Filed 4/29/21 P. v. Sibley CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B296020
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA051229)
v.
CYRIL DONSHANE SIBLEY,
Defendant and Appellant.
____________________________________
B300098
In re CYRIL DONSHANE SIBLEY,
on Habeas Corpus.
APPEAL from an order of the Superior Court of Los
Angeles County, Tammy Chung Ryu, Judge. Reversed and
remanded with directions.
PETITION for writ of habeas corpus, Superior Court of Los
Angeles County, Bob S. Bowers, Jr., Judge. Granted.
Cynthia Grimm, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez, Michael R. Johnsen and
David E. Madeo, Deputy Attorneys General, for Plaintiff and
Respondent.
________________________
In December 1994, petitioner and appellant Cyril
Donshane Sibley participated in a robbery-murder during which
one of his accomplices—his twin brother—shot and killed the
victim, Joaquin Arce. In 2000, a jury found Sibley guilty of first
degree murder, and also found true the special circumstance
allegation that the murder was committed during commission of
a robbery. The trial court sentenced Sibley to life in prison
without the possibility of parole (LWOP). Such a sentence is
constitutionally permissible for a non-killer accomplice only if he
was a direct aider and abettor who acted with the intent to kill or
acted as a major participant in the underlying offense with
reckless indifference to human life.
Years after Sibley’s conviction, our California Supreme
Court clarified the meaning of “major participant” and “reckless
indifference to human life.” (People v. Banks (2015) 61 Cal.4th
788 (Banks); People v. Clark (2016) 63 Cal.4th 522 (Clark).) Still
later, the Legislature enacted Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437), which, among other things, limited
accomplice liability under the felony-murder rule. Senate Bill
1437 also created a procedure by which persons convicted of
murder under a now-invalid application of the felony-murder rule
2
could petition for vacation of their murder convictions. (Pen.
Code, § 1170.95.)1
In 2019, Sibley petitioned in the trial court for vacation of
his murder conviction pursuant to Senate Bill 1437. The trial
court denied his petition, and he appeals. He has also filed a
petition for writ of habeas corpus, in which he contends that the
jury’s special circumstance finding must be reversed because the
evidence is insufficient to prove he was a major participant who
acted with reckless indifference, as those terms have been
clarified by Banks and Clark. We issued an order to show cause
(OSC) on the writ petition, and ordered that Sibley’s habeas
petition and his appeal be considered together.
We conclude that, in light of Banks and Clark, the trial
evidence was insufficient to prove Sibley’s conduct supported the
robbery-murder special circumstance. Consequently, his section
1170.95 petition must also be granted.
FACTUAL AND PROCEDURAL BACKGROUND2
1. The crimes
On December 18, 1994, at approximately 8:00 p.m.,
Joaquin Arce, his wife Maria Porcayo, and their two-month-old
baby were sitting in Arce’s pickup truck, eating their dinner, at a
Burger King restaurant parking lot in Los Angeles. The baby
was seated between Arce and Porcayo, in a car seat. Arce’s truck
was outfitted with gold-plated tire rims.
1
All further undesignated statutory references are to the
Penal Code.
2
At Sibley’s request, we have taken judicial notice of the
record in his direct appeal, including our unpublished opinion.
(Evid. Code, §§ 451–453.)
3
Sibley, his twin brother Tyril Sibley,3 codefendant Jimmy
Ray Smith, and Lavell Hayes, who were all members of the
Athens Park Bloods criminal street gang, went to the Burger
King and banged on the door. However, the restaurant had just
closed so the employees could attend a holiday party. Hayes left
the scene at that point.
The testimony of three eyewitnesses or their statements to
police, taken together, showed the following. Smith and the
Sibley twins approached Arce’s truck, with the Sibleys going to
the driver’s side and Smith going to the passenger side. Smith
pounded on the passenger side of the truck; one or both of the
Sibley twins pounded on the driver’s side. Arce rolled his window
partially down and asked what the men wanted. Both Sibley
brothers pushed their arms through the vehicle’s window, struck
Arce, and tried to open the door. Arce tried to drive away, but
the truck’s engine stalled after he went a short distance. Sibley
tripped and fell as Arce began backing out, but he got up,
returned to the truck, and resumed striking Arce. Tyril pushed a
gun into the truck’s cab and shot Arce at point blank range. Arce
gasped, “They got me,” and “I can’t make it.” The Sibley twins
pulled Arce from the truck and kicked him as he lay on the
ground. Smith moved to the driver’s side of the truck with the
other two assailants, and all three stood over Arce and stared at
him as he lay on the ground.
Meanwhile, Porcayo grabbed the baby, exited the vehicle,
and screamed at the assailants to take the truck. The trio did so,
with Smith driving. As they were driving off, Arce stood up,
3
For ease of reference, we hereinafter refer to Tyril Sibley by
his first name.
4
raised his hands in the air, and walked toward Porcayo.
Assuming Arce was okay, Porcayo ran to the Burger King’s
outside payphones to call for help. However, Arce then fell to the
ground, and never got up again. The gunshot was a contact
wound that entered Arce’s left upper arm and travelled into his
chest. He died of his injuries.
Approximately a half hour after the shooting and robbery, a
witness saw a group of men standing near the stolen pickup
truck in an apartment complex parking lot located approximately
a mile from the Burger King. The Sibleys and Hayes were in the
group. Police thereafter found Arce’s truck in the lot, with the
gold tire rims removed and in the truck bed. On the front seat
was a baby blanket that had been damaged by a bullet. A
fingerprint found in the car was identified as Smith’s. A shoe
print in a planter near the truck matched a pair of shoes
belonging to Hayes. The bullet, the gun, and the baby’s car seat
were never recovered. An eyewitness who identified Sibley told a
detective that he appeared to be under the influence of drugs or
alcohol. Urine samples taken from the twins the night of the
shooting tested positive for the presence of PCP.
Sibley presented an alibi defense.
Prior to trial, Tyril was killed in an unrelated shooting.
2. Convictions and appeal
A jury found Smith and Sibley guilty of the first degree
murder of Arce, with true findings on the allegation that a
principal was armed and the special circumstance allegation that
the murder was committed while defendants were engaged in the
commission of a robbery. (§§ 187, subd. (a), 12022, subd. (a)(1),
190.2, subd. (a)(17).) It further found both defendants guilty of
the carjackings of Arce and Porcayo (§ 215, subd. (a)) and the
5
second degree robbery of Arce (§ 211), with principal-armed
enhancements. (§12022, subd. (a)(1).) Additionally, the jury
found Sibley guilty of the second degree robbery of Porcayo. The
jury was instructed on both direct aiding and abetting principles,
and felony murder.
The trial court sentenced Sibley to LWOP, plus one year.
We affirmed Sibley’s convictions in an unpublished opinion
issued in 2002. (People v. Smith et al. (Sept. 30, 2002, B144995)
[nonpub. opn.].) We concluded that the trial court committed
instructional error by failing to instruct that if Smith and Sibley
were not the actual shooters, the jury could find the section 190.2
special circumstance true only if it concluded that they intended
Arce be killed, or if they acted as major participants in the
robbery, with reckless indifference to human life. However, we
found the error harmless beyond a reasonable doubt, because
there was overwhelming evidence to prove these elements.
(People v. Smith et al., supra, B144995.) The California Supreme
Court denied review in December 2002.
3. Sibley’s section 1170.95 petition
On January 14, 2019, Sibley filed a petition for
resentencing pursuant to section 1170.95. Using a preprinted
form, he checked boxes stating that a charging document had
been filed against him allowing the prosecution to proceed under
a felony-murder theory or the natural and probable consequences
doctrine; he was not the actual killer; he was not a major
participant in the felony or did not act with reckless indifference
to human life; and he could not now be convicted of first or second
degree murder in light of changes to the law wrought by Senate
Bill 1437. He also checked a box requesting the appointment of
counsel.
6
On February 8, 2019, the trial court denied the petition.
Sibley was not present and was not represented by counsel. The
court’s order stated that it had reviewed the court file. After
describing the requirements of section 1170.95 and the trial
evidence, the court stated: “The Court of Appeal[ ] found that
there was overwhelming evidence that the petitioner acted as a
major participant in the offenses and with reckless indifference to
human life. The Court of Appeal[’s] decision and findings are
controlling upon this court. [¶] Therefore, petitioner is ineligible
for resentencing under Penal Code section 1170.95, and the
petition is denied.”
Sibley filed a timely notice of appeal.
4. Sibley’s petition for writ of habeas corpus
Thereafter, Sibley also filed a petition for writ of habeas
corpus in this court. Therein, he argues that this court’s earlier
assessment of the evidence in his direct appeal must be
reconsidered in light of Banks and Clark. Under those
authorities, he urges, the trial evidence failed to support the
special circumstance finding because it was insufficient to prove
he acted as a major participant in the robbery, with reckless
indifference to human life. He seeks reversal of the special
circumstance finding and his LWOP sentence. We issued an OSC
directing respondent, the Secretary of the Department of
Corrections and Rehabilitation, to show cause why Sibley is not
entitled to the requested relief.
DISCUSSION
1. The habeas petition
Because resolution of Sibley’s writ petition is dispositive of
his direct appeal, we address it first.
7
a. The special circumstance statute, the Enmund-
Tison continuum, and Banks and Clark
Section 190.2 “identifies the circumstances under which
murderers and accomplices can be punished by death or life
imprisonment without parole. Participating in a murder during
a robbery is one of these circumstances. (§ 190.2,
subd. (a)(17)(A).) For defendants who did not kill and lacked the
intent to kill, section 190.2, subdivision (d) permits such
punishment only if they acted ‘with reckless indifference to
human life and as a major participant’ [in] a qualifying felony
like robbery.” (People v. Douglas (2020) 56 Cal.App.5th 1, 7; In re
Scoggins (2020) 9 Cal.5th 667, 674 (Scoggins).) The statute thus
imposes both an actus reus requirement (major participation)
and a mens rea requirement (reckless indifference to human life).
(Scoggins, at p. 674.) Section 190.2, subdivision (d) codifies the
holdings of Enmund v. Florida (1982) 458 U.S. 782 (Enmund)
and Tison v. Arizona (1987) 481 U.S. 137 (Tison), which brought
California law “into conformity with prevailing Eighth
Amendment doctrine.” (In re Ramirez (2019) 32 Cal.App.5th 384,
393; Clark, supra, 63 Cal.4th at p. 609; People v. Estrada (1995)
11 Cal.4th 568, 575; In re McDowell (2020) 55 Cal.App.5th 999,
1004–1005.)4
Enmund held that the death penalty could not
constitutionally be imposed on an armed robbery getaway driver
4
“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).” (In re McDowell, supra, 55 Cal.App.5th at pp. 1004–1005;
Banks, supra, 61 Cal.4th at p. 804.)
8
who was a minor participant in the crime, was not present when
the murder was committed, and had no intent to kill or any
culpable mental state. (Enmund, supra, 458 U.S. at pp. 798, 801;
Scoggins, supra, 9 Cal.5th at p. 675.)
Tison, in contrast, did not preclude imposition of the death
penalty for two defendants, brothers who had helped their father
and his cellmate—both convicted murderers—escape from prison.
The brothers locked up the prison guards and armed the two
prisoners during the escape. (Tison, supra, 481 U.S. at p. 139.) A
few days later, the group got a flat tire. One of the brothers
flagged down a passing car for help. The group then kidnapped
at gunpoint the family of four that was in the car, robbed them,
and drove them into the desert. The Tisons’ father and his
cellmate debated whether to kill the family. The sons stood by
while the father and cellmate shot the victims repeatedly. The
perpetrators left the family—which included a toddler and a
teenager—to die in the desert, and drove off in the family’s car.
(Id. at pp. 139–141.) Tison held the Eighth Amendment does not
prohibit imposition of the death penalty on a nonkiller who
lacked the intent to kill, but whose “participation [in the crime] is
major and whose mental state is one of reckless indifference to
the value of human life.” (Id. at pp. 152, 157–158.)
Enmund and Tison illustrate the constitutional limits for
punishing accomplices to felony murder and establish a
“ ‘spectrum of culpability,’ ” with felony murderers who “ ‘actually
killed, attempted to kill, or intended to kill’ ” at one end, and
minor actors who were not present on the scene and neither
intended to kill nor had any culpable mental state, at the other.
(Scoggins, supra, 9 Cal.5th at p. 675; Banks, supra, 61 Cal.4th at
pp. 794, 800; In re Loza (2017) 10 Cal.App.5th 38, 46.)
9
“Somewhere between them, at conduct less egregious than the
Tisons’ but more culpable than . . . Enmund’s, lies the
constitutional minimum” required for the imposition of a
sentence of death or life without the possibility of parole. (Banks,
at p. 802.) Tison and Enmund did not establish a ceiling or a
floor for determining when an aider and abettor is eligible for
such a sentence, however. The fact a particular defendant
appears more culpable than Enmund does not automatically
make him death eligible; conversely, neither must a defendant be
as culpable as the Tison brothers in order for section 190.2,
subdivision (d) to apply. The question is one of degree. (In re
Miller (2017) 14 Cal.App.5th 960, 974, fn. 4; In re Bennett (2018)
26 Cal.App.5th 1002, 1014, fn. 4.)
In Banks and Clark, our state Supreme Court clarified the
meaning of the “major participant” and “reckless indifference to
human life” requirements. Banks considered “under what
circumstances an accomplice who lacks the intent to kill may
qualify as a major participant[.]” (Banks, supra, 61 Cal.4th at
p. 794.) The court listed various factors that should be
considered in making that determination: “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?” (Id. at p. 803, fn. omitted.)
10
Banks found insufficient evidence to show the defendant
there—a getaway driver for an armed robbery—was a major
participant or acted with reckless indifference. (Banks, supra, 61
Cal.4th at pp. 805, 807–808.) No evidence established his role in
planning the robbery or procuring the weapons; during the
robbery and murder he was absent from the scene, sitting in a
car and waiting; and no evidence showed he had any role in
instigating the shooting, or could have prevented it. (Id. at
pp. 805–807.) He was “no more than a getaway driver,” like
Enmund. (Id. at p. 805.)
The following year, in Clark, the court turned its attention
to the “reckless indifference” determination. (Clark, supra, 63
Cal.4th at pp. 610–623.) Reckless indifference to human life is
“ ‘implicit in knowingly engaging in criminal activities known to
carry a grave risk of death.’ [Citation.]” (Clark, at p. 616,
quoting Tison, supra, 481 U.S. at p. 157.) 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.” (Clark, at p. 617.)
Recklessness has both a subjective and an objective component.
Subjectively, the defendant must consciously disregard risks
known to him. Objectively, recklessness is determined by “what
‘a law-abiding person would observe in the actor’s situation,’ ”
that is, whether defendant’s conduct “ ‘involved a gross deviation
from the standard of conduct that a law-abiding person in the
actor’s situation would observe.’ [Citation.]” (Ibid.) The fact a
robbery involved a gun or carried a risk of death is insufficient,
by itself, to support a finding of reckless indifference. (Id. at
pp. 617–618; see Scoggins, supra, 9 Cal.5th at p. 677 [“ ‘the fact a
participant [or planner of] an armed robbery could anticipate
11
lethal force might be used’ is not sufficient to establish reckless
indifference to human life.” ’].)
Clark, like Banks, listed various factors to be considered
when determining whether reckless indifference existed: “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?” (Scoggins,
supra, 9 Cal.5th at p. 677 [listing factors set forth in Clark,
supra, 63 Cal.4th at pp. 618–623].)
Based on these factors, Clark concluded that the defendant
there did not act with reckless indifference to human life. (Clark,
supra, 63 Cal.4th at p. 623.) The Clark defendant was the
“mastermind” who planned and organized a computer store
robbery, and waited in a parking lot across from the store while
his accomplices carried it out. (Id. at pp. 612, 619.) His plan
called for the robbery to take place after the store closed, when
there would be fewer people present, for any remaining
employees to be handcuffed, and for the use of a single, unloaded
gun. (Id. at pp. 613, 620–622.) However, during the robbery the
mother of one of the employees—who had come to pick him up
from work—entered the store, surprising the robbers, and Clark’s
accomplice shot her. (Id. at p. 539.) As police cars arrived, Clark
fled the scene, leaving the shooter behind. Clark concluded that
the defendant—who was not armed, was not physically present in
12
the store when the shooting occurred, did not have the intent to
kill, and attempted to minimize the likelihood of violence by
timing the robbery for a time when fewer people would be present
and use of an unloaded gun—did not act with reckless
indifference to human life. (Id. at pp. 611, 618–623; Scoggins,
supra, 9 Cal.5th at p. 676.)
Most recently, our Supreme Court considered the reckless
indifference inquiry in Scoggins, supra, 9 Cal.5th 667. Scoggins
found an insufficient showing of reckless indifference where the
defendant planned an unarmed assault and robbery, in which one
of his accomplices deviated from the contemplated plan and
unexpectedly killed the victim. (Id. at p. 671.) There, the
defendant was swindled by the victim in regard to a sale of
television sets. To exact revenge, Scoggins recruited two close
friends to ambush the victim and “ ‘beat the shit’ ” out of him,
while Scoggins waited at a nearby gas station. (Id. at pp. 671,
678.) As planned, the encounter with the victim occurred in
daylight, in a strip mall parking lot. When the victim arrived,
one of the friends pulled out a gun and shot him. (Id. at p. 672.)
Scoggins was not present at the scene of the murder, was not in a
position to restrain his accomplices, did not know a gun would be
used or plan that the victim would be killed, attempted to
minimize the risk of death by ordering the assault to occur in a
public place in broad daylight, and acted ambiguously after the
shooting. (Id. at pp. 678–683.)
b. Scope of review
A defendant whose special circumstance determination
predated Banks and Clark may challenge the sufficiency of the
evidence of the finding by means of a habeas corpus petition.
(Scoggins, supra, 9 Cal.5th at pp. 673–674.) “Where a decision
13
clarifies the kind of conduct proscribed by a statute, a defendant
whose conviction became final before that decision ‘is entitled to
post-conviction relief upon a showing that his [or her] conduct
was not prohibited by the statute’ as construed in the decision.
[Citation.] ‘In such circumstances, it is settled that finality for
purposes of appeal is no bar to relief, and that habeas corpus or
other appropriate extraordinary remedy will lie to rectify the
error[.]’ ” (Ibid.)
“When a defendant seeks habeas corpus relief, the
underlying judgment is presumed valid,” (In re Bennett, supra,
26 Cal.App.5th at p. 1018), and we view the facts favorably to the
prosecution. (In re Parrish (2020) 58 Cal.App.5th 539, 541.) “In
a habeas corpus challenge to the sufficiency of the evidence to
support a special circumstance finding, the ‘standard of review
. . . 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 allegation beyond a reasonable doubt.”
[Citations.] The standard is the same under the state and federal
due process clauses. [Citation.] 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.’ ” (In re Bennett, at p. 1018; In re McDowell,
supra, 55 Cal.App.5th at p. 1008; In re Miller, supra, 14
Cal.App.5th at p. 974; In re Loza, supra, 10 Cal.App.5th at p. 46.)
Determination of whether the evidence demonstrates
reckless indifference and major participation is a “fact-intensive
and individualized inquiry” (In re Parrish, supra, 58 Cal.App.5th
at p. 542) in which we consider the totality of the circumstances.
(Scoggins, supra, 9 Cal.5th at p. 677.) The Banks and Clark
14
factors overlap, and “ ‘[n]o one of these considerations is
necessary, nor is any one of them necessarily sufficient.’ ” (Clark,
supra, 63 Cal.4th at pp. 614–615, 618; Banks, supra, 61 Cal.4th
at p. 803.) Sibley “is entitled to habeas corpus 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.” ’ [Citation.]” (Scoggins, supra, 9 Cal.5th at
p. 676.)
As noted, at Sibley’s request, we have judicially noticed the
record in his direct appeal. Because our 2002 opinion was issued
without the benefit of Banks and Clark, we do not limit our
review to our prior opinion in the case, but also consider
pertinent parts of the record. (In re Taylor (2019) 34 Cal.App.5th
543, 556–557.)
c. The evidence was sufficient to establish Sibley was
a major participant in the robbery, but insufficient to establish he
acted with reckless indifference to human life
(i) Major participation
Applying these principles here, we have little difficulty
concluding that the evidence showed Sibley was a major
participant in the robbery. Sibley was present during the entire
robbery and murder, from start to finish. He was not merely a
passive observer; he participated in every aspect of the crime,
from accosting Arce in the truck, hitting and struggling with him
through the window, and pulling him from the car. After the
fatal shot was fired and Arce was on the ground, Sibley and Tyril
kicked Arce as he lay on the pavement. Sibley and his cohorts
then drove off in Arce’s truck, leaving him wounded in the
parking lot. His actions facilitated the murder to some degree:
the fact he hit and struggled with Arce through the open truck
15
window helped prevent Arce from driving away, giving Tyril the
opportunity to fire the fatal shot. (See In re Parrish, supra, 58
Cal.App.5th at p. 543 [defendant who participated in each stage
of the robbery was a major participant]; People v. Bascomb (2020)
55 Cal.App.5th 1077, 1089 [defendant was willingly involved in
the violent manner in which the robbery took place]; People v.
Law (2020) 48 Cal.App.5th 811, 825, review granted on another
ground July 8, 2020, S262490 [same]; In re Loza, supra, 10
Cal.App.5th at p. 50 [finding “particularly significant in
determining petitioner’s status as a major participant his
physical presence at the scene, involvement in the actual robbery,
and inaction either in attempting to prevent the shootings or in
assisting the victims”].)
(ii) Reckless indifference to human life
However, we cannot conclude, in light of our Supreme
Court’s clarifications in Banks and Clark, that the evidence was
sufficient to show Sibley acted with reckless indifference to
human life.
As we have observed, the Banks and Clark factors overlap.
“[F]actors demonstrating petitioner’s role as a major participant
are highly relevant to the analysis of whether he acted with
reckless indifference.” (In re Loza, supra, 10 Cal.App.5th at
p. 52.) “Generally, the greater the defendant’s participation in
the felony murder, the more likely he or she acted with reckless
indifference to human life.” (People v. Garcia (2020) 46
Cal.App.5th 123, 147; Clark, supra, 63 Cal.4th at p. 615.)
Accordingly, we consider the factors articulated by Banks, as well
as by Clark.
First, there was no evidence that Sibley played a significant
role in planning the crime. It appears that the Sibley twins and
16
Smith spontaneously decided to rob Arce, moments after finding
the Burger King closed and noticing Arce’s truck, with its gold
rims, in the parking lot. Certainly, the group must have agreed
to commit the robbery and had a rudimentary plan—hatched in
the minutes or moments after they found the Burger King
closed—as evidenced by their coordinated actions. But given the
timing, there could have been little actual planning involved.
More to the point, there was no indication that Sibley was the
instigator or directed the other perpetrators in the effort to rob
Arce. (See In re Ramirez, supra, 32 Cal.App.5th at p. 404.)
The evidence regarding weapon use likewise does not weigh
in favor of a finding of reckless indifference. Only one weapon—
that wielded by Tyril—was used, and there was no evidence
Sibley supplied it. The only witness who saw where the gun
came from told police that Tyril retrieved it from his own
waistband. Nothing suggested Sibley himself was armed; there
was no evidence he used a gun or any other weapon. Assuming
Sibley knew that Tyril was carrying a gun, there was no evidence
he knew Tyril planned on actually using it. (See In re Taylor,
supra, 34 Cal.App.5th at pp. 557–558 [even assuming there was
substantial evidence defendant knew his accomplice was armed,
“there is little about [defendant’s] use or knowledge of firearms
that suggests he appreciated the planned robbery posed a
heightened risk of death”]; Scoggins, supra, 9 Cal.5th at p. 677
[fact Scoggins did not know his accomplice would use a gun
suggested he was “far less culpable” than the Tison brothers].)
Where “ ‘the participant who personally commits the
murder exhibits behavior tending to suggest a willingness to use
lethal force,’ ” the “ ‘ “defendant’s presence allows him to observe
his cohorts so that it is fair to conclude that he shared in their
17
actions and mental state.” ’ ” (Scoggins, supra, 9 Cal.5th at
p. 678.) But here, Tyril did not initially display the gun,
suggesting there was no plan to shoot. Prior to the actual
shooting, Tyril does not appear to have done anything that
indicated he was contemplating using lethal force. The “mere
fact of a defendant’s awareness that a gun will be used in the
felony is not sufficient to establish reckless indifference to human
life.” (Clark, supra, 63 Cal.4th at p. 618.)
Next, a “defendant’s knowledge of a confederate’s likelihood
of using lethal force, which may be evidenced before or during the
felony, is significant to the analysis of the defendant’s mental
state.” (Scoggins, supra, 9 Cal.5th at p. 681; Clark, supra, 63
Cal.4th at p. 621.) There was a dearth of evidence showing
Sibley knew his twin was prone to violence, or that he was likely
to use lethal force. There was no evidence the twins had
previously committed crimes together. There was no showing
Sibley knew Tyril had committed a shooting or attacked someone
with a weapon before. There was not even evidence presented
regarding the primary activities of the Sibleys’ gang. (See Banks,
supra, 61 Cal.4th at pp. 788, 796, 810–811 [although some of
getaway driver’s cohorts in armed robbery were gang members,
there was no evidence they had killed before]; In re Miller, supra,
14 Cal.App.5th at p. 976 [“[e]ven though defendant and [the
killer] belonged to the same gang and had committed follow-home
robberies together in the past, ‘[n]o evidence indicated [they] had
ever participated in shootings, murder, or attempted murder’ ”];
In re Taylor, supra, 34 Cal.App.5th at p. 558 [no evidence
defendant was aware of his accomplice’s propensity for violence,
despite knowledge of accomplice’s involvement in illegal activity
18
including drug sales]; In re Ramirez, supra, 32 Cal.App.5th at
p. 405.)
The “duration of the crime also counsels against finding
defendant exhibited reckless indifference to human life.” (In re
Miller, supra, 14 Cal.App.5th at p. 975.) “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.” (Clark, supra, 63 Cal.4th at p. 620; Scoggins, supra,
9 Cal.5th at p. 680 [prolonged restraint of the victim can indicate
reckless indifference to human life, because it provides a greater
opportunity for violence].) Here, the duration of the incident was
short; it transpired over the course of only a few minutes, and
does not support a reckless indifference finding. (See Clark, at
p. 620 [“although the planned robbery was to be of substantial
duration . . . the period of interaction between perpetrators and
victims was designed to be limited”]; Scoggins, supra, 9 Cal.5th at
p. 681 [fact interaction with victims lasted up to five minutes,
rather than a prolonged period, did not weigh in favor of reckless
indifference finding].)
In a related vein, evidence that a defendant had the
opportunity to act as a restraining influence on his murderous
cohorts, but failed to do so, supports a reckless indifference
finding. (See Scoggins, supra, 9 Cal.5th at p. 678 [“ ‘ “the
defendant’s presence gives him an opportunity to act as a
restraining influence on murderous cohorts” ’ ”]; People v. Law,
supra, 48 Cal.App.5th at p. 825, rev.gr. [“Being at the scene of the
shooting, [defendant] could have tried to stop his accomplice’s
violent behavior or to help the victim once he had been shot, but
he did neither”]; In re Loza, supra, 10 Cal.App.5th at pp. 53–54.)
19
Such an opportunity cannot fairly be ascribed to Sibley here.
While attempting to stop Arce from driving away, Sibley tripped
and fell on a curb. Although the evidence is somewhat
contradictory, it was sufficient to show Sibley got up and was at
the car window when Tyril fired the fatal shot. But, the evidence
also suggests that Tyril pulled the gun from his waistband and
fired it within moments, just after Sibley returned to the truck.
Thus, at most, Sibley had a very brief time to take action to try to
restrain Tyril, assuming he saw the gun immediately.5 (See
Clark, supra, 63 Cal.4th at p. 621 [explaining that in Tison,
supra, 481 U.S. at p. 140, the brothers had “advance notice” that
their father might shoot the kidnapped family because he stated
he was thinking about killing them].) Here the shooting appears
to have been impulsive and spontaneous, rather than an expected
part of the robbery, giving Sibley less opportunity to restrain his
twin from using the weapon. (See In re Taylor, supra, 34
Cal.App.5th at p. 558 [reckless indifference absent where the
5
As recounted to a Los Angeles County Sheriff’s sergeant by
an eyewitness, two men, identified later as the Sibley twins,
stuck their arms through the truck’s driver’s side window,
struggling with or striking the driver. Arce backed the truck up.
As he did so, the Sibleys continued reaching into the cab and
striking Arce. Sibley tripped and fell. At that point, Tyril
reached into his waistband, pulled out his gun, and stuck it
inside the window, which was halfway down. Sibley got up and,
after looking into the Burger King window, returned to the truck,
which was at that point moving forward. While the record does
not disclose the precise amount of time that elapsed, according to
Porcayo, when or just before the truck stalled, the gunman forced
the gun into the truck cab. Arce tried to push the gun away. He
tried to restart the truck, and then said he had been shot.
20
evidence tended to show shooting was a “ ‘somewhat impulsive’
response to the victim’s unexpected resistance, as opposed to the
culmination of a prolonged interaction that increased the
opportunity for violence”]; In re Miller, supra, 14 Cal.App.5th at
p. 975.)
Two factors suggest reckless indifference.6 Sibley’s actions
after the shooting provide some support for such a finding.
(Scoggins, supra, 9 Cal.5th at p. 679 [“A defendant’s actions after
the shooting may also bear on the defendant’s mental state”].)
Courts have relied on the fact that the defendant failed to aid a
wounded victim as a factor showing reckless indifference. (See
Clark, supra, 63 Cal.4th 619 [“appellate courts have considered
relevant a defendant’s failure to provide aid while present at the
scene”]; In re Parrish, supra, 58 Cal.App.5th at p. 544 [reckless
indifference shown in part by fact petitioner “did not pause . . . to
aid or comfort the victim”]; People v. Douglas, supra, 56
Cal.App.5th at p. 10 [petitioner took no steps to remedy or reduce
harm after shooting; he “displayed no interest in moderating
violence or in aiding his bloody and suffering victim,” and instead
picked his pocket].) Here, Sibley declined to aid the victim.
Worse, he and Tyril pulled Arce from the truck, and kicked him.
But, his failure to aid the victim is mitigated somewhat by the
fact Porcayo was present and able to call for help. And, there is
no evidence Sibley appreciated how badly Arce was wounded.
6
Clark also focused on whether and what efforts the
defendant made to minimize the risks of violence during the
felony. (Clark, supra, 63 Cal.4th at pp. 621–622.) Here, this
factor appears neutral. As described, the carjacking was a
spontaneous event, and no evidence suggests that Sibley either
took steps to minimize the risk of violence, or heighten it.
21
The gunshot was a contact shot to Arce’s arm, not his head or
chest; however, it went through his upper arm and entered his
left chest. Porcayo testified that as the assailants drove away in
the truck, Arce was standing up, and she thought he was “fine.”
(See In re Taylor, supra, 34 Cal.App.5th at p. 559.)
The strongest factor weighing in favor of a reckless
indifference finding is Sibley’s presence at the crime scene.
“Presence at the scene of the murder is a particularly important
aspect of the reckless indifference inquiry.” (People v. Garcia,
supra, 46 Cal.App.5th at p. 148; see People v. Law, supra, 48
Cal.App.5th at p. 825, rev.gr. [“we are not aware of a single case
that concludes a defendant who personally committed a robbery,
used a gun, and was present for the shooting did not meet the
standard in section 190.2, subdivision (d). The defendants who
have been able to get their special circumstance findings vacated
under Banks and Clark are those who were not wielding guns
themselves and also not present for the shooting (either because
they were acting as getaway drivers or because they were
involved in the planning of the crime only)”], italics added; People
v. Murillo (2020) 54 Cal.App.5th 160, 172–173, review granted on
another ground Nov. 18, 2020, S264978 [“In Banks and Clark,
and in other 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.”].) Here, of course, Sibley did not use a gun.
Our research has uncovered no published cases in which a
defendant who was present at the scene for the duration of the
crime was found to lack reckless indifference to human life. But
by the same token, our research has not uncovered any case in
which the evidence supporting a reckless indifference finding was
22
quite as limited as that presented here. In contrast, such cases
have involved more compelling evidence. (See, e.g., People v.
Douglas, supra, 56 Cal.App.5th at pp. 9–11 [robbery was
defendant’s brainchild; he planned to use a loaded gun; he
directed his accomplices’ actions during the offense; and a few
days later he conducted another armed robbery with the same
gun partner]; In re Parrish, supra, 58 Cal.App.5th at p. 544
[petitioner knew guns would be used in robbery and supplied one;
knew his cohorts were not peaceable; and had the opportunity to
restrain them but did not]; People v. Bascomb, supra, 55
Cal.App.5th at p. 1089 [reckless indifference shown where
defendant “cooked up a plan to break into the home of a known
drug dealer while they were home and to use force, including
firearms, to steal the dealer’s product,” and personally used a
weapon to keep some victims at bay, enabling the murder to
occur in another room]; People v. Murillo, supra, 54 Cal.App.5th
at p. 172, rev.gr. [defendant instructed his compatriot to fire the
gun]; In re McDowell, supra, 55 Cal.App.5th at pp. 1013–1014
[petitioner was armed with and brandished a knife, “chose to
plan and lead a crime with a particularly high risk of violence—a
home invasion robbery of a drug dealer,” and did not intervene
when accomplice fired warning shot and victim said “ ‘kill me if
you’re going to kill me.’ ”]; People v. Law, supra, 48 Cal.App.5th
at p. 825, rev.gr. [defendant broke into the victim’s house armed,
used a gun to threaten the victim, and did not intervene when
accomplice pistol whipped the victim]; People v. Garcia, supra,
46 Cal.App.5th at pp. 146–148 [reckless indifference shown
where defendant planned home invasion robbery that lasted at
least 40 minutes, provided duct tape to bind and gag the victim,
which asphyxiated him, hit another victim in the face, causing an
23
injury that required stitches, and disconnected phones to prevent
the victims calling for help]; In re Loza, supra, 10 Cal.App.5th at
pp. 52–54 [reckless indifference shown where defendant
suggested the robbery, supplied accomplice with a gun, knew
accomplice claimed to have killed someone earlier that morning,
and failed to intervene when accomplice “counted down” while
threatening to shoot the store clerk]; People v. Medina (2016) 245
Cal.App.4th 778, 792 [defendant played a role in planning the
criminal enterprise, had and used a gun, and his prior experience
with accomplice gave him an awareness of danger and risk of
death].)
Thus, while the question is close, and the showing of
reckless indifference was not as weak as in Enmund, Banks,
Clark, and Scoggins, it falls closer on the continuum to those
cases than to Tison. We do not minimize Sibley’s atrocious
behavior. Carjacking a vehicle occupied by a young family and a
baby, and kicking a victim after he has been shot, is abhorrent.
But, given the totality of the circumstances, under Banks and
Clark nothing in the evidence “elevated the risk to human life
beyond those risks inherent in any armed robbery.” (Clark,
supra, 63 Cal.4th at p. 623.) We conclude the evidence was
insufficient to prove the special circumstance allegation after
Banks and Clark.7
7
This Division’s 2002 opinion concluded the evidence
overwhelmingly established reckless indifference for several
reasons, most of which are no longer tenable after Banks and
Clark. The opinion reasoned that carjacking was an inherently
dangerous and heinous felony, and the potential for death results
from the very presence of a firearm at the scene of a crime. But
our Supreme Court has since made clear that the mere presence
of a firearm—and, indeed, the foreseeable risk of death in an
24
2. Sibley’s section 1170.95 petition
As noted, Sibley has also appealed the trial court’s denial of
his petition, pursuant to section 1170.95, for vacation of his
murder conviction and resentencing. He contends that his
section 1170.95 petition was facially sufficient and established a
prima facie case for relief, and the trial court erred by considering
information “outside the four corners of the petition.” Further, he
urges that, because his jury was not instructed on the major
participant/reckless indifference requirement, the true finding on
the special circumstance does not render him ineligible for relief
as a matter of law, nor does this court’s pre-Banks and Clark
finding that the instructional error was harmless. Thus, he
contends, the trial court failed to follow the statute’s procedural
requirements; it also violated his statutory and constitutional
armed robbery—is insufficient to prove reckless indifference.
“ ‘Awareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient’ to establish
reckless indifference to human life[.]” (Scoggins, supra, 9 Cal.5th
at p. 677; Banks, supra, 61 Cal.4th at p. 808; Clark, supra, 63
Cal.4th at pp. 617–618 [the fact a robbery involves a gun is
insufficient, by itself, to support a finding of reckless
indifference].). The Supreme Court has also held that the fact a
felony is inherently dangerous, and is listed in section 189, does
not necessarily demonstrate reckless indifference. (Banks, at
p. 810 [“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 inquiries.”]; Clark, at p. 616 [although felonies listed
in section 189 are deemed inherently dangerous, a defendant
involved in such a felony does not automatically exhibit reckless
indifference].)
25
rights to counsel, due process, and presence at all critical stages
of the proceeding by summarily denying the petition in his
absence, without appointing counsel or permitting briefing.
These errors, he asserts, amounted to prejudicial and structural
error, requiring reversal. Because we have now concluded that
the evidence is insufficient, under Banks and Clark, to support
the special circumstance finding, we need not reach these
contentions. Instead, we order reversal of the trial court’s order
denying the petition, and remand for further proceedings.
a. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Gentile (2020) 10 Cal.5th 830, 842–843; People v.
Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review
granted Mar. 18, 2020, S260493; People v. Munoz (2019) 39
Cal.App.5th 738, 749–750, 763, review granted Nov. 26, 2019,
S258234.) Prior to Senate Bill 1437’s enactment, under the
felony-murder rule “a defendant who intended to commit a
specified felony could be convicted of murder for a killing during
the felony, or attempted felony, without further examination of
his or her mental state.” (People v. Lamoureux (2019) 42
Cal.App.5th 241, 247–248.) Senate Bill 1437 amended the felony-
murder rule by adding section 189, subdivision (e), which
provides that a participant in the perpetration of qualifying
felonies is liable for felony murder only if the person: (1) was the
actual killer; (2) was not the actual killer but, with the intent to
kill, acted as a direct aider and abettor; or (3) the person was a
26
major participant in the underlying felony and acted with
reckless indifference to human life, as described in section 190.2,
subdivision (d). (See Gentile, at p. 842.)
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a now-
invalid felony-murder or natural and probable consequences
theory may petition for vacation of their convictions and
resentencing. A defendant is eligible for relief if he could no
longer be convicted of first or second degree murder due to
changes to sections 188 and 189 effectuated by Senate Bill 1437.
(§ 1170.95, subd. (a).)
Generally, evaluation of a section 1170.95 petition requires
a multi-step process: an initial review to determine the petition’s
facial sufficiency; a prebriefing, “ ‘first prima facie review’ ” to
preliminarily determine whether the petitioner is statutorily
eligible for relief as a matter of law; and a second, postbriefing
prima facie review to determine whether the petitioner has made
a prima facie case that he or she is entitled to relief. (People v.
Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington), review
granted Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th
at pp. 327–330, rev.gr.) If the court can determine, based upon
its review of readily ascertainable information in the record of
conviction and the court file, that the petitioner is statutorily
ineligible for relief as a matter of law, it may summarily deny the
petition without appointing counsel. (Tarkington, at pp. 898,
900–902; Verdugo, at p. 332; People v. Lewis (2020) 43
Cal.App.5th 1128, 1139–1140, review granted Mar. 18, 2020,
S260598; but see People v. Cooper (2020) 54 Cal.App.5th 106,
27
review granted Nov. 10, 2020, S264684.)8 If the petitioner’s
ineligibility is not established as a matter of law, the court must
appoint counsel and permit briefing to determine whether the
petitioner has made a prima facie showing he or she is entitled to
relief. (Verdugo, at p. 330; Tarkington, at p. 898.) If the
petitioner makes such a showing, the court must issue an OSC
and conduct a hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subds. (c), (d); People v. Nguyen
(2020) 53 Cal.App.5th 1154, 1166.)
Controlling here is section 1170.95, subdivision (d)(2). That
subdivision provides, in pertinent part: “If there was a prior
finding by a court or jury that the petitioner did not act with
reckless indifference to human life or was not a major participant
in the felony, the court shall vacate the petitioner’s conviction
and resentence the petitioner.” This subdivision imposes “a
mandatory duty on the court to vacate defendant’s sentence and
resentence him whenever there is a prior finding of this court
that the defendant was not a major participant in the underlying
felony and did not act with reckless indifference to human life.”
(People v. Ramirez (2019) 41 Cal.App.5th 923, 932.) Where such
a circumstance exists, the trial court must proceed directly to
resentencing, rather than going through the steps of issuing an
OSC and conducting a hearing. (Ibid.)
8 Our California Supreme Court is currently reviewing
whether a trial court may consider the record of conviction in
determining whether a defendant has made a prima facie
showing of eligibility for relief under section 1170.95, and when
the right to counsel arises under section 1170.95, subdivision (c).
(People v. Lewis, S260598.)
28
b. Application here
In light of our disposition of Sibley’s habeas petition, his
arguments regarding the trial court’s failure to follow the proper
procedures are moot. Based on our conclusion that the evidence
did not establish he acted with reckless indifference, he is
entitled to vacation of his murder conviction and resentencing.
When the trial court ruled, of course, there was no “prior”
finding by an appellate court or jury that he did not act with
reckless indifference. Unlike in Ramirez, the trial court here did
not err by disregarding such a finding. (See People v. Ramirez,
supra, 41 Cal.App.5th at p. 930.) Nonetheless, assuming the
court’s denial of the petition was correct at the time it ruled, it
cannot now stand. Requiring Sibley to file a new section 1170.95
petition would be a waste of time and resources. In Ramirez, for
example, the trial court disregarded an appellate court’s prior
finding that the defendant was not a major participant who acted
with reckless indifference. (People v. Ramirez, at p. 930.) The
People conceded that the trial court’s ruling was error, but
nonetheless requested that the court be required to complete the
steps required by section 1170.95, including issuance of an OSC.
(Ibid.) Ramirez rejected this approach, observing that the “delay
proposed by respondent would run directly counter to the
statute’s stated purpose of eliminating lengthy sentences which
have been declared incommensurate with . . . culpability.” (Id. at
p. 933.)
Similarly, here, requiring Sibley to file a new section
1170.95 petition would be a pointless and idle act. Instead, the
more expeditious course of action is to remand to allow the trial
court to reconsider Sibley’s section 1170.95 petition in light of our
ruling on his habeas petition.
29
We therefore remand this matter to the trial court, with
directions to vacate Sibley’s murder conviction pursuant to
section 1170.95, subdivision (d)(2), appoint counsel, allow
briefing, if requested, on the issue of resentencing, and conduct a
full resentencing hearing. (See generally People v. Buycks (2018)
5 Cal.5th 857, 893; People v. Burbine (2003) 106 Cal.App.4th
1250, 1256.)
30
DISPOSITION
The petition for writ of habeas corpus is granted. The true
finding on the robbery-murder special circumstance allegation
under section 190.2, subdivision (a)(17) is vacated. The matter is
remanded to the court that ruled on the section 1170.95 petition
with instructions to reconsider the petition, appoint counsel for
Sibley, vacate his murder conviction under section 1170.95,
subdivision (d)(2), and resentence him in accordance with section
1170.95, subdivision (d)(3).
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
SALTER, J.*
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
31