Filed 5/20/21 P. v. McKenzie CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B305393
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA138096-03)
v.
GERALD McKENZIE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Robert J. Perry, Judge. Reversed and
remanded.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Senior Assistant Attorney General, Charles S.
Lee and Nima Razfar, Deputy Attorneys General, for Plaintiff
and Respondent.
Gerald McKenzie, convicted in 1997 of first degree murder
(Pen. Code, § 187),1 robbery (§ 211), and kidnapping for robbery
(§ 209, subd. (b)), with true felony-murder special-circumstance
findings (§ 190.2, subds. (a)(17), (d)), appeals the superior court’s
postjudgment order denying his petition for resentencing under
section 1170.95. McKenzie contends the court erred in ruling on
his petition without first appointing counsel to represent him and
ruling he was ineligible for resentencing as a matter of law
because he could still be convicted of felony murder as a major
participant in the underlying felonies who had acted with
reckless indifference to human life pursuant to section 189,
subdivision (e)(3). Because the record of conviction does not
establish McKenzie’s ineligibility for resentencing as a matter of
law, we reverse the superior court’s order and remand with
directions to appoint counsel for McKenzie, to issue an order to
show cause and to conduct further proceedings in accordance
with section 1170.95, subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
1. McKenzie’s Felony Murder Conviction
As summarized in our opinion affirming McKenzie’s
convictions (People v. McKenzie (Feb. 8, 2000, B118700) [nonpub.
opn.]), McKenzie, Austin Hemsley, Delbert Paulino and Equilla
Jones agreed to rob Aundra Boykins, who had been dating Jones
and had been seen carrying large amounts of cash.
Jones and Boykins checked into a hotel in Santa Monica on
the morning of January 3, 1996. Later that morning McKenzie
and Hemsley picked up Paulino and drove to the hotel in a car
McKenzie had borrowed from his cousin at Hemsley’s request.
1 Statutory references are to this code.
2
Once they arrived at the hotel’s subterranean parking lot,
Hemsley and Paulino got out of the car and returned with
Boykins, whose hands were bound behind his back. Hemsley and
Paulino put Boykins in the backseat of the car and told McKenzie
to drive.
After driving for a short while, the men stopped in an alley.
McKenzie left his cousin’s car with Boykins, with Hemsley and
Paulino still in it, and drove Paulino’s car home. Boykins’s body
was found on January 10, 1996 near the La Brea Avenue exit of
the Santa Monica Freeway. His hands were bound behind his
back with duct tape. The cause of death was multiple gunshot
wounds. In a police interview McKenzie said he did not know
either Hemsley or Paulino had a gun but conceded one of them
must have been armed to force Boykins into the car.
The murder weapon together with a passport and personal
mail with McKenzie’s name was found in a bedside table during a
narcotics search of a residence in an unrelated matter. McKenzie
denied living at the residence, but told investigating officers he
had visited it from time to time. He acknowledged seeing the
weapon at the residence and said it belonged to Hemsley.
The jury found McKenzie guilty of first degree murder,
second degree robbery and kidnapping for robbery and found true
the allegation a principal had been armed in committing each
offense. The jurors also found true three felony-murder special-
circumstance allegations pursuant to section 190.2,
subdivisions (a)(17) and (d), murder during commission of
robbery, murder during commission of kidnapping and murder
3
during commission of kidnapping for robbery.2 McKenzie was
sentenced to life in prison without parole plus one year.
On appeal this court affirmed McKenzie’s convictions,
holding sufficient evidence supported the jury’s findings,
including the special-circumstance findings: “By planning the
kidnapping/robbery and providing the transportation by which to
fulfill the plan, appellant acted as a major participant. Moreover,
appellant acted with reckless indifference to human life by
allowing the sequence of events to continue with the knowledge
codefendant Hemsley was armed and without any effort to
prevent the crimes.” We also rejected McKenzie’s legal argument
that CALJIC No. 8.80.1, the felony-murder special-circumstance
instruction, did not adequately define the terms “major
participant” and “reckless indifference to human life.”
2. McKenzie’s Petitions for Resentencing
On January 9, 2019 McKenzie, representing himself, filed a
petition for resentencing under section 1170.95. The superior
2 Using CALJIC No. 8.80.1 (1996 rev.), the court instructed
the jury, in part, “If you find the defendant was not the actual
killer of a human being or if you are unable to decide whether the
defendant was the actual killer or an aider and abettor, you
cannot find the special circumstance to be true unless you are
satisfied beyond a reasonable doubt that such defendant with the
intent to kill aided, abetted . . . or assisted any actor in the
commission of the murder in the first degree, or with reckless
indifference to human life and as a major participant, aided,
abetted . . . or assisted in the commission of the crime of robbery,
kidnapping or kidnapping for robbery which resulted in the death
of a human being. [¶] A defendant acts with reckless
indifference to human life when the defendant knows or is aware
that his acts involve a grave risk of death to an innocent human
being.”
4
court’s minute order for February 7, 2019 indicates the court
appointed the alternate public defender to represent McKenzie
and set a March 18, 2019 date for receipt of a response to the
petition from the prosecutor.
On March 11, 2019 the district attorney filed an opposition
memorandum, arguing McKenzie was ineligible for resentencing
because he had been a major participant in the underlying
felonies and had acted with reckless indifference to human life
and, therefore, could still be convicted of felony murder
notwithstanding the amendments to sections 188 and 189 made
by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437). The district attorney attached to
her memorandum a copy of our opinion affirming McKenzie’s
convictions, the jury’s verdict forms and the abstract of judgment.
On March 12, 2019, without allowing time for McKenzie’s
counsel to file a reply to the prosecutor’s memorandum and
without appearances by any party, the superior court denied the
petition, agreeing with the prosecutor’s reasoning that McKenzie
was ineligible for resentencing as a major participant in the
underlying felonies who had acted with reckless indifference to
human life. The court quoted several paragraphs from our
opinion affirming McKenzie’s convictions in which we held the
evidence was sufficient to support the jury’s felony-murder
special-circumstance findings. As an independent ground for
denying the petition, the court ruled Senate Bill 1437 and
section 1170.95 are unconstitutional.
McKenzie, again representing himself, filed a second
petition for resentencing under section 1170.95 on January 21,
2020. He attached to the petition a one-page handwritten
declaration stating he had no knowledge Boykins would be killed.
5
On February 10, 2020, without appointing counsel, the court
summarily denied the second petition, again noting this court in
affirming the convictions had affirmed the findings that
McKenzie had acted as a major participant in planning the
kidnapping/robbery of the victim and had acted with reckless
indifference to human life.
McKenzie filed a timely notice of appeal from the order
denying his second petition. After we appointed counsel to
represent McKenzie on appeal, his counsel filed an application for
relief from default for McKenzie’s failure to file a notice of appeal
from the order denying his first petition. We denied the
application as unnecessary in light of the pending appeal.3
3 The order denying McKenzie’s second petition did not
include an alternate ruling that Senate Bill 1437 and
section 1170.95 are unconstitutional. Nonetheless, McKenzie
briefly discusses this issue in his opening brief, noting that every
court of appeal that has considered these constitutional
arguments has rejected them and that the Attorney General has
consistently taken the position the new law does not violate the
California Constitution. In his respondent’s brief the Attorney
General again states Senate Bill 1437 and section 1170.95 do not
violate the California Constitution. We agree the superior court’s
constitutional concerns have been thoroughly considered and
persuasively refuted in a number of comprehensive opinions
(e.g., People v. Marquez (2020) 56 Cal.App.5th 40; People v. Johns
(2020) 50 Cal.App.5th 46; People v. Superior Court (Gooden)
(2019) 42 Cal.App.5th 270; People v. Lamoureux (2019)
42 Cal.App.5th 241) and need not be addressed yet again by this
court.
6
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder (People v. Gentile (2020) 10 Cal.5th 830, 838-839
(Gentile)) and significantly limited the felony-murder exception to
the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e); see People v. Rodriguez (2020) 58 Cal.App.5th 227, 236,
review granted Mar. 10, 2021, S266652; People v. Bascomb (2020)
55 Cal.App.5th 1077, 1080.) Senate Bill 1437 also authorized,
through new section 1170.95, an individual convicted of felony
murder or murder under a natural and probable consequences
theory to petition the sentencing court to vacate the conviction
and be resentenced on any remaining counts if he or she could
not have been convicted of murder because of Senate Bill 1437’s
changes to the definition of the crime. (See Gentile, at p. 859.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a
process for the court to determine whether to issue an order to
show cause and hold an evidentiary hearing to consider if the
murder conviction should be vacated and the petitioner
resentenced on any remaining counts.4 The superior court
4 Section 1170.95, subdivision (c), provides, “The court shall
review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section. If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner. The prosecutor
7
properly proceeds under subdivision (c) in two steps, “one made
before any briefing to determine whether the petitioner has made
a prima facie showing he or she falls within section 1170.95—
that is, that the petitioner may be eligible for relief—and a
second after briefing by both sides to determine whether the
petitioner has made a prima facie showing he or she is entitled to
relief.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 328
(Verdugo), review granted Mar. 18, 2020, S260493; accord, People
v. York (2020) 54 Cal.App.5th 250, 262, review granted Nov. 18,
2020, S264954; People v. Soto (2020) 51 Cal.App.5th 1043, 1054,
review granted Sept. 23, 2020, S263939; People v. Drayton (2020)
47 Cal.App.5th 965, 975; People v. Torres (2020) 46 Cal.App.5th
1168, 1177, review granted June 24, 2020, S262011; but see
People v. Cooper (2020) 54 Cal.App.5th 106, 118, review granted
Nov. 10, 2020, S264684 [section 1170.95, subdivision (c),
contemplates only one prima facie review before an order to show
cause issues].)
Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo, supra,
44 Cal.App.5th at p. 327, review granted.) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez, supra, 58 Cal.App.5th at p. 230,
review granted; People v. Lopez (2020) 56 Cal.App.5th 936, 949,
shall file and serve a response . . . and the petitioner may file and
serve a reply. . . . If the petitioner makes a prima facie showing
that he or she is entitled to relief, the court shall issue an order to
show cause.”
8
review granted Feb. 10, 2021, S265974; but see People v. Duke
(2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 2021,
S265309 [prosecutor must only prove a reasonable jury could find
the defendant guilty of murder with the requisite mental state;
“[t]his is essentially identical to the standard of substantial
evidence”].) The prosecutor and petitioner may rely on the record
of conviction or offer new or additional evidence to meet their
respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton, supra, 47 Cal.App.5th at p. 981.)
2. The Superior Court Erred in Summarily Denying
McKenzie’s Petition for Resentencing
The Attorney General argues the jury’s felony-murder
special-circumstance findings, affirmed on appeal in 2000,
preclude resentencing under section 1170.95 as a matter of law,
notwithstanding the Supreme Court’s clarification in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark) of the requirements for finding a felony-
murder special-circumstance allegation true. Alternatively, he
contends we should affirm the order denying McKenzie’s petition
because the record of conviction demonstrates as a matter of law
that McKenzie was a major participant in the underlying felonies
who acted with reckless indifference to human life within the
meaning of Banks and Clark and, therefore, could still be
convicted of felony murder under amended section 189,
subdivision (e)(3).
We rejected the Attorney General’s first argument in People
v. Harris (2021) 60 Cal.App.5th 939, 954-958 (Harris) review
granted April 28, 2021, S267802. The second argument is not
supported by the record of conviction, which fails to establish as a
9
matter of law that McKenzie acted with reckless indifference to
human life as defined in Banks, supra, 61 Cal.4th 788 and Clark,
supra, 63 Cal.4th 522.
a. Banks and Clark
Section 189, subdivision (e), added to the Penal Code by
Senate Bill 1437, permits a felony-murder conviction only when
specified facts relating to the defendant’s individual culpability
have been proved: The defendant was the actual killer (§ 189,
subd. (e)(1)); although not the actual killer, the defendant, with
the intent to kill, assisted in the commission of the murder
(§ 189, subd. (e)(2)); or the defendant was a major participant in
an underlying felony listed in section 189, subdivision (a), and
acted with reckless indifference to human life, “as described in
subdivision (d) of Section 190.2,” the felony-murder special-
circumstance provision (§ 189, subd. (e)(3)).
Nearly two decades after McKenzie’s trial and conviction
the Supreme Court in Banks, supra, 61 Cal.4th 788 identified
several factors a court should consider in determining whether a
defendant was a “major participant” under section 190.2,
subdivision (d): “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.)
10
The Banks Court explained that, to determine whether the
defendant acted with reckless indifference, courts must “look to
whether a defendant has ‘“knowingly engag[ed] in criminal
activities known to carry a grave risk of death.”’” (Banks, supra,
61 Cal.4th at p. 801.) As further refined in Clark, supra,
63 Cal.4th at page 617, “reckless indifference” “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.’”
The Supreme Court in Clark identified a series of
considerations relevant to determining whether a defendant had
acted with reckless indifference to human life (with some obvious
overlap with the major-participant factors specified in Banks).
Among others, was the defendant aware that guns would be used;
did the defendant himself or herself use a gun; did the defendant
have an opportunity to reduce the overall risk of violence during
the felony or to aid the victim; did the defendant know his or her
cohorts were likely to use lethal force? (Clark, supra, 63 Cal.4th
at pp. 618-622.) Specifically with respect to the facts before it,
the Clark Court emphasized, “[W]hile 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.” (Id. at p. 618.)5
5 The Supreme Court in Banks and Clark did not expressly
require that juries be instructed on the factors it had identified.
Optional language describing those factors has been added to
11
b. The jury’s pre-Banks/Clark felony-murder special-
circumstance finding does not preclude relief as a
matter of law
The felony-murder special-circumstance allegations
required McKenzie’s jury to find he had acted with reckless
indifference to human life and as a major participant in the
robbery kidnapping that resulted in Boykins’s death (§ 190.2,
subds. (a)(17), (d)). As discussed, in Harris, supra,
60 Cal.App.5th 939, review granted, we rejected the Attorney
General’s arguments that the jury’s finding precludes relief under
section 1170.95 as a matter of law and any challenge to the
evidentiary support for the finding based on Banks and Clark
must be made by petition for writ of habeas corpus.
CALCRIM No. 703; and the bench notes expressly direct the trial
court to determine whether the Banks and Clark factors “need be
given.” Accordingly, it is not necessarily the case that a post-
Banks/Clark jury will have received instructions that differ from
those given to a pre-Banks/Clark jury that made a major
participant/reckless indifference finding. Nonetheless, posttrial,
appellate and postconviction review of a felony-murder special-
circumstance finding after Banks and Clark must consider the
factors, issues and questions posited in those cases. (See, e.g.,
In re Scoggins (2020) 9 Cal.5th 667, 671 [habeas petitioner’s
conduct did not support a finding of reckless indifference to
human life under Banks and Clark notwithstanding affirmance
on direct appeal of a pre-Banks and Clark robbery-murder
special-circumstance finding]; In re Bennett (2018)
26 Cal.App.5th 1002 [granting habeas relief and vacating
robbery-murder special-circumstance finding in light of Banks
and Clark notwithstanding prior opinion affirming the special-
circumstance finding].)
12
As we explained in Harris, supra, 60 Cal.App.5th at
pages 956-957, review granted, a section 1170.95 petition
challenges the murder conviction, not the special-circumstance
finding. (See People v. York (2020) 54 Cal.App.5th 250, 260
(York), review granted Nov. 18, 2020, S264954 [“section 1170.95
permits a petitioner to challenge a murder conviction. If that
challenge succeeds, then under section 1170.95, subdivision
(d)(3), the special circumstance is vacated as a collateral
consequence”].) To be sure, the requirement for finding a
defendant guilty of felony murder under section 189,
subdivision (e)(3), is “the same as the standard for finding a
special circumstance under section 190.2[, subdivision] (d), as the
former provision expressly incorporates the latter.” (In re Taylor
(2019) 34 Cal.App.5th 543, 561; accord, York, at p. 258 [“[t]he
language of section 189, subdivision (e)(3), as amended by Senate
Bill 1437, tracks the language of the special circumstance
provision”].) But “[w]hat permits a defendant convicted of felony
murder to challenge his or her murder conviction based on the
contention that he or she was not a major participant in the
underlying felony who acted with reckless indifference to human
life, are the changes Senate Bill 1437 made to sections 188 and
189, and in particular the addition of section 189, subdivision
(e)(3), not the rulings in Banks and Clark.” (York, at p. 261.)
Thus, McKenzie’s petition is made possible by the changes made
to section 189, not because of the clarifications made in Banks
and Clark. (See § 1170.95, subd. (a)(3) [allowing petition if “the
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective
January 1, 2019”].)
13
Similarly, although McKenzie’s jury was instructed that to
find the felony-murder special-circumstance allegations true, it
had to find he had aided and abetted the robbery and kidnapping
that led to the victim’s death while acting as a major participant
with reckless indifference to human life, the elements now found
in section 189, subdivision (e)(3), that pre-Banks/Clark finding,
without more, does not preclude relief under section 1170.95.
(See In re Scoggins (2020) 9 Cal.5th 667, 673-674 [“Where a
decision 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’”]; York, supra, 54 Cal.App.5th at p. 262, review
granted [“a pre-Banks and Clark special circumstance finding—
necessarily made on the basis of our former, and significantly
different, understanding of what the terms ‘major participant’ in
the underlying felony and ‘reckless indifference’ to human life
meant—does not preclude relief under section 1170.95 as a
matter of law”]; People v. Law (2020) 48 Cal.App.5th 811, 825,
review granted July 8, 2020, S262490 [“the trial court erred by
concluding the special circumstance finding, on its own, rendered
Law ineligible for relief—that is, the court erred by failing to
determine whether Law qualified as a major participant who
acted with reckless indifference to human life under Banks and
Clark”]; People v. Torres, supra, 46 Cal.App.5th at p. 1180, review
granted [because no court has affirmed the special-circumstance
findings at issue post-Banks and Clark, “[t]here is therefore a
14
possibility that Torres was punished for conduct that is not
prohibited by section 190.2 as currently understood”]; but see
People v. Nunez (2020) 57 Cal.App.5th 78, 93, review granted
Jan. 13, 2021, S265918) [disagreeing with York, Law and
Torres].)6
c. The record of conviction does not establish McKenzie
is ineligible for resentencing as a matter of law
Although the jury’s pre-Banks/Clark felony-murder special-
circumstance findings, without more, does not preclude
resentencing under section 1170.95, the superior court was
authorized to review the record of conviction to determine
whether McKenzie was ineligible for resentencing under
section 1170.95 as a matter of law. (See Verdugo, supra,
44 Cal.App.5th at p. 330, review granted [“[t]he record of
conviction might also include other information that establishes
the petitioner is ineligible for relief as a matter of law because he
or she was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188
and 189”].)7 However, in making that determination—that is, in
6 Whether a felony-murder special-circumstance finding
made before Banks, supra, 61 Cal.4th 788 and Clark, supra,
63 Cal.4th 522 precludes a defendant from making a prima facie
showing of eligibility for relief under section 1170.95 is pending
before the Supreme Court in People v. Strong, review granted
March 10, 2021, S266606.
7 Our opinion affirming McKenzie’s conviction is part of the
record of conviction and was properly considered by the superior
court in determining whether McKenzie made a prima facie
showing of eligibility for relief under section 1170.95 or whether
he was ineligible for relief as a matter of law. (Harris, supra,
15
evaluating whether a petitioner has made a prima facie showing
he or she is entitled to relief—the superior court cannot engage in
factfinding. As the court of appeal explained in People v.
Drayton, supra, 47 Cal.App.5th at page 980, “The trial court
should not evaluate the credibility of the petition’s assertions, but
it need not credit factual assertions that are untrue as a matter
of law—for example, a petitioner’s assertion that a particular
conviction is eligible for relief where the crime is not listed
in subdivision (a) of section 1170.95 as eligible for resentencing.
Just as in habeas corpus, if the record ‘contain[s] facts refuting
the allegations made in the petition . . . the court is justified in
making a credibility determination adverse to the petitioner.’
[Citation.] However, this authority to make determinations
without conducting an evidentiary hearing pursuant to
section 1170.95, subdivision (d) is limited to readily ascertainable
facts from the record (such as the crime of conviction), rather
than factfinding involving the weighing of evidence or the
exercise of discretion (such as determining whether the petitioner
showed reckless indifference to human life in the commission of
the crime).” (Accord, People v. Perez (2020) 54 Cal.App.5th 896,
903-904, review granted Dec. 9, 2020, S265254; People v. Nguyen
(2020) 53 Cal.App.5th 1154, 1165-1166.)
Viewed through the lens prescribed by Banks and Clark,
even if McKenzie was a major participant in Boykins’s robbery
and kidnapping,8 the record of conviction falls far short of
60 Cal.App.6th at pp. 953-954, review granted; Verdugo, supra,
44 Cal.App.5th at p. 333, review granted.)
8 This court affirmed the finding McKenzie was a major
participant because he had planned the kidnapping and robbery
and provided the necessary transportation. The evidence found
16
establishing McKenzie acted with reckless indifference to human
life as a matter of law. As discussed, the opinion affirming the
felony-murder special-circumstance findings stated only that
McKenzie knew Hemsley was armed and had allowed the
kidnapping and robbery to continue with any effort to prevent the
crimes. Yet Clark instructed that simply because a gun was used
during a robbery is insufficient to establish reckless indifference.
(Clark, supra, 63 Cal.4th at p. 618.) Here, there was no evidence
McKenzie was armed, and he was not a direct participant in
whatever force had been used to bind Boykins’s hands and move
him into McKenzie’s car. In addition, while McKenzie did
nothing to interfere with the ongoing kidnapping while he was
still with Hemsley and Paulino, when he left his confederates,
Boykins was still alive. McKenzie was not present at the scene of
the killing and was not in a position to prevent it.
Viewed as a whole, this evidence, while held to be sufficient
for a pre-Banks/Clark finding of reckless indifference, does not
permit a finding, as a matter of law, that McKenzie was willing
to assist in killing Boykins if necessary to successfully complete
the robbery. (See Clark, supra, 63 Cal.4th at p. 617 [reckless
indifference encompasses a willingness to assist another in
killing to achieve a particular goal, even if the victim’s death was
not specifically intended].) Factfinding following an evidentiary
hearing is necessary to determine whether McKenzie could be
sufficient to uphold McKenzie’s role in planning the crimes was
his prior friendship with Hemsley, Paulino and Jones; his
willingness to borrow his cousin’s car at Hemsley’s request,
rather than use one of the vehicles he regularly drove; and the
improbability the men had not discussed robbing Boykins during
their drive to the hotel.
17
convicted of felony murder under section 189, subdivision (e),
and, therefore, is ineligible for relief under section 1170.95.
DISPOSITION
The order denying McKenzie’s section 1170.95 petition is
reversed. On remand the superior court is to appoint counsel for
McKenzie, to issue an order to show cause and to conduct further
proceedings in accordance with section 1170.95, subdivision (d).
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
18