In re McDowell

Filed 10/15/20; Opinion following transfer from Supreme Court
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re DONALD WILLIAM
MCDOWELL
A157020

on Habeas Corpus. (Sonoma County
Super. Ct. No. SCR33484)

Donald McDowell and Tyson Hutchison planned and executed a
burglary and an attempted armed robbery of a drug dealer. Hutchison
shot and killed the drug dealer. Although he was not the actual killer,
McDowell was sentenced to life imprisonment without the possibility of
parole after a jury convicted him of, among other things, first degree

murder (Pen. Code, § 187, subd. (a))1 and found true robbery-murder
and burglary-murder special circumstances (§ 190.2, subds. (a)(17)(A),
(G)).
After our high court decided People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark),
McDowell filed a petition for writ of habeas corpus, challenging the
special circumstance findings. We denied relief in a published opinion
(In re McDowell (2020) 45 Cal.App.5th 921, review granted May 13,

1 Undesignated statutory references are to the Penal Code.

1
2020, S261450, judg. vacated and cause remanded Sept. 9, 2020). The
Supreme Court granted review and eventually transferred the matter
back to us with directions to vacate our opinion and reconsider the case
in light of In re Scoggins (2020) 9 Cal.5th 667 (Scoggins). Accordingly,
we have vacated our prior opinion, reviewed McDowell’s and the
Attorney General’s supplemental briefs, and now conclude, as we did
previously, that the special circumstance findings are adequately
supported.
BACKGROUND
A.
Under the first degree felony-murder rule, a defendant who
commits (or attempts to commit) robbery or burglary may be convicted
of murder for a killing committed during the felony. (Former § 189,
amended by Stats. 1999, ch. 694, § 1; People v. Chun (2009) 45 Cal.4th
1172, 1182.) However, a defendant like McDowell, who aided and
abetted the underlying felony but was not the actual killer, may only be
subject to life imprisonment without parole if the prosecution proves
the existence of special circumstances: either defendant intended to kill
(§ 190.2, subd. (c)) or aided and abetted the commission of a specified
felony “with reckless indifference to human life and as a major
participant.” (Id., subds. (a)(17), (d); see In re Ramirez (2019) 32
Cal.App.5th 384, 393.)
The “reckless indifference” and “major participant” requirements
of section 190.2, subdivision (d), codify the limits announced in Tison v.
Arizona (1987) 481 U.S. 137 (Tison). (People v. Estrada (1995) 11
Cal.4th 568, 575.) Tison held the Eighth Amendment does not prohibit
imposition of the death penalty on a defendant convicted of first degree

2
felony murder so long as the defendant was a “major participant” in the
underlying felony and acted with “reckless indifference to human life.”
(Tison, supra, 481 U.S. at p. 158 & fn. 12.) Although these standards
were developed in death penalty cases, they apply equally to cases
involving life imprisonment without the possibility of parole under
section 190.2, subdivision (d). (Banks, supra, 61 Cal.4th at p. 804.)
B.2
The victim in this case, James Meehan, was a methamphetamine
dealer. On June 9, 2002, at about 3:00 a.m., Meehan was at his Santa
Rosa residence with James L. and Micki A.
Micki responded to a knock on the door, and McDowell entered
the house. McDowell was armed with a “palm knife” — a knife
designed to be held in the palm of a hand, with the blade protruding
between the index and middle fingers. Hutchison entered the house
shortly after McDowell. Hutchison carried a small black revolver,
which he pointed at Meehan, Micki, and James, while standing behind
McDowell.
One of the two men said, “Give me your stuff.” McDowell looked
straight ahead at Meehan and said, “Where’s the shit?” When Meehan
said, “I don’t have none” or “ ‘[t]here’s nothing here,’ ” Hutchison fired a
warning shot into the floor next to Meehan. In response, James said,

2 The facts are primarily taken from this court’s unpublished
opinion in McDowell’s direct appeal. (People v. McDowell (June 2,
2009, A119754) [nonpub. opinion.].) We deny as unnecessary the
Attorney General’s request for judicial notice of the appellate record.
(See In re Reno (2012) 55 Cal.4th 428, 484 [“Petitioners need not
separately or specifically request judicial notice of all documents
connected with their past appeals”].)

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“ ‘[p]lease don’t hurt him.’ ” Meehan said, “kill me if you’re going to kill
me.” Micki grabbed a hard, plastic case containing a drill and struck
McDowell in the chest with it, knocking McDowell down. Meehan tried
to grab the gun from Hutchison. Hutchison then fired two shots at
Meehan, who, grabbing his chest and bleeding from the mouth,
stumbled into his bedroom and collapsed. McDowell and Hutchison
fled. Micki called 911 and attempted first aid. Meehan died as a result
of two gunshot wounds to his torso.
Meehan was shot only “a few seconds” or a brief “pause” after
Hutchison’s first shot into the floor. The whole incident took “[m]aybe
like a minute.”
Pamela S. testified that on the weekend of the murder, she
allowed McDowell and Hutchison to house-sit. Before she left, she told
Hutchison she kept a .22-caliber revolver in her bedroom nightstand. A
firearms examiner identified the revolver as the murder weapon.
Harry S., who lived near McDowell at the time of the crime,
testified that two days after the murder, McDowell said he and
Hutchison had gone to the victim’s home to “rip off a dealer” and “tak[e]
[his] stuff.” McDowell also said that a girl had hit him with a briefcase,
he had not known that Hutchison had a gun, and he was “stunned”
when Hutchison shot the victim.
K.F. recalled a conversation, before the murder, between
McDowell and Joe Kampmann. Kampmann said “some guy” in Santa
Rosa owed him money and that “if he didn’t have money, then [he] had
drugs.” Kampmann added, “If he didn’t want to pay up, . . . he would
be easy to take.” After the murder, Kampmann shared with K.F. a
newspaper article about a homicide in Santa Rosa. K.F. discussed the

4
article with McDowell, who told her that Hutchison shot the victim and
that someone had hit him over the head.
Charles P., who briefly lived with McDowell, recalled hearing a
conversation, before the murder, in which Kampmann, McDowell, and
others, talked about a man who had “a lot of money and drugs in [a]
safe.” Charles believed Kampmann was “angry” because the man had
“burned” him in what Charles inferred was “a dope deal gone bad.”
McDowell asked Kampmann where the man lived. After the murder,
McDowell tearfully told Charles that he had not intended to kill anyone
and that he did not know Hutchison had a gun. McDowell stated he
had only intended to “collect some money and dope” and to “[b]ully the
guy.”
A couple of days before the murder, McDowell’s former neighbor,
Sandy B., gave him a ride to Santa Rosa. They drove around a
residential neighborhood trying to find Meehan’s house, and, when they
had trouble finding it, McDowell made a phone call. At some point,
McDowell left the car for about 15 minutes. Later, after the murder,
McDowell showed Sandy a newspaper article regarding a homicide.
McDowell was upset and told Sandy that Hutchison had killed someone
when the two men had “gone back to the house.”
C.
A jury convicted McDowell of first degree murder (§ 187, subd.
(a), count one), attempted robbery (§§ 664, 211, count two), and
burglary (§ 459, count three). The jury found both the burglary-murder
and robbery-murder special circumstance allegations (§ 190.2, subd.
(a)(17)(A), (G)) true. The jury also found true allegations that a
principal was armed during the commission of these offenses (§ 12022,

5
subd. (a)(1)) and that McDowell personally used a deadly or dangerous
weapon, a knife (§ 12022, subd. (b)(1)), in the commission of attempted
robbery. McDowell was sentenced to a term of life imprisonment
without the possibility of parole for the murder and a consecutive
sentence of six years for his use of a deadly weapon and for a prior
serious felony conviction (§§ 667, subd. (a)(1), 1170.12).
D.
McDowell filed a direct appeal. However, McDowell did not
separately challenge the sufficiency of the evidence to support the
special circumstance findings. This court affirmed the judgment in its
entirety in an unpublished opinion, People v. McDowell (June 2, 2009,
A119754) [nonpub. opinion].
Approximately six years later, our Supreme Court decided, in
Banks, supra, 61 Cal.4th 788, “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” under
section 190.2, subdivisions (a)(17) and (d). (Banks at p. 794.) Banks
articulated a number of factors relevant to that determination. (Id. at
p. 803.) The following year, our Supreme Court announced related
considerations relevant to determining whether a defendant acted with
“reckless indifference to human life.” (Clark, supra, 63 Cal.4th at pp.
609-623.)
More than two years later, McDowell filed a petition for a writ of
habeas corpus in the superior court, arguing that, under Banks, the
evidence against him was insufficient to support the special
circumstance findings. After the superior court denied the petition,
McDowell, acting pro se, petitioned for habeas corpus relief in this

6
court. We ordered the Secretary of the Department of Corrections to
show cause why McDowell was not entitled to relief and appointed
counsel to represent him. We limited our order to show cause to the
Banks/Clark issue and ultimately denied the petition, concluding the
special circumstance findings were adequately supported. (In re
McDowell, supra, 45 Cal.App.5th at pp. 924, 933, review granted May
13, 2020, S261450, judg. vacated and cause remanded Sept. 9, 2020.)
E.
The California Supreme Court granted review (May 13, 2020,
S261450) and deferred further action pending consideration and
disposition of a related issue in Scoggins, supra, 9 Cal.5th 667. After
the court decided Scoggins, it transferred this case back to this court,
directing us to vacate our decision and to reconsider the cause in light
of Scoggins. McDowell and the Attorney General filed supplemental
briefing.
DISCUSSION
McDowell contends he is statutorily ineligible for life
imprisonment without the possibility of parole because the evidence
does not support the special circumstance findings. We disagree.
A.
The Attorney General contends habeas relief is procedurally
barred. A claim that could have been raised on direct appeal may
generally not be raised for the first time in a petition for writ of habeas
corpus. (In re Dixon (1953) 41 Cal.2d 756, 759.) Furthermore,
“sufficiency of the evidence claims are generally not cognizable on
habeas corpus.” (Scoggins, supra, 9 Cal.5th at p. 673.) An exception to
these rules applies when a new decision “clarifies the kind of conduct

7
proscribed by a statute” and shows the court has acted in excess of its
jurisdiction. (Id. at pp. 673-674.) A defendant in McDowell’s position is
entitled to habeas relief “ ‘ “if there is no material dispute as to the
facts relating to his conviction and if it appears that the statute under
which he was convicted did not prohibit his conduct.” ’ ” (Id. at p. 674.)
Accordingly, we consider whether the record demonstrates that
McDowell’s conduct is proscribed by the special circumstances statute
(§ 190.2, subd. (d)), as construed in Banks, Clark, and Scoggins.
(Scoggins, supra, 9 Cal.5th at pp. 674, 676.) “If it is not, then the trial
court acted in excess of its jurisdiction when it sentenced [McDowell] to
life imprisonment without the possibility of parole, and habeas corpus
relief would be available.” (Id. at p. 674.)
Our review of the record is deferential. The question is “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]
allegation beyond a reasonable doubt.’ [Citations] . . . 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.” (Clark, supra, 63 Cal.4th at p. 610.)
B.
The Banks court noted that felony-murder participants may be
placed on a culpability spectrum. (Banks, supra, 61 Cal.4th at pp. 794,
800, 802, 811.) One end of the spectrum is illustrated by Enmund v.
Florida (1982) 458 U.S. 782: a getaway driver who was “ ‘not on the
scene, who neither intended to kill nor was found to have had any
culpable mental state,’ ” and who is not eligible for the death penalty or

8
life without parole. (Banks, supra, 61 Cal.4th at p. 800, citing Tison,
supra, 481 U.S. at p. 149.) At the other extreme is the actual killer or
an aider and abettor who intended to kill, who is eligible for such
punishment. (Banks, supra, at p. 800, citing Tison at p. 150.)
“Somewhere between them . . . lies the constitutional minimum for
death eligibility.” (Banks, supra, at p. 802.)
To aid the determination of where to place a particular defendant
on that continuum, Banks provided a list of nonexclusive factors: “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?” (Banks, supra, 61 Cal.4th at p. 803, fn.
omitted.) “No one of these considerations is necessary, nor is any one of
them necessarily sufficient.” (Ibid.)
Applying those factors, the Banks court concluded there was
insufficient evidence that the appealing defendant was a major
participant. (Banks, supra, 61 Cal.4th at pp. 805-807.) He was not at
the scene when an associate shot a guard during a botched robbery of a
marijuana dispensary. (Id. at p. 795.) Instead, like the defendant in
Enmund v. Florida, supra, 458 U.S. at p. 784, the defendant in Banks
was “no more than a getaway driver.” (Banks, supra, at pp. 795-796,
804-805.) No evidence was introduced about his role in planning the

9
robbery or in procuring weapons, and, although he and two accomplices
were gang members, no evidence was presented that any of them had
previously committed a violent crime. (Id. at pp. 795-796, 804-805.)
Having dropped his accomplices off and waited a few blocks away
(ibid.), the defendant was not present at the scene of the shooting and
thus did not have “any immediate role” in instigating it. (Id. at p. 805.)
The Banks court also overruled earlier authorities by holding that a
defendant’s knowledge that accomplices were armed in committing
robbery is insufficient, by itself, to show he or she acted with reckless
indifference to human life. (Id. at pp. 807-811, 809 & fns. 8-9.)
In Clark, supra, 63 Cal.4th 522, the defendant was more than
just a getaway driver. He planned and orchestrated an after-hours
burglary and attempted robbery of a computer store. But he was in a
car in the store’s parking lot when an accomplice shot the mother of an
employee who unexpectedly arrived during the attempted robbery. (Id.
at pp. 536-538, 612-614.)
The Clark court deemed it unnecessary to decide whether the
defendant was a major participant because the evidence was
insufficient to show the defendant had acted with reckless indifference
to human life. (Clark, supra, 63 Cal.4th at p. 614.) The court noted
that the two elements overlap: “ ‘the greater the defendant’s
participation in the felony murder, the more likely that he or she acted
with reckless indifference to human life.’ ” (Id. at p. 615.) The court
applied a slightly modified version of the Banks factors to assess mens
rea, including (1) the defendant’s knowledge that weapons would be
used and/or his personal use of weapons; (2) the defendant’s physical
presence at the scene and his opportunity to restrain the killer or aid

10
the victim; (3) the duration of the felony; (4) the defendant’s knowledge
of his accomplice’s propensity to kill; and (5) the defendant’s efforts to
minimize the risk of violence in the commission of the felony. (Id. at
pp. 618-622.)
The Clark defendant did not carry a weapon. An accomplice
carried a gun that was supposed to be unloaded, but, unbeknownst to
the defendant, the accomplice had loaded it with a single bullet.
(Clark, supra, 63 Cal.4th at pp. 537, 612-613, 618-619, 621-622.) The
defendant was also at the far end of the parking lot at the time of the
shooting, near the store’s loading doors, and thus had no chance to
intervene or prevent the shooting. (Id. at pp. 537, 619-620.) There was
no evidence the defendant knew the shooter had a propensity for
violence or that the defendant could predict the use of lethal force by
having an opportunity to observe his accomplice’s demeanor
immediately before the shooting. (Id. at p. 621.) Finally, the robbery
had been planned for after closing time, and the defendant expected his
accomplice would minimize employee contact by handcuffing employees
in a bathroom. (Id. at pp. 537, 612-613, 620-621.) The court concluded
there was “nothing in the plan that . . . elevated the risk to human life
beyond those risks inherent in any armed robbery.” (Id. at p. 623.)
In Scoggins, supra, 9 Cal.5th 667, the defendant believed he had
been swindled by the victim and sought revenge by planning an
unarmed beating, to be committed by several of the defendant’s
friends—who would also get the defendant’s money back. Once the
plan was set in motion, however, one of the defendant’s friends pulled
out a gun and shot the victim. The defendant had not been present
because he feared the victim would recognize him. Instead, the

11
defendant waited at a nearby gas station, where his view of the crime
scene was blocked. He arrived at the scene after the shooting, checked
to see if the victim was breathing, and cooperated with police.
(Scoggins, supra, 9 Cal.5th at pp. 671-672, 678-679.)
Scoggins held that the special circumstance finding must be
reversed because the defendant did not act with reckless indifference to
human life. (Scoggins, supra, 9 Cal.5th at p. 671.) In reaching that
conclusion, the court emphasized that determining culpability under
the special circumstances statute “requires a fact-intensive,
individualized inquiry” (id. at p. 683) and reiterated the Clark mens rea
factors: “Did the defendant use or know that a gun would be used
during the felony? How many weapons were ultimately used? Was the
defendant physically present at the crime? Did he or she have the
opportunity to restrain the crime or aid the victim? What was the
duration of the interaction between the perpetrators of the felony and
the victims? What was the defendant’s knowledge of his or her
confederate’s propensity for violence or likelihood of using lethal force?
What efforts did the defendant make to minimize the risks of violence
during the felony?” (Id. at p. 677.)
The court explained that the Scoggins defendant was less
culpable than the defendant in Clark given, in particular, the
defendant’s absence from the crime scene, as well as his plan, which did
not involve shooting the victim or the use of any weapons. (Scoggins,
supra, 9 Cal.5th at pp. 677-678.) Combined with the short duration of
the interaction between the victim and the perpetrators (lasting a few
seconds to no more than five minutes), the absence of evidence that the
defendant knew his friends were likely to use lethal force, and the

12
defendant’s minimization of the risk of injury—by planning an
unarmed assault, during daylight, in a public place (where the presence
of witnesses may discourage violence)—the evidence was insufficient to
demonstrate reckless indifference to human life. (Id. at pp. 671, 680-
681, 683.)
C.
We are not persuaded that McDowell’s “major participant”
finding is unsupported. To be a major participant, “a defendant’s
personal involvement must be substantial, greater than the actions of
an ordinary aider and abettor to an ordinary felony murder.” (Banks,
supra, 61 Cal.App.4th at p. 802.)
This case is different from McDowell’s cited cases in several key
respects. First, unlike the defendants in Enmund and Banks,
McDowell was instrumental in planning and directly perpetrating the
burglary and attempted robbery that led to Meehan’s death. (Enmund
v. Florida, supra, 458 U.S. at pp. 784, 795; Banks, supra, 61 Cal.4th at
pp. 795-796, 804-805.) The evidence suggests McDowell helped plan
the robbery after hearing Kampmann talk of being “burned” by a drug
dealer who had money and drugs in a safe. In particular, McDowell
asked where the dealer lived and then checked out Meehan’s house
before the burglary. On the day of the crimes, McDowell knocked on
Meehan’s door and entered first, brandishing a knife to facilitate
Hutchison’s entrance, and demanded, “[W]here is the shit?”
Although there is no evidence McDowell supplied the murder
weapon, McDowell was himself armed with, and brandished, a deadly
or dangerous weapon. Moreover, McDowell’s decision to arm himself
with a palm knife should be viewed in combination with the

13
particularly risky crime that he planned and led—a home invasion
robbery of a methamphetamine dealer. This was not a garden-variety
robbery. (See Clark, supra, 63 Cal.4th at p.617 & fn. 74.) The potential
for it to turn violent was obvious.
In further contrast with the authorities McDowell relies on,
McDowell was present at the scene of the shooting and had an
opportunity to restrain Hutchison, or otherwise intervene on Meehan’s
behalf, either when he entered Meehan’s house and realized they would
be outnumbered or, at the very least, after Hutchison fired the warning
shot. (Cf. Banks, supra, 61 Cal.4th at p. 795; Clark, supra, 63 Cal.4th
at pp. 619-620; In re Ramirez, supra, 32 Cal.App.5th at p. 405
[defendant was not “close enough to exercise a restraining effect”]; In re
Bennett (2018) 26 Cal.App.5th 1002, 1023, 1025 [“[defendant] was
across the street in the parking lot when the shooting took place, and
there was no evidence he . . . had the opportunity to stop the
shooting”].) If lethal force is not part of the plan, “absence from the
scene may significantly diminish culpability for death.” (Banks, supra,
61 Cal.4th at p. 803, fn. 5.) “As a corollary, there may be significantly
greater culpability for accomplices who are present.” (In re Loza (2017)
10 Cal.App.5th 38, 50 (Loza); accord, Tison, supra, 481 U.S. at p. 158.)
McDowell attempts to minimize his opportunity to intervene by
pointing out that he was knocked to the ground during the seconds that
passed between the first and second shots. We agree that the
opportunity was brief, but we reject McDowell’s argument that he had
no time to say or do something. After Hutchison fired the warning shot
into the floor, there was enough time for others to take action: James
implored the intruders not to hurt Meehan, Meehan said, “kill me if

14
you are going to kill me,” and both Micki and Meehan physically fought
back.
Considering these circumstances in total, we conclude substantial
evidence supports the finding McDowell was a major participant in the
felony that led to Meehan’s death.
D.
Although McDowell presents a closer question on “reckless
indifference to human life,” we conclude the record also supports that
finding.
1.
Reckless indifference requires a defendant to be “ ‘ “subjectively
aware that his or her participation in the felony involved a grave risk of
death.” ’ ” (Banks, supra, 61 Cal.4th at p. 807, second italics added.)
“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.” (Id. at p. 808.)
“[A]lthough 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. . . . [A]
defendant’s good faith but unreasonable belief that he or she was not
posing a risk to human life in pursuing the felony does not suffice to
foreclose a determination of reckless indifference to human life.”
(Clark, supra, 63 Cal.4th at p. 622.) Jurors can infer the defendant’s
subjective awareness from the defendants’ actions. (People v. Mora
(1995) 39 Cal.App.4th 607, 616-617.)

15
 2.
Turning to the Scoggins/Clark factors, we conclude that
McDowell is more culpable than the defendants in Scoggins and Clark.
First, even accepting McDowell’s self-serving statements after
the crime that he did not know Hutchison had a gun, it is nonetheless
true that McDowell armed himself with a deadly weapon—a palm
knife—and brandished it during the robbery. Indeed, if he truly did not
know that Hutchison was armed, the inference is stronger that
McDowell was prepared to use his knife. Furthermore, McDowell
knew, by no later than the warning shot, that Hutchison was both
carrying and willing to fire a gun. Thus, in contrast to Scoggins and
Clark, where the defendants were unarmed, were not present at the
scene, and did not know that their accomplices were either carrying a
gun (Scoggins) or had loaded a gun that was supposed to be unloaded
(Clark) until it was too late, the first Scoggins/Clark factor cuts
against McDowell’s position. (See Scoggins, supra, 9 Cal.5th at pp.
671-672, 677-679, 682-683; Clark, supra, 63 Cal.4th at p. 618.)
Second, McDowell’s plan for the robbery posed obvious risks of
lethal violence, and he made no attempt to lessen the risks. Our
Supreme Court has emphasized that the planning of or participation in
a felony, even one in which the perpetrators were armed, is not by itself
sufficient to show reckless indifference. (Scoggins, supra, 9 Cal.5th at
p. 682; Clark, supra, 63 Cal.4th at pp. 613-623.) Here, however,
McDowell was not only armed with a knife and (at some point) knew
Hutchison was armed with and willing to fire a gun, but he also chose
to plan and lead a crime with a particularly high risk of violence—a
home invasion robbery of a drug dealer.

16
 We cannot agree with McDowell that he attempted to minimize
the risk of violence. To the contrary, it was foreseeable that customers
or others could be present, even early in the morning, and that either
the dealer himself or his customers might be armed or high and thus
more likely to resist. Moreover, when McDowell first entered the
house, it was immediately obvious that he and Hutchison were
outnumbered, increasing the chances of resistance. Yet McDowell
chose to proceed. While competing inferences are possible, a reasonable
jury could infer that McDowell was aware that the situation could
quickly turn deadly. (See People v. Gonzalez (2016) 246 Cal.App.4th
1358, 1364, 1385, affd. on other grounds in People v. Gonzalez (2018) 5
Cal.5th 186 [defendant proposed robbing victim, lured victim to scene
where she remained, informed accomplices that victim was drug dealer,
who had been violent in past, and did not render aid].)
In contrast, the defendants in Scoggins and Clark planned more
ordinary robberies and took steps to minimize the risk of violence. In
Scoggins, the defendant’s plan called for his multiple accomplices to rob
a single victim in a public parking lot in broad daylight, using no
weapons. (Scoggins, supra, 9 Cal.5th at pp. 671-672, 683.) In Clark,
the defendant’s plan was to rob a retail store, after business hours
when few employees would be present, using a single unloaded gun.
Neither plan “elevated the risk to human life beyond those risks
inherent in any armed robbery.” (Clark, supra, 63 Cal.4th at p. 623;
see Scoggins, supra, 9 Cal.5th at pp. 682-683.)
Third, as we discussed above, McDowell was present when the
violence ensued but took no steps to prevent it. In contrast to the
defendants in both Scoggins and Clark, McDowell was present at the

17
scene and could observe the shooter’s actions “just before the shooting
that would have indicated that [the shooter] was likely to engage in
lethal violence.” (Clark, supra, 63 Cal.4th at p. 621; accord, Scoggins,
supra, 9 Cal.5th at pp. 671-672, 678-679.) Hutchison’s warning shot
certainly qualifies. The standoff then grew more fraught when Meehan
responded to the warning shot by saying, “kill me if you are going to
kill me.” In this moment, there was a brief but critical opportunity for
McDowell to say or do something to deescalate the situation. Instead,
he remained silent as others (James, Meehan, and Micki) verbally and
physically intervened. Jurors could have reasonably concluded
McDowell ignored chances to minimize the risks of lethal violence that
were inherent in his plan and that materialized as he carried it out.
(See Loza, supra, 10 Cal.App.5th at pp. 51, 53 [defendant had “time to
observe and react before the murder” because he heard accomplice
threaten to shoot and count to five].)
Although McDowell can be faulted for taking no steps to lessen
the risk of violence, we are mindful that the events unfolded quickly
after he and Hutchison entered Meehan’s home. A defendant is more
culpable when he does nothing to avoid violence despite having time to
reflect and consider his options. Nor was there any evidence that
McDowell knew Hutchison had a violent past. (See Scoggins, supra, 9
Cal.5th at pp. 681-682.) With respect to aiding Meehan after the
shooting, McDowell’s flight does not cut one way or the other given the
possibility that James and Micki would summon aid, which in fact they
did. (See Clark, supra, 63 Cal.4th at p. 620.)
Although this case may be close to the line, sufficient evidence
supports the jury’s conclusion McDowell acted with reckless

18
indifference to human life. McDowell’s culpability reflects the fact that
he armed himself with a knife, planned and carried out a crime with
obvious risks of lethal violence, and was present at the scene but took
no steps to prevent the killing. (See Banks, supra, 61 Cal.4th at p. 801
[a court “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”]; People v. Murillo (2020) 54
Cal.App.5th 160, 172 [in “cases in which a court has overturned a
special circumstance finding, the defendant either was not present at
the scene of the killing, or at least was not capable of preventing his
cohort from acting”].) Because the special circumstance findings are
adequately supported and habeas relief is not appropriate, we need not
address the Attorney General’s additional arguments that the petition
is procedurally barred. (See Loza, supra, 10 Cal.App.5th at pp. 41-42,
55.)
DISPOSITION
The opinion previously filed, In re McDowell (Feb. 26, 2020, No.
A157020) 45 Cal.App.5th 921, is vacated. The petition for writ of
habeas corpus is denied.

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 _________________________
BURNS, J.

WE CONCUR:

_________________________
JONES, ACTING P. J.*

_________________________
SIMONS, J.

A157020

* Retired Presiding Justice of the Court of Appeal, First Appellate
District, Division Five, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.

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Superior Court of Sonoma County, No. SCR33484, Hon. Rene A.
Chouteau

Donald McDowell, in pro. per., and Victor J. Morse, By Appointment of
the First District Court of Appeal under the First District Appellate
Project Independent Case System, for Petitioner.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney
General, Donna M. Provenzano, Supervising Deputy Attorney General,
and David H. Rose, Deputy Attorney General, for Respondent.

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