun gun,’ and took the .32 from him.
[Petitioner] was standing beside Eustacio when he gave the handgun to
“Eventually, the four saw a sign for Skeeko’s Bar. Candido said to
the others, ‘ “That’s it right there. That’s the place.” ’ They rode across the
street from the bar, stopped and waited. A short time later, a truck pulled
into the lot. Candido said, ‘ “That’s the car. That’s it.” ’ He gave his
bicycle to [petitioner] to hold and said to Eustacio, ‘ “Wait here.” ’
Candido and Josh jogged into the parking lot toward the truck. Eustacio
heard keys locking a door and then heard either Candido or Josh say,
‘ “Give me your money.” ’ He then heard a ‘thump, somebody hit
something.’ Immediately thereafter he heard four or five gunshots,
followed by three or four more shots. Eustacio moved closer to the truck;
[petitioner] was behind him holding Candido’s bicycle. They were met by
Candido and Josh. Eustacio asked Candido what had happened. Candido
replied that they were to ‘get out of here.’ Josh climbed onto the
handlebars of [petitioner’s] bicycle and the four rode off. Candido looked
back and saw someone lying on the ground. They were soon stopped by a
police officer. It appeared to Eustacio that Josh had thrown something into
a nearby field. [¶] … [¶]
“Madera City Police Officer Leon George testified that he was
dispatched to Skeeko’s Bar at 8:29 p.m. During a search of the outlying
area, he stopped [petitioner] and his companions. Officer George recovered
the .32 from Candido during a pat search. There were four spent shells and
two live rounds in the weapon’s chamber. He searched a nearby field and
found the .25 lying on the ground. The weapon had one spent cartridge
jammed in the chamber.
“[Patrick Shawn] Neal died in Skeeko’s parking lot after having
suffered six gunshot wounds to the head, chest, right hip, upper right arm
and left finger. Four .32-caliber bullets and two .25-caliber bullets were
removed from the victim’s body. These bullets were fired from the seized
.32 and .25.
“Madera City Police Detective Fabian Benabente testified that he
interviewed all four suspects on the night of their arrest. The tape of his
interview with [petitioner] was admitted as evidence and played for the
jury. [Petitioner] told the officer that the four of them went to Skeeko’s
because ‘we just wanted to jack somebody to get some money.’ The
decision to ‘jack somebody’ was made by ‘[e]verybody.’ Josh rode on the
handlebars of [petitioner’s] bicycle. [Petitioner] knew that Josh was armed
with the .25 and Candido had the .32. The guns had been found in an
abandoned house and Eustacio’s mother had purchased ammunition for the
weapons. They waited for someone to approach. He and Eustacio waited
on the street while Josh and Candido walked toward the truck. He heard
Josh say, ‘Give me your money,’ and then the sound of approximately six
gunshots. He did not see anything because ‘I just didn’t, didn’t want to
look. Cause’ I knew they were just gonna’ take his money and then just
leave real fast. I didn’t want him to see my face.’ Josh and Candido ran
back to them. Josh told them that the victim had punched him. He had shot
his gun but did not know if he had hit the victim. They rode off.
[Petitioner] saw Josh throw a gun onto the grass when they were stopped a
short time later.
“II. The Defense. [¶] … [¶]
“In sum, [petitioner] testified that he did not know what happened to
the guns found in the sock and he did not fire them, he was not involved in
the purchase of ammunition, no one discussed or displayed any firearms on
the evening of the murder, he was not asked to participate in a robbery, he
did not know what Candido or Josh were going to do at Skeeko’s Bar, and
he did not go there with the intent to commit any crime.” (People v.
Ramirez, supra, F029659, fns. omitted.)
Petitioner was charged with murder committed while he was an accomplice in the
attempted commission of robbery (Pen. Code,2 §§ 187, subd. (a), 190.2, subd. (a)(17)
[count 1]), attempted robbery (§§ 211, 664 [count 2]), and conspiracy to commit robbery
(§§ 182, subd. (a)(1), 211 [count 3]). The jury was instructed, concerning the robberymurder
special circumstance, that with respect to a nonkiller, the special circumstance
could not be found true unless that person acted with the intent to kill, or with reckless
indifference to human life and as a major participant.
On February 27, 1997, petitioner was convicted as charged and the specialcircumstance
allegation was found to be true. On November 7, 1997, he was sentenced
to life in prison without the possibility of parole (LWOP) on count 1, plus five years on
count 3. Sentence on count 2 was stayed pursuant to section 654. Petitioner appealed,
claiming (insofar as is pertinent) that there was insufficient evidence to sustain the
finding required for the special circumstance that petitioner acted with reckless
indifference to human life and as a major participant. On June 18, 1999, we affirmed the
judgment in its entirety and ordered amendment of the abstract of judgment. (People v.
Ramirez, supra, F029659.) The California Supreme Court denied review on September
29, 1999, and remittitur issued on October 7, 1999.
On July 9, 2015, the California Supreme Court decided People v. Banks (2015) 61
Cal.4th 788 (Banks). The issue, as framed by the court, was “under what circumstances
an accomplice who lacks the intent to kill may qualify as a major participant so as to be
statutorily eligible for the death penalty.” (Id. at p. 794.)
Petitioner subsequently filed a petition for writ of habeas corpus in Madera County
Superior Court, in which (insofar as we are able to ascertain) he asserted Banks rendered
him ineligible to receive an LWOP sentence. The petition was denied on December 14,
2015, with the trial court finding petitioner’s conduct amounted to major participation

2 All statutory references are to the Penal Code.
and reckless indifference to human life as required by Banks. On February 23, 2016,
petitioner filed a petition for writ of habeas corpus in this court (case No. F073246), in
which he raised the Banks issue. We solicited an informal response, then denied the
petition on July 26, 2016.
On September 26, 2016, petitioner filed a petition for writ of habeas corpus in the
California Supreme Court (case No. S237424), in which he again raised the Banks issue.
On June 28, 2017, after soliciting and receiving an informal response, that court ordered
the Secretary of the Department of Corrections and Rehabilitation to show cause before
this court why petitioner is not entitled to the relief requested. We appointed counsel for
petitioner, and also requested supplemental briefing regarding the effect, if any, of Senate
Bill No. 1437, (Stats. 2018, ch. 1015, §§ 2, 3, 4, eff. Jan. 1, 2019, amending §§ 188, 189,
& adding § 1170.95) on petitioner.3
Murder committed in the perpetration of, or attempt to perpetrate, robbery is
deemed by statute to be first degree murder. (Former § 189, now § 189, subd. (a).)4

Subdivision (a)(17) of section 190.2 provides for a penalty of death or LWOP for a
defendant found guilty of first degree murder committed “while the defendant was
engaged in, or was an accomplice in, the commission of, attempted commission of, … :
[¶] (A) Robbery in violation of Section 211 .…” (§ 190.2, former subd. (a)(17)(i), now
subd. (a)(17)(A).)

3 After receiving said briefing, we agree with the parties that we need not address this new
law in the present proceeding.
4 Unless otherwise specified, the pertinent statutes have remained unchanged since
petitioner committed his offenses in 1996.
The mere fact a felony enumerated in section 189, subdivision (a) was committed
and death resulted is, however, insufficient of itself to establish a felony-murder special
circumstance with respect to a person such as petitioner, who aided and abetted the
underlying felony but was not the actual killer. Rather, the nonkiller must aid and abet
the commission of murder in the first degree with the intent to kill (§ 190.2, subd. (c)), or,
lacking intent to kill, must aid and abet the commission of the felony “with reckless
indifference to human life and as a major participant … ” (id., subd. (d)).
Section 190.2, subdivision (d) was enacted in 1990 to bring state law into
conformity with prevailing Eighth Amendment doctrine, as set out in the United States
Supreme Court’s decision Tison v. Arizona (1987) 481 U.S. 137 (Tison). (People v.
Estrada (1995) 11 Cal.4th 568, 575 (Estrada); Tapia v. Superior Court (1991) 53 Cal.3d
282, 298 & fn. 16.)
In Tison, two brothers aided an escape by bringing guns into a prison and arming
two murderers, one of whom they knew had killed in the course of a previous escape
attempt. After the breakout, one of the brothers flagged down a passing car, and both
fully participated in kidnapping and robbing the vehicle’s occupants. Both then stood by
and watched as those people were killed. The brothers made no attempt to assist the
victims before, during, or after the shooting, but instead chose to assist the killers in their
continuing criminal endeavors. (Tison, supra, 481 U.S. at pp. 151–152.) The Supreme
Court held the brothers could be sentenced to death despite the fact they had not actually
committed the killings themselves or intended to kill, stating: “[R]eckless disregard for
human life implicit in knowingly engaging in criminal activities known to carry a grave
risk of death represents a highly culpable mental state, a mental state that may be taken
into account in making a capital sentencing judgment when that conduct causes its
natural, though also not inevitable, lethal result. [¶] The [brothers’] own personal
involvement in the crimes was not minor, but rather, … ‘substantial.’ Far from merely
sitting in a car away from the actual scene of the murders acting as the getaway driver to
a robbery, each … was actively involved in every element of the kidnap[p]ing-robbery
and was physically present during the entire sequence of criminal activity culminating in
the murder[s] … and the subsequent flight. The Tisons’ high level of participation in
these crimes … implicates them in the resulting deaths.” (Id. at pp. 157–158.)
The Tison court pointed to the defendant in Enmund v. Florida (1982) 458 U.S.
782 (Enmund) as an example of a nonkiller convicted of murder under the felony-murder
rule for whom the death penalty was unconstitutionally disproportionate. Enmund was
the driver of the getaway car in an armed robbery of a dwelling whose occupants were
killed by Enmund’s accomplices when they resisted. (Id. at pp. 784–785; see Tison,
supra, 481 U.S. at p. 146.) In deciding the Eighth Amendment to the United States
Constitution forbids imposition of the death penalty “on one such as Enmund who aids
and abets a felony in the course of which a murder is committed by others but who does
not himself kill, attempt to kill, or intend that a killing take place or that lethal force will
be employed” (Enmund, supra, at p. 797), the high court emphasized that the focus had to
be on the culpability of Enmund himself, and not on those who committed the robbery
and shot the victims (id. at p. 798). “Enmund himself did not kill or attempt to kill; and,
… the record … does not warrant a finding that Enmund had any intention of
participating in or facilitating a murder.… [T]hus his culpability is plainly different from
that of the robbers who killed; yet the State treated them alike and attributed to Enmund
the culpability of those who killed the [victims]. This was impermissible under the
Eighth Amendment.” (Ibid.)
In Tison, the United States Supreme Court acknowledged that the Tison brothers
likewise did not intend to kill, and so they did not “fall within the ‘intent to kill’ category
of felony murderers for which Enmund” found the death penalty permissible. (Tison,
supra, 481 U.S. at p. 151.) The court found it “equally clear,” however, that the pair also
fell outside the category of felony murderers for whom Enmund found the death penalty
disproportional (Tison, supra, at p. 151): The facts shown by the record “not only
indicate[d] that the Tison brothers’ participation in the crime was anything but minor;
they also … clearly support[ed] a finding that they both subjectively appreciated that
their acts were likely to result in the taking of innocent life.” (Id. at p. 152.)
The high court observed: “Although we state these two requirements [major
participation in the felony committed and reckless indifference to human life] separately,
they often overlap. For example, we do not doubt that there are some felonies as to
which one could properly conclude that any major participant necessarily exhibits
reckless indifference to the value of human life. Moreover, even in cases where the fact
that the defendant was a major participant in a felony did not suffice to establish reckless
indifference, that fact would still often provide significant support for such a finding.”
(Tison, supra, 481 U.S. at p. 158, fn. 12.)
In Estrada, supra, 11 Cal.4th 568, the California Supreme Court read Tison to
“instruct[] that the culpable mental state of ‘reckless indifference to life’ is one in which
the defendant ‘knowingly engag[es] in criminal activities known to carry a grave risk of
death’ [citation],” and, so ascribed that meaning to the statutory phrase in subdivision (d)
of section 190.2. (Estrada, supra, at p. 577.) The court concluded “the generally
accepted meaning of the phrase, ‘reckless indifference to human life,’ in common
parlance amply conveys to the jury the requirement of a defendant’s subjective awareness
of the grave risk to human life created by his or her participation in the underlying
felony.” (Id. at p. 578.)5
In Banks, supra, 61 Cal.4th 788, Matthews was convicted of first degree murder
with a felony-murder special circumstance based on his having acted as the getaway

5 Although the California Supreme Court determined in Estrada that trial courts have no
sua sponte duty to explain the phrase “reckless indifference to human life” to the jury (Estrada,
supra, 11 Cal.4th at p. 581), the written form of CALJIC No. 8.80.1 (1996 rev.) (5th ed. 1988)
instructed petitioner’s jury that “[a] defendant acts with reckless indifference to human life when
that defendant knows or is aware that his acts involve a grave risk of death to an innocent human
driver for an armed robbery in which Banks and others participated, and in which Banks
shot and killed one of the robbery victims while escaping. (Id. at pp. 794, 797.)
Matthews was sentenced to LWOP. (Id. at p. 797.) The Court of Appeal rejected his
challenge to the sufficiency of the evidence supporting the special-circumstance finding
and concluded his actions as a getaway driver for the underlying robbery, with
knowledge death was always a possibility in an armed robbery, were legally sufficient
under section 190.2, subdivision (d). The California Supreme Court granted review to
address the “proper construction” of that statute (Banks, supra, at p. 797), and concluded
the evidence was “insufficient as a matter of law to support the special circumstance,”
making Matthews “statutorily ineligible” for LWOP (id. at p. 794).
In reaching this conclusion, the state Supreme Court agreed with People v. Proby
(1998) 60 Cal.App.4th 922, 923 (Proby), that the phrase “major participant” does not
have a specialized or technical meaning. (Banks, supra, 61 Cal.4th at pp. 800–801.)6
observed, however, that “rephrasing Tison’s dictates in essentially synonymous words
takes us only so far. To gain a deeper understanding of the governing test and offer
further guidance,” it turned to a close examination of Enmund and Tison. (Banks, supra,
at p. 801.) It stated:
“The two cases embrace the United States Supreme Court’s longstanding
recognition that, in capital cases above all, punishment must
accord with individual culpability.… 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. [Citations.]
“With respect to the mental aspect of culpability, Tison, and in turn
section 190.2[, subdivision ](d), look to whether a defendant has
‘ “knowingly engag[ed] in criminal activities known to carry a grave risk of
death.” ’ [Citation.] The defendant must be aware of and willingly

6 Proby observed that “[t]he common meaning of ‘major’ includes ‘notable or conspicuous
in effect or scope’ and ‘one of the larger or more important members or units of a kind or
group.’ ” (Proby, supra, 60 Cal.App.4th at pp. 933–934.)
involved in the violent manner in which the particular offense is committed,
demonstrating reckless indifference to the significant risk of death his or
her actions create.…
“With respect to conduct, Tison and Enmund establish that a
defendant’s personal involvement must be substantial, greater than the
actions of an ordinary aider and abettor to an ordinary felony murder such
as Earl Enmund. The defendants’ actions in Tison [citation] and Enmund
[citation] represent points on a continuum. [Citation.] Somewhere between
them, at conduct less egregious than the Tisons’ but more culpable than
Earl Enmund’s, lies the constitutional minimum for death eligibility.…
[¶] … [¶]
“Among those factors that distinguish the Tisons from Enmund, and
thus may play a role in determining whether a defendant’s culpability is
sufficient to make his or her death eligible, are these: 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? 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? 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? What
did the defendant do after lethal force was used? No one of these
considerations is necessary, nor is anyone of them necessarily sufficient.
All may be weighed in determining the ultimate question, whether the
defendant’s participation ‘in criminal activities known to carry a grave risk
of death’ [citation] was sufficiently significant to be considered ‘major’
“The People propose we treat as a major participant … anyone
‘whose conduct involves the intentional assumption of some responsibility
for the completion of the crime regardless of whether the crime is
ultimately successful. As such, participation in planning with the intent of
facilitating the commission of the crime, or participating in conduct integral
to or for the purpose of facilitating the commission of the crime, constitutes
major participation.’ This test cannot be reconciled with the holdings of
Tison and Enmund. Requiring only ‘the intentional assumption of some
responsibility for the completion of the crime’ would sweep in essentially
every felony murderer—indeed, even Earl Enmund himself—whether an
actual killer or not. Doing so would violate the Supreme Court’s
requirement that each felony murderer’s culpability be considered
individually and disregard the court’s corresponding recognition that, for
many nonkillers, death is disproportionate to that individual’s culpability
and thus unconstitutional.
“Finally, we note the standards we articulate, although developed in
death penalty cases, apply equally to cases like this one involving statutory
eligibility under section 190.2[, subdivision ](d) for life imprisonment
without parole. As a purely constitutional matter, nothing would foreclose
California from imposing life imprisonment without parole sentences on
felony murderers with Matthews’s degree of culpability. [Citations.]
Section 190.2, [subdivision ](d) does not, however, extend eligibility for
life imprisonment without parole to every defendant exhibiting the
constitutionally minimum degree of culpability for that sentence. Instead,
by importing the Tison-Enmund standard, it permits such a sentence only
for those felons who constitutionally could also be subjected to the more
severe punishment, death. As a matter of state statute, then, the TisonEnmund
standard is ‘applicable 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.’ [Citation.] Accordingly, the
considerations that informed the Supreme Court’s distinctions between
differing levels of culpability in Tison v. Arizona [citation] should guide
juries faced with making those same distinctions under section 190.2[,
subdivision ](d).” (Banks, supra, 61 Cal.4th at pp. 801–804, fn. omitted.)
The state high court concluded the record evidence placed Matthews at the
Enmund pole of the Tison-Enmund spectrum. (Banks, supra, 61 Cal.4th at p. 805.)
Because he was “no more than a getaway driver, guilty like Earl Enmund of ‘felony
murder simpliciter’ [citations] but nothing greater,” he was ineligible for the death
penalty under Tison and Enmund. (Banks, supra, at p. 805.) Since the evidence was
insufficient to make him death eligible under those cases, it was also insufficient to
sustain a true finding as to the special circumstance and make Matthews eligible for
LWOP under state law. (Ibid.)
The court further found Matthews lacked the mens rea necessary to make him
legally eligible for a sentence of LWOP. (Banks, supra, 61 Cal.4th at p. 807.) It
“Reckless indifference to human life ‘requires the defendant be
“subjectively aware that his or her participation in the felony involved a
grave risk of death.” ’ [Citation.] There was evidence from which the jury
could infer Matthews knew he was participating in an armed robbery. But
nothing at trial supported the conclusion beyond a reasonable doubt that
Matthews knew his own actions would involve a grave risk of death. There
was no evidence Matthews intended to kill or, unlike the Tisons, knowingly
conspired with accomplices known to have killed before. Instead, as in
Enmund, Banks’s killing of [the victim] was apparently a spontaneous
response to armed resistance from the victim.
“The Court of Appeal, in a line of reasoning endorsed by the People,
concluded that ‘[w]ith advance knowledge of the planned robbery and
burglary, Matthews had to be aware of the risk of resistance and the
extreme likelihood that death could result.’ According to the appellate
court, Matthews’s confederates surely ‘anticipated as much because they
were armed,’ and although Matthews was not armed, the jury could readily
infer Matthews knew his confederates were.
“The problem with the sufficiency of such evidence to prove
reckless indifference to human life is that Enmund and Tison deem identical
evidence inadequate.…
“ … Awareness of no more than the foreseeable risk of death
inherent in any armed crime is insufficient; only knowingly creating a
‘grave risk of death’ satisfies the constitutional minimum. [Citation.]
“ … The Supreme Court [in Tison] made clear felony murderers like
Enmund, who simply had awareness their confederates were armed and
armed robberies carried a risk of death, lack the requisite reckless
indifference to human life. The Court of Appeal’s equating Matthews’s
similar awareness with reckless indifference to human life cannot be
squared with Enmund and Tison.
“Alternatively, the People highlight the United States Supreme
Court’s recognition that ‘there are some felonies as to which one could
properly conclude that any major participant necessarily exhibits reckless
indifference to the value of human life.’ [Citation.] They argue each crime
listed in [former] section 189 [(now § 189, subd. (a))] qualifies and thus

In a footnote at this point, the court disapproved People v. Lopez (2011) 198 Cal.App.4th
1106 to the extent it held knowledge an accomplice was armed can, by itself, establish reckless
indifference to human life under section 190.2, subdivision (d). The court also disapproved
People v. Hodgson (2003) 111 Cal.App.4th 566 to the extent it could be read to hold awareness a
robbery accomplice was armed, without more, establishes the necessary subjective awareness of
a grave risk of death. (Banks, supra, 61 Cal.4th at p. 809, fn. 8.)
Matthews, because he participated in two such crimes, robbery and
burglary, has automatically exhibited reckless indifference to human life.
“Section 189[, subdivision (a)] codifies the first degree felonymurder
rule [citation]; participation in the crimes it lists subjects one to
liability for first degree murder. To make participation in such crimes also
sufficient, without more, to establish categorically reckless indifference to
human life would collapse the Tison inquiry into the felony-murder inquiry
and treat all felony murderers as equally culpable and eligible for death.
But the central holding of Enmund, and Tison after it, was that for purposes
of the death penalty, not all felony murderers are equally culpable and
eligible for death. The People’s position embraces the very punishment—
death eligibility for participation in felony murder simpliciter—the
Supreme Court has declared unconstitutional. [Citations.]
“That one may infer the felonies listed in section 189[,
subdivision (a)] are those the Legislature views as ‘inherently dangerous’
[citation] does not change the analysis. Whether a category of crimes is
sufficiently dangerous to warrant felony-murder treatment, and whether an
individual participant has acted with reckless indifference to human life, are
different inquires. Section 189[, subdivision (a)] cannot be read as
attempting to conflate them, and in any event under Enmund and Tison it
would be impermissible for a state legislature to declare all participation in
broad classes of felony murders, such as burglaries or robberies, punishable
by death without further inquiry into each individual defendant’s mental
state. [Citations.][8]
” (Banks, supra, 61 Cal.4th at pp. 807–810,
fn. omitted.)
In People v. Clark (2016) 63 Cal.4th 522 (Clark), Clark was convicted, inter alia,
of first degree murder, with robbery-murder and burglary-murder special circumstances
found true, based on his liability as an aider and abettor to an accomplice’s fatal shooting
of a victim during an attempt to rob a CompUSA store. There was no evidence Clark
himself intended to kill the victim. On appeal, Clark claimed the evidence was

“Tison does not specify those few felonies for which any major participation would
‘necessarily exhibit[] reckless indifference to the value of human life.’ [Citation.] One could
surmise a partial list of crimes the United States Supreme Court might agree on—say, the
manufacture and planting of a live bomb. But we need not speculate. Even the Tisons’ prison
break of two convicted murderers was remanded, rather than treated as per se demonstrating the
requisite reckless indifference. Plainly, armed robbery does not qualify.” (Banks, supra, 61
Cal.4th at p. 810, fn. 9.)
insufficient to establish that he was a major participant in the CompUSA crimes and that
he acted with reckless indifference to human life. (Id. at pp. 610–611.)
With respect to the major participant prong, the high court considered the relevant
factors laid out in Banks, and concluded Clark had a prominent role in planning the
criminal enterprise that led to the victim’s death; however, there was no evidence about
his role in supplying the weapon (although an inference could be drawn that use of a
weapon was part of his plan for the robbery), his awareness of the particular dangers
posed by the crime, or his awareness of the past experience or conduct of the shooter.
The court noted that although Clark was in the area during the robbery, he was not in the
immediate area of the shooting. (Clark, supra, 63 Cal.4th at pp. 613–614.) The court
recognized there might be some question concerning the amount of culpability that
should be assessed for a planner of a felony leading to a murder who was not present
during the immediate circumstances leading to the murder, but concluded it did not need
to decide whether Clark was a major participant under the circumstances of the case since
the evidence was insufficient to show he exhibited reckless indifference to human life.
(Id. at p. 614.)
As to that prong, the state high court examined Tison and Banks, and reiterated
Banks’s rejection of the argument any defendant involved in a felony enumerated in
former section 189 (now § 189, subd. (a)) automatically exhibited reckless indifference to
human life. (Clark, supra, 63 Cal.4th at p. 616; see Banks, supra, 61 Cal.4th at pp. 809–
810.) It further stated:
“Tison held that the necessary mens rea for death eligibility may be
‘implicit in knowingly engaging in criminal activities known to carry a
grave risk of death.’ [Citation.] As examples, the high court cited ‘the
robber who shoots someone in the course of the robbery, utterly indifferent
to the fact that the desire to rob may have the unintended consequence of
killing the victim as well as taking the victim’s property,’ and … ‘the
person who tortures another not caring whether the victim lives or dies’ as
two examples of such murderers. [Citation.] Notably, both examples
involve a defendant who personally killed the victim—not, as in this case,
Enmund, Tison, or Banks, a vicariously liable defendant who was not the
actual killer. Nevertheless, these examples provide some indication of the
high court’s view of ‘reckless indifference,’ namely, that it 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.
“The Model Penal Code generally defines acting recklessly as
follows: ‘A person acts recklessly with respect to a material element of an
offense when he consciously disregards a substantial and unjustifiable risk
that the material element exists or will result from his conduct. The risk
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, its
disregard involves a gross deviation from the standard of conduct that a
law-abiding person would observe in the actor’s situation.’ [Citation.]
“This definition encompasses both subjective and objective
elements. The subjective element is the defendant’s conscious disregard of
risks known to him or her.… [R]ecklessness is also determined by an
objective standard, namely what ‘a law-abiding person would observe in
the actor’s situation.’ [Citation.] .…
“Finally, while the fact that a robbery involves a gun is a factor
beyond the bare statutory requirements for first degree robbery felony
murder, this mere fact, on its own and with nothing more presented, is not
sufficient to support a finding of reckless indifference to human life for the
felony-murder aider and abettor special circumstance.” (Clark, supra, 63
Cal.4th at pp. 616–617, fns. omitted.)
To determine whether there was substantial evidence Clark exhibited reckless
indifference to human life within the meaning of section 190.2, subdivision (d), the
Supreme Court considered “the specific facts of Clark’s case in light of some of the casespecific
factors that this court and other state appellate courts have considered in
upholding a determination of reckless indifference to human life in cases involving
nonshooter aiders and abettors to commercial armed robbery felony murders.” (Clark,
supra, 63 Cal.4th at p. 618.) As in Banks, the court found no one factor was necessary or
necessarily sufficient. (Clark, supra, at p. 618; see Banks, supra, 61 Cal.4th at p. 803.)
The first consideration was the defendant’s knowledge of weapons and use and
number of weapons. The court noted that the mere fact of a defendant’s awareness that a
gun would be used in the felony was insufficient to establish reckless indifference to
human life, but on the other hand, it was significant in Tison that the brothers brought an
arsenal of weapons into the prison and guarded the victims. The court also found that a
defendant’s use of a firearm, even if the defendant did not kill the victim, could be
significant. (Clark, supra, 63 Cal.4th at p. 618.) In Clark’s case, the evidence showed
only that there was one gun at the scene of the killing, it was carried by someone other
than Clark, and it had been loaded with only one bullet. (Id. at p. 619.)
The next factor was the defendant’s physical presence at the scene and
opportunities to restrain the crime and/or aid the victim. The court stated: “Proximity to
the murder and the events leading up to it may be particularly significant where, as in
Tison, the murder is a culmination or a foreseeable result of several intermediate steps, or
where the participant who personally commits the murder exhibits behavior tending to
suggest a willingness to use lethal force. In such cases, ‘the defendant’s presence allows
him to observe his cohorts so that it is fair to conclude that he shared in their actions and
mental state.… [Moreover,] the defendant’s presence gives him an opportunity to act as
a restraining influence on murderous cohorts. If the defendant fails to act as a restraining
influence, then the defendant is arguably more at fault for the resulting murders.’ ”
(Clark, supra, 63 Cal.4th at p. 619.) The court cautioned, however, that physical
presence was not invariably a prerequisite to a finding of reckless indifference. “Where,
for example, a defendant instructs other members of a criminal gang carrying out
carjackings at his behest to shoot any resisting victims, he need not be present when his
subordinates carry out the instruction in order to be found to be recklessly indifferent to
the lives of the victims.” (Ibid.) In Clark’s case, Clark was waiting across the parking lot
for a cohort to secure the store, when the cohort shot the victim. There was no evidence
Clark instructed the shooter to use lethal force, had an opportunity to observe the
shooter’s response to the victim’s unanticipated appearance, or to intervene to prevent the
killing. (Ibid.)
The court next examined the duration of the felony. The court explained: “Where
a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of
perpetrators for prolonged periods, ‘there is a greater window of opportunity for
violence’ [citation], possibly culminating in murder. The duration of the interaction
between victims and perpetrators is therefore one consideration in assessing whether a
defendant was recklessly indifferent to human life.” (Clark, supra, 63 Cal.4th at p. 620.)
In Clark’s case, the robbery was planned for after closing time, when most store
employees would be gone. Although Clark anticipated some employees would be
present, the plan was to handcuff them in a bathroom, while the robbery itself took place
elsewhere in the store. Thus, the period of interaction between perpetrators and victims
was designed to be limited, although, because the robbery was to occur in a public space
over a substantial duration, it did involve the risk of interlopers, such as the victim,
happening upon the scene. (Id. at pp. 620–621.)
Another factor was the defendant’s knowledge of a cohort’s likelihood of killing.
The court stated: “A defendant’s knowledge of factors bearing on a cohort’s likelihood
of killing are [sic] significant to the analysis of reckless indifference to human life.
Defendant’s knowledge of such factors may be evident before the felony or may occur
during the felony.… [¶] … A defendant’s willingness to engage in an armed robbery
with individuals known to him to use lethal force may give rise to the inference that the
defendant disregarded a ‘grave risk of death.’ ” (Clark, supra, 63 Cal.4th at p. 621.) In
Clark’s case, no evidence was presented that the shooter was known to have a propensity
for violence, let alone that Clark was aware of such a propensity. Nor was Clark in a
position to observe anything in the shooter’s actions just before the killing that would
have indicated the shooter was likely to engage in lethal violence. (Ibid.)
The final factor considered by the court was the defendant’s efforts to minimize
the risks of violence during the felony. Clark argued his efforts in this regard should be
taken into account, as the robbery was undertaken after closing time when most of the
employees were gone, there were not supposed to be any bullets in the gun, and the gun
had only been loaded with one bullet. (Clark, supra, 63 Cal.4th at pp. 621–622.) The
state Supreme Court found this factor relevant but not dispositive, due to “the two-part
nature of the mens rea analysis for recklessness under Tison and section 190.2,
subdivision (d).” (Id. at p. 622.) The court explained: “[R]ecklessness … implicates
both subjective and objective elements for the offense.… [E]vidence of any effort by
defendant to minimize the risks of violence could possibly be sufficient to rebut a
conclusion of defendant’s subjective awareness of engaging in activities risky to human
life. But … , although the presence of some degree of defendant’s subjective awareness
of taking a risk is required, it is the jury’s objective determination that ultimately
determines recklessness. Therefore, it would be possible for the defendant to have
engaged in apparent efforts to minimize the risk of violence but still be determined by the
jury to have been reckless, given all the circumstances known to defendant surrounding
the crime.” (Ibid.) Accordingly, the court concluded that a defendant’s good faith but
unreasonable belief that he or she was not posing a risk to human life did not foreclose a
determination of reckless indifference to human life. (Ibid.)
Although it ultimately upheld Clark’s death sentence for reasons not pertinent
here, the California Supreme Court vacated the robbery-murder and burglary-murder
special-circumstance findings. The court found insufficient evidence to support the
inference Clark was recklessly indifferent to human life. (Clark, supra, 63 Cal.4th at
pp. 623–624.)
We turn now to petitioner’s case. “To determine whether the evidence supports a
special circumstance finding, we must review ‘ “the entire record in the light most
favorable to the judgment to determine whether it discloses evidence that is reasonable,
credible, and of solid value such that a reasonable jury could find” ’ the special
circumstance allegation true ‘ “beyond a reasonable doubt.” ’ ” (People v. Becerrada
(2017) 2 Cal.5th 1009, 1028.)
From the evidence presented at petitioner’s trial, jurors reasonably could have
inferred petitioner supplied the guns that ultimately were used in the attempted robbery
and murder, although there was no evidence any criminal conduct was contemplated at
that time. Jurors also reasonably could have inferred petitioner knew the guns were
loaded and operable, and that Eustacio and Josh were carrying the guns, when petitioner,
Eustacio, and Josh headed for the grocery store on the night the offenses were
Jurors reasonably could have inferred petitioner agreed with the suggestion
the group “jack” somebody; was aware an armed robbery was contemplated; and gave
one of the actual killers a ride to Skeeko’s Bar, waited for a likely victim to appear, and
then acted as a getaway driver after the shooting. Jurors also reasonably could have
inferred petitioner was close enough to hear and possibly see what was going on,
although he was not at the immediate location of the killing.
On the other hand, there was no evidence the killing was planned or even
contemplated. Rather, it appears the shooting occurred in response to the victim resisting
and striking Josh. There was no evidence petitioner was involved in any planning
beyond agreeing the group should “jack” someone, after which he simply acquiesced in
whatever Candido said to do. The Attorney General posits that petitioner was older than
his confederates, and this fact reasonably supports the inference his participation in

9 Petitioner points out that although he was present when Eustacio and Josh loaded the
guns on January 14, 1996, which was after the guns had been cleaned and prior to them being
fired at the shack and in orchard, he was not present when they again loaded the firearms on
January 17, 1996, the day of the robbery. Nevertheless, the evidence showed Eustacio’s mother
purchased the ammunition at a sporting goods store. This reasonably suggests she purchased
more than a few loose bullets. Because Eustacio told petitioner that he (Eustacio) was carrying a
gun when they left the house the day of the robbery, it is reasonable to infer petitioner surmised
that gun, at least, was loaded or partially loaded.
planning the robbery was substantial. In our view, however, the conclusion drawn by the
Attorney General is merely speculative when compared to the actual trial evidence. To
be relied upon in a determination whether evidence is substantial, an inference “must be
reasonable. An inference is not reasonable if it is based only on speculation.” (People v.
Holt (1997) 15 Cal.4th 619, 669.) Similarly, a reasonable inference may not be based on
mere suspicion, imagination, supposition, surmise, conjecture, or guesswork. (People v.
Davis (2013) 57 Cal.4th 353, 360.) “ ‘[S]peculation is not evidence, less still substantial
evidence.’ ” (People v. Waidla (2000) 22 Cal.4th 690, 735.)
The Attorney General further asserts petitioner was, at most, only feet away from
the deadly encounter. According to Eustacio’s testimony at trial, however, he and
petitioner were on the street, and there were cars parked in the parking lot between their
location and where the shooting occurred. Thus, the evidence shows petitioner was in
close proximity to the shooting, but it does not show he was close enough to exercise a
restraining effect on the crime or his colleagues.10
The Attorney General says we may fairly infer petitioner knew Eustacio, with
whom he lived, was a gang member. Even if we assume such an inference is reasonable,
it says nothing about petitioner’s knowledge of his cohorts’ likelihood of killing. Indeed,
the Attorney General concedes there is no evidence in the record to show petitioner’s
confederates had a prior history of violence or that petitioner was aware of any such
history. That Eustacio was aware Candido was a gang member and knew him “from the
juvenile hall board” does not mean petitioner possessed this knowledge. Moreover, that
Eustacio and Candido had a history of delinquency—even if known to petitioner—does
not, contrary to the Attorney General’s claim, “fairly support an inference that petitioner

10 The Attorney General’s assertion petitioner “wanted a front-row seat” is so conjectural
that it is not worthy of discussion.
would have expected his armed confederates to use deadly force.” (See Banks, supra, 61
Cal.4th at pp. 810–811.)
When the evidence and inferences that reasonably can be drawn therefrom are
examined in accord with the applicable standard, it is readily apparent that, with regard to
the major participant requirement, petitioner is much closer to the Enmund end of the
continuum than he is to the Tison end. Taking into account the factors set out in Banks
and Clark, the evidence does not support a finding his participation was any more
substantial than that of Earl Enmund. To satisfy section 190.2, subdivision (d)’s
requirement of major participation, a defendant’s “personal involvement must be
substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony
murder such as Earl Enmund.” (Banks, supra, 61 Cal.4th at p. 802.)
Nor does petitioner’s conduct demonstrate reckless indifference to human life.
There is no evidence from which it reasonably can be inferred petitioner harbored a
willingness to kill, or to assist his confederates in killing, to achieve the goal of robbing
someone, or that he anticipated the potential for loss of human life beyond that usually
accompanying an armed robbery. This is not reckless enough to support a specialcircumstance
finding. (See Clark, supra, 63 Cal.4th at pp. 617–618.) Considering all the
evidence, “there appears to be nothing in the plan that one can point to that elevated the
risk to human life beyond those risks inherent in any armed robbery.” (Id. at p. 623; see
In re Miller (2017) 14 Cal.App.5th 960, 975–977 (Miller).)
Considering all the circumstances, we conclude no reasonable juror could have
found defendant aided and abetted the attempted robbery “with reckless indifference to
human life and as a major participant” (§ 190.2, subd. (d)), as those terms are set out in
Tison and explicated by Banks and Clark. (Compare In re Bennett (2018) 26 Cal.App.5th
1002, 1019–1021, 1023–1027 (Bennett) with In re Loza (2017) 10 Cal.App.5th 38, 49–54
(Loza) & People v. Medina (2016) 245 Cal.App.4th 778, 791–793.) Because the
evidence is insufficient to sustain the jury’s true finding on count 1’s special
circumstance, that finding must be vacated. Retrial of the special-circumstance allegation
is barred. (People v. Lewis (2008) 43 Cal.4th 415, 509, disapproved on another ground in
People v. Black (2014) 58 Cal.4th 912, 918–920; People v. Perez (2016) 243 Cal.App.4th
863, 882.)
In reaching this conclusion, we necessarily reject the Attorney General’s
procedural arguments for barring relief.11
The Attorney General first claims Banks (and, by extension, Clark) is not
retroactive to final judgments, because it neither created new law nor overruled existing
California Supreme Court precedent. The nonretroactivity claim was considered and
rejected in Miller, supra, 14 Cal.App.5th at pages 977 through 978. We agree with that
court, which stated:
“We begin with an overarching, dispositive point: Federal due
process guarantees require reversal of the special circumstance finding in
this case regardless of the Attorney General’s California-law-based
procedural arguments. That much is clear from the United States Supreme
Court’s decision in Fiore v. White (2001) 531 U.S. 225 (Fiore). There, the
high court considered whether Fiore was entitled to habeas corpus relief
when—after his conviction—the Pennsylvania Supreme Court interpreted
the relevant penal statute in a manner that made clear Fiore’s conduct was
not within its scope. (Id. at p. 226.) In response to a certified question
from the high court, the Pennsylvania Supreme Court stated its
interpretation of the statute ‘ “did not announce a new rule of law” ’ but
rather ‘ “merely clarified the plain language of the statute.” ’ (Id. at p. 228.)
With that answer in hand, the United States Supreme Court recognized
Fiore’s case ‘present[ed] no issue of retroactivity’ and instead raised only
the question of ‘whether Pennsylvania can, consistently with the Federal

11 We address these claims out of an abundance of caution. Were there a valid procedural
bar, we would have expected the California Supreme Court to deny the petition rather than
issuing an order to show cause returnable before this court. (See In re Robbins (1998) 18 Cal.4th
770, 814, fn. 34.)
We recognize that procedural bars assist in protecting society’s legitimate and significant
interest in the finality of its criminal judgments. (In re Reno (2012) 55 Cal.4th 428, 451 (Reno).)
This purpose loses some of its force in cases, such as petitioner’s, that may be affected by the
Legislature’s enactment, effective January 1, 2019, of section 1170.95.
Due Process Clause, convict Fiore for conduct that its criminal statute, as
properly interpreted, does not prohibit.’ (Ibid.)
“The high court’s answer, unanimously, was ‘no.’ The court held
‘the Due Process Clause of the Fourteenth Amendment forbids a State to
convict a person of a crime without proving the elements of that crime
beyond a reasonable doubt.’ (Fiore, supra, 531 U.S. at pp. 228–229, citing
Jackson v. Virginia (1979) 443 U.S. 307 and In re Winship (1970) 397 U.S.
358.) Thus, in Fiore’s words, ‘[t]he simple, inevitable conclusion is that
Fiore’s conviction fails to satisfy the Federal Constitution’s demands.’
(Fiore, supra, at p. 229.)
“The parallels to our case are exact, and the result must be identical.
Like the Pennsylvania Supreme Court’s opinion at issue in Fiore, our
Supreme Court’s opinions in Banks and Clark merely clarified the meaning
of section 190.2—Banks and Clark merely clarified the ‘major participant’
and ‘reckless indifference to human life’ principles that existed when
defendant’s conviction became final. The federal Constitution therefore
requires reversal of the special circumstance finding against defendant, and
the Attorney General’s procedural arguments can be no match for the
United States Constitution’s demands.” (Miller, supra, 14 Cal.App.5th at
pp. 977–978; see Bennett, supra, 26 Cal.App.5th at pp. 1006–1007, 1026–
1027 [granting habeas petition based on insufficient evidence of special
circumstance, under Banks and Clark, without discussion of retroactivity];
Loza, supra, 10 Cal.App.5th at pp. 41, 42, 55 [finding no need to discuss
asserted procedural bars where sufficient evidence of special circumstance
found under Banks and Clark].)
Next, the Attorney General invokes the rule of In re Lindley (1947) 29 Cal.2d 709,
723, which generally precludes using habeas corpus as a means of retrying issues of fact
or reviewing routine claims the evidence presented at trial was insufficient. (Reno, supra,
55 Cal.4th at p. 505.) Petitioner’s claim is not, however, a “routine” claim of insufficient
evidence as described in Lindley. It does not involve retrying issues of fact, but rather the
application of law to established facts. (See Miller, supra, 14 Cal.App.5th at pp. 979–
980.) Accordingly, it falls outside Lindley’s limitation. (See In re Harris (1993) 5
Cal.4th 813, 840–841; In re Zerbe (1964) 60 Cal.2d 666, 667–668.)
Last, the Attorney General contends petitioner’s claim is barred by the rule of In
re Waltreus (1965) 62 Cal.2d 218, 225, which holds that “habeas corpus ordinarily
cannot serve as a second appeal.” This is not, however, an “ordinary” situation. Our
analysis of petitioner’s claim on direct appeal did not comport with the California
Supreme Court’s subsequent analyses of the issue in Banks and Clark.
Relief is
appropriate. (See In re Jackson (1964) 61 Cal.2d 500, 505–506.)

Outcome: The petition for writ of habeas corpus is granted. The special circumstance found
true under Penal Code section 190.2, subdivision (a)(17) with respect to count 1 is vacated. The matter is remanded to the trial court with directions to resentence petitioner on that count, consistent with the views expressed in this opinion.

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