Filed 12/14/22 P. v. Compton CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C079422
Plaintiff and Respondent, (Super. Ct. No. 12F00909)
v.
CHRISTOPHER COREY COMPTON,
Defendant and Appellant.
In this special circumstance murder case, defendant Christopher Corey Compton
joined his friend and codefendant, Jazz Curry, in committing an armed robbery in the
parking lot of an apartment complex where two of their friends lived. According to
defendant, who was relatively forthcoming both during his interview with detectives and
during his trial testimony, he did not want to participate in the robbery and tried to get out
of it, but ultimately felt he had to do so because he was afraid of saying no to Curry. The
victim was Tralane Thomas, from whom Curry purchased marijuana earlier in the day.
That evening, Curry called Thomas to set up another buy. When Thomas arrived to make
1
the sale, he reached for his waistband. At the same time, Curry pulled out a loaded
handgun, and defendant also pulled an unloaded shotgun from his pant leg. Thomas then
put his hands up as Curry grabbed a necklace from his neck and fired two fatal rounds
into his chest. Defendant ran as Thomas fell to the ground. Curry took the handgun
Thomas had in his waistband and also ran. Defendant and Curry then spent the night in
separate apartments because defendant was mad at Curry, both for killing Thomas and for
involving defendant in the robbery.
Defendant and Curry were tried together before separate juries. This appeal
involves only defendant. He was convicted of first degree murder (Pen. Code, §§ 187,
189)1 and robbery (§ 211) and found to have personally used a firearm during the
commission of both offenses (former § 12022.53, subd. (b)). With respect to the murder,
the jury found true a robbery-murder special-circumstance allegation (§ 190.2,
subd. (a)(17)). Defendant was sentenced to serve an indeterminate prison term of life
without the possibility of parole.2
1 Undesignated statutory references are to the Penal Code.
2 Trial occurred between November 2014 and May 2015. Defendant’s notice of
appeal was filed in June 2015. The initial record on appeal was filed in January 2018.
However, various requests to supplement/augment the record resulted in suspension of
time for briefing until September 2019. Thereafter, this court granted defendant’s former
appellate counsel many extensions of time to file the opening brief. That brief was filed
in December 2020. Multiple extensions of time were also granted to the Attorney
General, who filed the respondent’s brief in August 2021. Finally, after two extensions
of time were granted to defendant’s former appellate counsel to file the reply brief, no
reply brief was filed. Then, having discovered a potentially meritorious issue not raised
in the opening brief despite the many extensions of time granted, we asked the parties for
supplemental briefing on what impact, if any, our Supreme Court’s decisions in People v.
Banks (2015) 61 Cal.4th 788 (Banks), People v. Clark (2016) 63 Cal.4th 522 (Clark), and
In re Scoggins (2020) 9 Cal.5th 667 (Scoggins) have on the sufficiency of the evidence
supporting defendant’s special circumstance finding. The Attorney General filed a
supplemental letter brief in February 2022. No supplemental brief was received by
defendant’s former appellate counsel. Thereafter, this court relieved that attorney from
2
On appeal, defendant contends: (1) the evidence is insufficient to support his
felony-murder conviction because the evidence does not support newly enacted
requirements that defendant was a major participant in the robbery, and that he acted with
reckless indifference to human life, as those requirements are elucidated in Banks, supra,
61 Cal.4th 788, Clark, supra, 63 Cal.4th 522, and Scoggins, supra, 9 Cal.5th 667; (2) the
trial court prejudicially erred and violated defendant’s federal constitutional rights by
denying a defense request to instruct the jury on the defense of duress; (3) trial counsel
provided constitutionally deficient assistance by pursuing a duress defense without first
determining whether or not the trial court would instruct the jury on that defense; (4) the
trial court prejudicially erred and also violated defendant’s constitutional rights by
(a) declining to instruct the jury that a lack of motive may support a not guilty verdict,
and (b) allowing the prosecutor to play defendant’s police interview for the jury a second
time in its entirety; (5) the cumulative prejudicial impact of the foregoing assertions of
error requires reversal; and (6) we must remand the matter for a new sentencing hearing
because Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620), which became
effective January 1, 2018, applies retroactively to cases not yet final on appeal.
We conclude the evidence does not support a finding that defendant acted with
reckless indifference to human life. We must therefore vacate the special circumstance
finding for insufficient evidence, a conclusion that precludes retrial as to that allegation.
We must also reverse the felony-murder conviction. However, because the elements of
major participation and reckless indifference to human life were added to the crime of
felony murder after defendant’s trial, ordinarily retrial would be permitted to provide the
representing defendant and appointed successor appellate counsel to file the requested
supplemental brief. After additional extensions of time were granted to allow new
counsel to review and further augment the record, defendant’s supplemental brief was
filed in August 2022, at which point the case became “fully briefed,” more than seven
years after the notice of appeal was filed.
3
prosecution with an opportunity to prove the new elements. In other words, such an error
is usually treated as one of instructional error rather than insufficiency of the evidence.3
Here, however, the prosecution already had an opportunity to prove these elements, in
connection with the special circumstance allegation, and failed to do so. In this situation,
we also reverse the felony-murder conviction for insufficient evidence.4
We address defendant’s remaining claims solely with respect to their effect on the
robbery conviction and conclude as follows: the trial court did not err in declining to
instruct on the defense of duress because that defense was not supported by substantial
evidence; trial counsel did not provide constitutionally deficient assistance; assuming the
trial court erred in the other two respects urged above, these errors were harmless
whether considered individually or cumulatively; and finally, we must remand the matter
for an exercise of Senate Bill 620 discretion.5
FACTS
In January 2012, Thomas often stayed over at his girlfriend’s apartment in
Sacramento. They were in the process of looking for an apartment together. Thomas
sold marijuana and routinely carried cash. The night before he was killed, his girlfriend
watched him count about $1,000 in cash. He carried that money in his pocket on the day
he was killed, Monday, January 30.
3 Defendant also argues reversal of the murder conviction is required because the
jury was not instructed on the new requirements.
4 These conclusions make it unnecessary to address two additional arguments raised
in defendant’s supplemental brief, specifically, ineffective assistance of trial counsel for
failing to present a defense to the special circumstance allegation based on a failure to
prove these requirements, and defendant’s sentence of life without parole violates the
Eighth and Fourteenth Amendments.
5 Defendant also raises various sentencing error claims, none of which need be
addressed in this opinion in light of our disposition remanding the matter for a new
sentencing hearing.
4
On that day, before setting out to do some apartment hunting, Thomas asked to
borrow his girlfriend’s cellphone and brought it outside to his car, a Cadillac that was
parked in front of an adjacent apartment building. As Thomas sat in the driver’s seat
with the door open, defendant and Curry walked past the car. Thomas said something
that caused them to turn around. After a brief greeting, Curry asked: “Do you know
anybody who sells weed?” Thomas answered: “Yeah, I got it.” Thomas then sold Curry
some marijuana. While defendant did not participate in the transaction, he saw that
Thomas “had like a lot” of the substance. As defendant and Curry walked away from the
Cadillac, Curry asked defendant whether he had “seen the weed” and “how much money
he had.” Curry then said he wanted to rob him.
Before describing how Curry went about setting up the robbery that would end
Thomas’s life, we take a brief detour into how defendant and Curry came to be in that
parking lot in the first place. Defendant and Curry lived in Richmond. Defendant was 18
years old. Curry was about the same age. On the Friday night before the murder, they
went to a party in Concord, where they ran into Larron Peterson and Jammell Harris.
Peterson and Harris were also from Richmond, but lived in Sacramento, in separate
apartments in the same apartment complex where Thomas’s girlfriend lived. They were
about four years older than defendant, who looked up to them as big brother figures.
They both attended Sacramento City College.
After the party in Concord, which ended abruptly because of an unrelated fight
that escalated into a shooting, defendant found out that the person who drove him and
Curry to the party had already left. He asked Peterson for a ride back to Richmond.
Peterson said he was going to Sacramento, but defendant and Curry could join him. They
agreed, primarily because there were “three or four girls” in Peterson’s car. In all, about
seven people piled into the car to head to Sacramento. Harris left the party separately
with his brother, a friend named Joseph Potter, and two girls. They also drove to
Sacramento.
5
Defendant and Curry stayed at Peterson’s apartment over the weekend, but also
spent some time at Harris’s apartment. Peterson was “in and out” of the apartment all
weekend.
On Monday, the day of the murder, defendant and Curry were in Peterson’s
apartment with some of Peterson’s friends. Peterson was not home. Someone asked
defendant and Curry whether they smoked marijuana. They said they did, but no one in
the apartment had any, so either defendant or Curry asked: “Don’t nobody sell weed
around here?” No one knew where to get some, so defendant and Curry decided to leave
the apartment on foot in search of someone who sold the substance. This was when they
ran into Thomas in the Cadillac. In addition to buying the marijuana from Thomas,
Curry also took down the number for Thomas’s girlfriend’s cell phone. As previously
mentioned, after making the purchase, on their way back to Peterson’s apartment, Curry
expressed interest in the amount of marijuana and money Thomas had and told defendant
that he wanted to rob him.
Back at Peterson’s apartment, they smoked the marijuana with Peterson’s friends
and Curry again brought up robbing Thomas. According to defendant, he initially
thought Curry was joking, but realized he was serious the more he talked about it.
During the course of the day, Peterson and Potter, who also attended Sacramento City
College, came in and out of the apartment; they apparently had class that day. Curry did
not discuss his plan to rob Thomas while they were there.
That evening, Peterson, Harris, and Potter had plans to meet up with some girls at
a different apartment complex a short distance away. They met at Harris’s apartment
sometime before 6:00 p.m. Peterson brought defendant and Curry over to Harris’s
apartment, but they were not part of the plan to meet up with the girls. Two other friends
of Peterson and Harris were also there, one of whom defendant knew as “Tone.”
Defendant claimed he did not know the other person’s name, but referred to him as
“Rob” later in his testimony. We also refer to them by these names.
6
At Harris’s apartment, Curry again brought up robbing Thomas. The plan was
simple. Curry said he would call Thomas to buy some more marijuana, and “once he
came outside, he was gonna rob him.” Curry said that defendant was going to participate
and wanted to know who else was in. According to defendant, he never agreed to rob
Thomas, and did not understand why Curry said he would, but defendant also did not
dispute Curry’s statement. Peterson responded to Curry’s inquiry with: “I have a
daughter. I’m not doing this.” Potter said he was also out because, as he put it, “I don’t
even know y’all.” As defendant explained during his trial testimony, because people
“began giving excuses” as to why they could not participate, he thought he also needed
an excuse, so he said: “I don’t have a gun. I’m not going.” In response, Potter retrieved
a shotgun from Harris’s closet and gave it to defendant, who then said he “didn’t want
any bullets in the shotgun” if he was going to participate. Potter then showed defendant
it was unloaded and handed the shotgun back to him.6 Harris did not say anything during
the conversation. Tone also kept quiet, while Rob indicated he would participate.7
About thirty minutes later, defendant, Curry, Tone, and Rob went back to
Peterson’s apartment while Peterson, Harris, and Potter went to meet up with the girls.
Curry told defendant and the others where to stand when Thomas came outside for the
purported marijuana buy and then asked whether everyone was ready. Defendant did not
6 Potter denied this during his testimony. He claimed he saw a shotgun in Harris’s
closet on Sunday when he was putting a blanket away. After picking the weapon up,
defendant saw the shotgun and said, “Hey, let me see that.” Potter then gave defendant
the gun and went into Harris’s bedroom. Potter also testified that he stopped by
Peterson’s apartment to pick up a sweatshirt on the same day. While he did not see
defendant or Curry there, he claimed he overheard their voices in another room “talking
about robbing somebody.”
7 Defendant testified that he felt “[b]etrayed” by Harris and Peterson because he
viewed them as older brother figures and, as defendant put it, “for them to sit there and
go along with this and not even try to stand up for me or speak up for me, it hurt.”
7
say anything, but the other two said they were and walked out of the apartment with
Curry. Defendant stayed behind. As he explained during both his trial testimony and
statement to police, defendant hoped they would “get the hint” that he did not want to be
involved, but a short time later, Curry called defendant and said: “Come on, I’m waiting
on you,” and “Don’t be a little bitch.”8 Defendant then joined Curry and the other two
outside. Defendant had the unloaded shotgun in his pant leg; Curry was armed with a
loaded .40-caliber handgun.
Meanwhile, Thomas and his girlfriend spent the afternoon looking at apartments.
They returned to her apartment at about 6:00 p.m. When they got back, Thomas’s
girlfriend saw that she had three missed calls. These calls were from Curry. When she
called the number back, Curry answered and asked to speak to Thomas. After handing
the phone to Thomas, she was able to hear Curry ask for “an eighth of weed.” Thomas
said “okay.” He then bagged up the marijuana and retrieved a .38-caliber handgun from
his car. About 30 minutes later, Thomas’s girlfriend received another call from Curry,
again gave the phone to Thomas, and heard Curry say that he “would be waiting outside
by his car.” Before heading outside to make the sale, Thomas told his girlfriend that he
“didn’t really trust these guys,” but he “needed to go make some money.” Within two
minutes of Thomas walking outside, his girlfriend heard yelling and multiple gunshots.
She ran outside to find Thomas’s motionless body on the ground next to his car.
As defendant described the robbery murder during his statement to detectives,
Curry was standing behind Thomas’s car when defendant walked out to join him. Tone
was looking inside a window of Thomas’s girlfriend’s apartment, “to see how many
dudes is in there,” and then walked over to a curb to wait for the robbery to conclude.
8 There is evidence that defendant is the one who made the call to Curry. However,
regardless of who made the call to whom, there is no evidence contradicting defendant’s
account of what was said.
8
When defendant got to the car, Curry made the call to tell Thomas to come outside.
Moments later, Thomas walked over to the car to make the sale. As Thomas approached,
he reached for his waistband. Curry then pulled out his handgun and defendant also
pulled out the shotgun. Defendant could see the handle of Thomas’s gun when he did so.
Instead of pulling out his gun, Thomas put his hands up. Curry then said “give me this,”
grabbed a necklace from Thomas’s neck, extended his handgun, and fired two rounds
into Thomas’s chest.
Defendant ran when the first round was fired, but heard additional rounds being
fired as he ran. Curry also ran after shooting Thomas, but not before taking his gun.
Defendant and Curry ran towards the back of the apartment complex and eventually went
to Harris’s apartment, where defendant left the shotgun. We need not recount their
subsequent activities, except to note that Curry stayed at Harris’s apartment that night,
while defendant stayed at Peterson’s apartment. As defendant explained during his trial
testimony, he was angry at Curry for shooting Thomas and for involving defendant in the
robbery.
Meanwhile, police and emergency medical personnel arrived at the crime scene.
Thomas was dead upon their arrival. He died of two gunshot wounds to the chest, either
of which would have been fatal, and both of which were fired from less than an inch
away. A third gunshot wound was also inflicted to Thomas’s left arm. Consistent with
these autopsy findings, and defendant’s account of events, three .40-caliber shell casings
were found near Thomas’s body. A small plastic bag containing marijuana was also
found near his body. A small amount of cash was found in Thomas’s pant pocket and a
gold necklace was found in a pool of blood after the body was rolled over.
After talking to Thomas’s girlfriend, police were able to track the cell phone Curry
used to set up the marijuana buy to Harris’s apartment, where Curry was arrested the
following morning. Curry’s .40-caliber handgun, the .38-caliber handgun he took from
Thomas, magazines and ammunition for each, and the shotgun used by defendant during
9
the robbery, were recovered during a search of that apartment. A subsequent ballistics
analysis confirmed the .40-caliber handgun fired the shell casings recovered from the
crime scene. Curry’s fingerprints were also found on that weapon.
Defendant, who received a ride back to Richmond the day after the murder, was
arrested the following month. He was thereafter interviewed by detectives, and after
initially claiming he and Curry were simply trying to buy marijuana from Thomas,
confessed to participating in the robbery that resulted in Thomas’s death.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends the evidence is insufficient to support his felony-murder
conviction because the evidence does not support newly enacted requirements that
defendant was a major participant in the robbery, and that he acted with reckless
indifference to human life, as those requirements are elucidated in Banks, supra, 61
Cal.4th 788, Clark, supra, 63 Cal.4th 522, and Scoggins, supra, 9 Cal.5th 667. Without
deciding whether the evidence supports a finding that defendant was a major participant,
we conclude the evidence falls short of establishing reckless indifference to human life.
A.
Changes in the Legal Landscape Applicable to this Issue
“Murder is the unlawful killing of a human being . . . with malice aforethought.”
(§ 187, subd. (a).) As amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 1437) (Stats. 2018, ch. 1015, § 2), effective January 1, 2019, section 188 provides in
relevant part: “[M]alice may be express or implied. [¶] (1) Malice is express when there
is manifested a deliberate intention to unlawfully take away the life of a fellow creature.
[¶] (2) Malice is implied when no considerable provocation appears, or when the
circumstances attending the killing show an abandoned and malignant heart. [¶]
(3) Except as stated in subdivision (e) of [s]ection 189, in order to be convicted of
10
murder, a principal in a crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a crime.” (§ 188,
subd. (a).)
Section 189 describes a number of unlawful killings that are statutorily defined as
“murder of the first degree,” including a killing “committed in the perpetration of, or
attempt to perpetrate, [certain listed felonies, including] robbery.” (§ 189, subd. (a).)
This form of first degree murder, known as first degree felony murder, does not require
malice. At the time of defendant’s trial, prior to Senate Bill 1437, “ ‘the only criminal
intent required [was] the specific intent to commit the particular felony.’ ” (People v.
Dillon (1983) 34 Cal.3d 441, 475.)
Effective January 1, 2019, Senate Bill 1437 amended the felony-murder rule to
provide, in relevant part: “A participant in the perpetration or attempted perpetration of a
felony listed in subdivision (a) in which a death occurs is liable for murder only if one of
the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was
not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in the commission of murder in
the first degree. [¶] (3) The person was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in subdivision (d) of [s]ection
190.2” (§ 189, subd. (e).)
Thus, at the time of defendant’s trial, the only mental state required for conviction
of first degree felony murder was defendant’s intent to commit the robbery against
Thomas. Now, since defendant was not the actual killer and did not intend to kill
Thomas, in order to convict him of felony murder, the prosecution was required to prove
that he was a major participant in the robbery and acted with reckless indifference to
human life. However, as alluded to in section 189, subdivision (e), proof of these major
participant and reckless indifference elements was already required to prove the felony-
murder special circumstance set forth in section 190.2, subdivision (d), found true by the
11
jury in this case.9 But what was not clear at the time of defendant’s trial was the scope of
the major participant and reckless indifference elements. Our Supreme Court clarified
that scope in Banks and Clark, and provided further guidance in Scoggins, discussed in
detail below. (See People v. Strong (2022) 13 Cal.5th 698, 703 [Banks and Clark “for the
first time provided substantial guidance on the meaning of the two relevant statutory
phrases”].)
As noted previously, we asked the parties for supplemental briefing on what
impact, if any, these decisions have on the sufficiency of the evidence supporting
defendant’s special circumstance finding. We directed the question towards the special
circumstance finding because it was settled that the changes to the law made by Senate
Bill 1437 did not apply retroactively on direct appeal. (See People v. Gentile (2020) 10
Cal.5th 830, 851-852 [“ameliorative provisions of Senate Bill 1437 do not apply on direct
appeal to nonfinal convictions obtained before the law became effective”].) Thus, while
defendant could challenge the special circumstance finding on direct appeal as
unsupported by substantial evidence following Banks, Clark, and Scoggins, he could not
challenge his murder conviction based on Senate Bill 1437’s changes to the felony-
murder rule.
Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) (Stats. 2021,
ch. 551, § 2), effective January 1, 2022, changed this by amending former section
1170.95 to allow “[a] person convicted of murder, attempted murder, or manslaughter
9 This subdivision provides, in relevant part, “every person, not the actual killer,
who, with reckless indifference to human life and as a major participant, aids, abets,
counsels, commands, induces, solicits, requests, or assists in the commission of a felony
enumerated in paragraph (17) of subdivision (a) which results in the death of some person
or persons, and who is found guilty of murder in the first degree therefor, shall be
punished by death or imprisonment in the state prison for life without the possibility of
parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been
found to be true under Section 190.4.” (§ 190.2, subd. (d).)
12
whose conviction is not final [to] challenge on direct appeal the validity of that
conviction based on the changes made to [s]ections 188 and 189 by Senate Bill 1437.”
(Former § 1170.95, subd. (g); Stats. 2021, ch. 551, § 2.)10 In light of this new enactment,
defendant focuses his supplemental brief on the validity of his felony-murder conviction,
rather than the special circumstance finding, arguing this conviction is unsupported by
substantial evidence, and in the alternative, reversal is also required because the jury was
not instructed on the new major participation and reckless indifference elements.
Regardless of whether sufficiency of the evidence, or rather instructional error, is
the proper vehicle for defendant’s challenge to his felony-murder conviction (see People
v. Hola (2022) 77 Cal.App.5th 362, 373 (Hola) [rejecting the argument that “the
Legislature intended to allow challenges for insufficiency of the evidence in allowing
defendants to ‘challenge on direct appeal the validity’ of their murder conviction under
the Senate Bill 1437 amendments”]), we must nevertheless assess the sufficiency of the
evidence supporting the special circumstance. Specifically, does the evidence support a
finding that defendant was a major participant who acted with reckless indifference to
human life, as those statutory phrases were clarified in Banks, Clark, and Scoggins? We
now discuss those decisions.
B.
Banks, Clark, and Scoggins
In Banks, supra, 61 Cal.4th 788, our Supreme Court interpreted section 190.2,
subdivision (d), explaining that subdivision “was designed to codify the holding of Tison
v. Arizona (1987) 481 U.S. 137, which articulates the constitutional limits on executing
felony murderers who did not personally kill. Tison and a prior decision on which it is
based, Enmund v. Florida (1982) 458 U.S. 782, collectively place conduct on a spectrum,
10 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no
change in text (Stats. 2022, ch. 58, § 10).
13
with felony-murder participants eligible for death only when their involvement is
substantial and they demonstrate a reckless indifference to the grave risk of death created
by their actions.” (Banks, at p. 794.) Beginning with Enmund, our Supreme Court
explained the high court reversed a death sentence where the defendant, Enmund, was the
getaway driver in a planned armed robbery that resulted in the unplanned murder of the
robbery victim and his wife. “The court found a broad consensus against imposing death
in cases ‘where the defendant did not commit the homicide, was not present when the
killing took place, and did not participate in a plot or scheme to murder.’ [Citation.]
Accordingly, it held the Eighth Amendment bars the death penalty for any felony-murder
aider and abettor ‘who does not himself kill, attempt to kill, or intend that a killing take
place or that lethal force will be employed.’ [Citation.] The intent to commit an armed
robbery is insufficient; absent the further ‘intention of participating in or facilitating a
murder’ [citation], a defendant who acts as ‘the person in the car by the side of the road at
the time of the killings, waiting to help the robbers escape’ [citation] cannot
constitutionally be sentenced to death.” (Id. at p. 799.)
Turning to Tison v. Arizona, supra, 481 U.S. 137 (Tison), our Supreme Court
explained the high court upheld death sentences where the defendants, Ricky and
Raymond Tison, along with a third brother, “helped plan and carry out the escape of two
convicted murderers from prison,” including their father, Gary Tison, who “was serving a
life sentence for killing a guard in the course of a previous escape.” (Banks, supra, 61
Cal.4th at p. 802.) The Tison brothers brought “a cache of weapons to prison, arm[ed]
both murderers, and [held] at gunpoint guards and visitors alike.” (Ibid.) “During the
subsequent escape, their car, already down to its spare tire, suffered another flat, so [they]
agreed to flag down a passing motorist in order to steal a replacement car. Raymond
waved down a family of four; the others then emerged from hiding and captured the
family at gunpoint. Raymond and [the third brother] drove the family into the desert in
the Tisons’ original car with the others following. Ricky and [his father’s] cellmate
14
removed the family’s possessions from their car and transferred the Tison gang’s
possessions to it; Gary and his cellmate then killed all four family members.” (Id. at
p. 799.)
After “endorsing Enmund’s holding that the Eighth Amendment limits the ability
of states to impose death for ‘felony murder simpliciter[,]’ . . . Tison described the range
of felony-murder participants as a spectrum. At one extreme were people like ‘Enmund
himself: the minor actor in an armed robbery, not on the scene, who neither intended to
kill nor was found to have had any culpable mental state.’ [Citation.] At the other
extreme were actual killers and those who attempted or intended to kill. [Citation.]
Under Enmund, Tison held, death was disproportional and impermissible for those at the
former pole, but permissible for those at the latter. [Citation.] The Supreme Court then
addressed the gray area in between, the proportionality of capital punishment for felony-
murder participants who, like the two surviving Tison brothers, fell ‘into neither of these
neat categories.’ [Citation.] Here, the court announced, ‘major participation in the
felony committed, combined with reckless indifference to human life, is sufficient to
satisfy the Enmund culpability requirement.’ [Citation.] This is the language the
electorate codified in section 190.2[, subdivision ](d).” (Banks, supra, 61 Cal.4th at
p. 800.)
Elaborating on the actus reas requirement of major participation, our Supreme
Court endorsed a “gloss” placed on that phrase by this court in People v. Proby (1998) 60
Cal.App.4th 922, i.e., “that a defendant must have been actively and substantially
involved in the events leading up to a murder,” but further explained: “A sentencing
body must examine the defendant’s personal role in the crimes leading to the victim’s
death and weigh the defendant’s individual responsibility for the loss of life, not just his
or her vicarious responsibility for the underlying crime.” (Banks, supra, 61 Cal.4th at
p. 801.) The court then set forth the following factors to be used in determining whether
or not a “defendant’s participation ‘in criminal activities known to carry a grave risk of
15
death’ [citation] was sufficiently significant to be considered ‘major’ [citations]” 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? No
one of these considerations is necessary, nor is any one of them necessarily sufficient.
All may be weighed in determining the ultimate question . . . .” (Banks, at p. 803, fn.
omitted.)
Applying this multifactor test to the facts in Banks, the court held the evidence
was not sufficient to support a robbery-murder special-circumstance finding as to one of
the defendants, Matthews, who was the getaway driver for an armed robbery during
which another defendant, Banks, shot and killed one of the robbery victims. (Banks,
supra, 61 Cal.4th at pp. 804-805.) The court explained: “The evidence in the record
places Matthews at the Enmund pole of the Tison–Enmund spectrum. Indeed, as
Matthews argues, his conduct is virtually indistinguishable from Earl Enmund’s. No
evidence was introduced establishing Matthews’s role, if any, in planning the robbery.
No evidence was introduced establishing Matthews’s role, if any, in procuring weapons.
Matthews and two confederates—though not the shooter—were gang members, but, in
contrast to the convicted murderers the Tison brothers chose to free and arm, no evidence
was introduced that Matthews[ or these confederates] had themselves previously
committed murder, attempted murder, or any other violent crime. The crime itself was an
armed robbery; Enmund and Tison together demonstrate that participation in an armed
robbery, without more, does not involve ‘engaging in criminal activities known to carry a
grave risk of death.’ [Citation.] During the robbery and murder, Matthews was absent
16
from the scene, sitting in a car and waiting. There was no evidence he saw or heard the
shooting, that he could have seen or heard the shooting, or that he had any immediate role
in instigating it or could have prevented it.” (Id. at p. 805, fn. omitted.) The court
concluded that “Matthews was, in short, no more than a getaway driver, guilty like Earl
Enmund of ‘felony murder simpliciter’ [citations] but nothing greater,” and therefore,
“the evidence was insufficient to . . . find the special circumstance true.” (Ibid.)
Finally, with respect to the mens rea requirement of reckless indifference to
human life, the court explained that “Tison, and in turn section 190.2[, subdivision ](d),
look to whether a defendant has ‘ “knowingly engag[ed] in criminal activities known to
carry a grave risk of death.” ’ [Citations.] The defendant must be aware of and willingly
involved in the violent manner in which the particular offense is committed,
demonstrating reckless indifference to the significant risk of death his or her actions
create.” (Banks, supra, 61 Cal.4th at p. 801.) Holding the evidence was also insufficient
to establish this mental state, the court explained: “There was evidence from which the
jury could infer Matthews knew he was participating in an armed robbery. But nothing at
trial supported the conclusion beyond a reasonable doubt that Matthews knew his own
actions would involve a grave risk of death. There was no evidence Matthews intended
to kill or, unlike the Tisons, knowingly conspired with accomplices known to have killed
before. Instead, as in Enmund, Banks’s killing of [the victim] was apparently a
spontaneous response to armed resistance from the victim.” (Id. at p. 807, italics added.)
In Clark, supra, 63 Cal.4th 522, our Supreme Court vacated special circumstance
findings where the defendant was not merely guilty of felony murder simpliciter, but was
rather “the mastermind who planned and organized the attempted robbery and who was
orchestrating the events at the scene of the crime.” (Id. at p. 612.) There, the defendant
and his brother and cousin conducted surveillance of a computer store, studying the
number of employees and their activities around closing time. Defendant also secured
use of a U-Haul truck by having another person rent the truck using a false driver’s
17
license defendant helped her procure. (Id. at pp. 536, 612.) The plan was for one man,
Ervin, to enter the store around closing time with a gun, which was “apparently
[supposed] to be unloaded,” and handcuff the remaining employees in the restroom so no
one could call the police. (Id. at p. 613, fn. omitted.) Then, while defendant sat in the
parking lot in a BMW, his brother and another man, who apparently believed the store
belonged to defendant, were to help Ervin remove computers from the store and load
them into the U-Haul, which was parked nearby. However, before any computers could
be removed, the mother of one of the handcuffed employees came into the store. Ervin
shot her in the head and fled to defendant’s car. Defendant drove away, leaving Ervin to
be arrested in the parking lot by an officer who heard the gunshot while on patrol near the
store. The gun Ervin used to murder the victim had been loaded with one bullet. (Id. at
pp. 536-538, 613.)
Beginning with “the Banks factors concerning major participation,” the court
stated: “[W]e can conclude that defendant had a prominent, if not the most prominent,
role in planning the criminal enterprise that led to the death of [the victim]. No evidence
was presented about defendant’s role in supplying the weapon, although inferences can
be drawn from [the evidence] that use of a weapon was part of his plan for the robbery.
No evidence was presented about defendant’s awareness of the particular dangers posed
by the crime, beyond his concern to schedule the robbery after the store’s closing time.
No evidence was presented about his awareness of the past experience or conduct of
Ervin, the shooter. Defendant was in the area during the robbery, orchestrating the
second wave of the burglary after Ervin secured the store, but defendant was not in the
immediate area where Ervin shot [the victim].” (Clark, supra, 63 Cal.4th at pp. 613-
614.) The court then noted that it previously upheld a major participant finding where
“the defendant, although not present at the murder, was ‘the founder, ringleader and
mastermind behind’ a criminal gang engaged in carjacking,” and gave “his subordinate
gang members . . . ‘a carjacking tutorial and instructed them that a resisting victim was to
18
be shot.’ ” (Id. at p. 614, quoting People v. Williams (2015) 61 Cal.4th 1244, 1281.)
However, the court declined to decide whether or not the defendant qualified as a major
participant under the Banks factors, concluding instead “the evidence was insufficient to
support that he exhibited reckless indifference to human life.” (Clark, at p. 614.)
Before assessing the evidence supporting this mens rea element, the court noted
the two elements are interrelated such that “ ‘the greater the defendant’s participation in
the felony murder, the more likely that he acted with reckless indifference to human
life.’ ” (Clark, supra, 63 Cal.4th at p. 615, quoting Tison, supra, 481 U.S. at p. 153.) At
the same time, even significant participation in an armed robbery does not necessarily
entail possession of that mental state. (Clark, at pp. 616-617.) Instead, the reckless
indifference defined in Tison “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.” (Id. at p. 617.) The court then explained that the
Model Penal Code’s definition of recklessness contains subjective and objective
elements: “The subjective element is the defendant’s conscious disregard of risks known
to him or her. But recklessness is not determined merely by reference to a defendant’s
subjective feeling that he or she is engaging in risky activities. Rather, recklessness is
also determined by an objective standard, namely what ‘a law-abiding person would
observe in the actor’s situation.’ [Citation.]” (Ibid.)
The court then applied the following factors to the facts before it in determining
whether or not the defendant was recklessly indifferent to human life within the meaning
of section 190.2, subdivision (d): Did the defendant know a gun would be used and/or
personally use a gun during the robbery? Was the defendant physically present at the
scene of the murder, and therefore provided with an opportunity to restrain the murderer
or aid the victim? What was the duration of the interaction between the perpetrators and
the victims? Did the defendant have knowledge of his or her cohort’s likelihood of
killing? Did the defendant apparently take steps to minimize the risk of violence? The
19
first four factors were culled from case law; the fifth was added as a matter of first
impression. (Clark, supra, 63 Cal.4th at pp. 618-622.)
With respect to the latter factor, the court explained: “If the evidence supports an
argument that defendant engaged in efforts to minimize the risk of violence in the felony,
defendant may raise that argument and the appellate court shall consider it as being part
of all the relevant circumstances that considered together go towards supporting or failing
to support the jury’s finding of reckless indifference to human life. But the existence of
evidence that defendant made some effort to minimize the risk of violence does not, in
itself, necessarily foreclose a finding that defendant acted with reckless indifference to
human life . . . .” (Clark, supra, 63 Cal.4th at p. 622.) This is because, as noted above,
recklessness has both subjective and objective elements. Thus, “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
under Tison.” (Ibid.)
Applying these factors, the court held the evidence did not support a conclusion
the defendant was recklessly indifferent to human life. The court explained while the
defendant knew a gun would be used, that fact alone is insufficient to establish reckless
indifference. The only gun used during the attempted robbery was carried by Ervin, not
the defendant, and that gun was loaded with only one bullet. (Clark, supra, 63 Cal.4th at
pp. 618-619.) Unlike Tison, where the Tison brothers were “physically present during
the entire sequence of events culminating in the murders,” and were therefore presented
with “an opportunity to act as a restraining influence on murderous cohorts,” the
defendant in Clark was in his car in the parking lot when the victim was shot and was not
provided with such an opportunity. (Id. at p. 619.) Acknowledging “[t]he jury may have
inferred that [the defendant] was aware [the victim] had been shot when he drove from
the scene,” indicating a “desire to flee the scene as quickly as possible, without regard for
[the] welfare . . . of the shooting victim,” the court nevertheless distinguished this level of
20
culpability from that of the Tison brothers because, “unlike in [Tison], defendant would
have known that help in the form of police intervention was arriving.” (Id. at p. 620.)
With respect to duration of the interaction between victims and perpetrators, the
court noted the defendant planned the robbery for closing time, when most employees
would be gone, and those who remained would be handcuffed in the bathroom. Thus,
while the robbery would take some time to complete, “the period of interaction between
perpetrators and victims was designed to be limited.” (Clark, supra, 63 Cal.4th at
p. 620.) At the same time, the court explained, “[b]ecause the robbery was planned for a
public space and involved the prolonged detention of employees, the crime did involve
the risk of interlopers, such as [the murder victim] . . . . But overall, the evidence was
insufficient to show that the duration of the felony under these circumstances supported
the conclusion that defendant exhibited reckless indifference to human life.” (Id. at pp.
620-621.) There was no evidence that Ervin was known to have a propensity for violence
or that the defendant had any knowledge of such a propensity. (Id. at p. 621.)
Finally, the court considered the defendant’s “apparent efforts to minimize the
risks of violence,” i.e., (1) the robbery was planned for closing time when most
employees would be gone, (2) the gun was apparently supposed to have been unloaded,
and (3) the gun was loaded with only one bullet (Clark, supra, 63 Cal.4th at pp. 621-
622), and concluded: “Defendant’s culpability for [the victim’s] murder resides in his
role as planner and organizer, or as the one who set the crime in motion, rather than in his
actions on the ground in the immediate events leading up to her murder. But also
relevant to his culpability as planner, there is evidence that defendant planned the crime
with an eye to minimizing the possibilities for violence. Such a factor does not, in itself,
necessarily preclude a finding of reckless indifference to human life. But here there
appears to be nothing in the plan that one can point to that elevated the risk to human life
beyond those risks inherent in any armed robbery. Given defendant’s apparent efforts to
minimize violence and the relative paucity of other evidence to support a finding of
21
reckless indifference to human life, we conclude that insufficient evidence supports the
. . . special[ ]circumstance findings, and we therefore vacate them.” (Id. at p. 623.)
In Scoggins, our Supreme Court reiterated that “[d]etermining a defendant’s
culpability under the special circumstances statute requires a fact-intensive,
individualized inquiry.” (Scoggins, supra, 9 Cal.5th at p. 683.) We need not provide as
detailed an overview of that inquiry as applied to Scoggins’s case. It will suffice to
recount the concise description provided by our colleagues at the First Appellate District
in In re Moore (2021) 68 Cal.App.5th 434 (Moore): “Although [Scoggins] planned the
robbery [citation], knew about his confederates’ violent tendencies [citation], and
instructed them ‘to “beat the shit out of” ’ the victim [citation], he did not ‘know that a
gun would be used’ [citation], ‘was not physically present at the crime scene’ [citation],
and never instructed his confederates to kill the victim [citation]. Given these mitigating
circumstances, the ‘limited’ duration of the interaction between the shooter and the
victim [citation], and the location of the robbery ‘in a public parking lot during the
daytime’ [citation], our high court held that ‘the evidence . . . “does not suggest an
elevated risk to human life beyond those risks inherent in an unarmed beating and
robbery” ’ [citation].” (Id. at p. 450.)
C.
Analysis
With the foregoing decisions in mind, we now address the sufficiency of the
evidence supporting defendant’s special circumstance finding.
“ ‘In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.]’ [Citations.] All conflicts in
the evidence and questions of credibility are resolved in favor of the verdict, drawing
every reasonable inference the jury could draw from the evidence. [Citation.] Reversal
22
on this ground is unwarranted unless ‘ “upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].” ’ [Citation.] This standard applies
whether direct or circumstantial evidence is involved. [Citation.]” (People v. Cardenas
(2015) 239 Cal.App.4th 220, 226-227.)
However, as Banks, Clark, and Scoggins reveal, when reviewing a special
circumstance finding for substantial evidence establishing major participation and
reckless indifference to human life, we must carefully assess the various factors in order
to determine the defendant’s individual level of culpability, as compared to the level of
culpability of the defendants in those cases, as well as in Enmund and Tison.
We also note at the outset that we confine our analysis to the mens rea element of
reckless indifference to human life. We express no opinion as to whether or not
defendant’s participation in this particular armed robbery was substantial enough to be
considered “major” within the meaning of Banks.
With respect to the reckless indifference element, we find Moore, supra, 68
Cal.App.5th 434 to be instructive. There, codefendants Russell and Moore, together with
an accomplice, stole a car in a mall parking lot, drove through that parking lot in search
of someone to rob, and after finding their intended targets, “[o]ne of the defendants—
presumably Russell—got out of the stolen car and robbed [the victims] at gunpoint,”
shooting one of the victims in the chest at close range without any apparent provocation.
(Id. at p. 440.) The appellate court held Moore “did not act with the requisite reckless
indifference to human life.” (Id. at p. 452.) Assessing the Clark factors, the court
explained: “Although Moore was aware that Russell had a gun, Moore did not use a gun
himself, and there was no evidence he supplied the gun to Russell. . . . [¶] Moore’s
presence during the robbery also does not support a finding of reckless indifference.
Although Moore likely saw Russell rob and shoot [the victim] while he sat in the stolen
Mazda, he never left the car. Thus, he was not ‘close enough to exercise a restraining
effect on the crime or’ Russell. [Citations.]” (Ibid, fn. omitted.) The court also noted the
23
“short duration of the robbery and the sudden and unprovoked nature of the shooting”
(ibid.), as well as the lack of evidence that Moore instructed Russell to use deadly force
(ibid.) or “ ‘knew of past violent activities on the part of Russell.’ ” (Id. at p. 453, fn.
omitted.) The court further explained that “Moore’s decision to drive away with Russell
and [their accomplice] immediately after the shooting” did not establish reckless
indifference because other people were in the parking lot, so “Moore could have
reasonably assumed that help would arrive quickly.” (Id. at p. 452.)
In addition to the Clark factors, the court held an additional relevant factor
militated against a finding of reckless indifference: Moore’s youth. Moore was 16 years
old at the time of the shooting. The court explained: “It is well recognized that
‘[c]hildren “generally are less mature and responsible than adults” ’ and ‘ “often lack the
experience, perspective, and judgment to recognize and avoid choices that could be
detrimental to them” . . . .’ [Citation.] As a result, ‘[t]he law has historically reflected the
same assumption that children characteristically lack the capacity to exercise mature
judgment and possess only an incomplete ability to understand the world around them.’
[Citation.] This is so ‘even where a “reasonable person” standard otherwise applies . . . .’
[Citation.] Thus, ‘ “the background and mental and emotional development of a youthful
defendant [must] be duly considered” in assessing his culpability.’ [Citation.]” (Moore,
supra, 68 Cal.App.5th at p. 453.) Based on these observations, the court held: “To the
extent the Clark factors discussed ante support a finding of reckless indifference for an
adult—an issue we do not decide today—those factors undoubtedly preclude such a
finding when viewed from the lens of Moore’s youth. In particular, we cannot conclude
beyond a reasonable doubt that Moore was subjectively aware that his actions created a
graver risk of death than any other armed robbery.” (Id. at p. 454, fn. omitted.)
Similarly, in In re Ramirez (2019) 32 Cal.App.5th 384 (Ramirez), the appellate
court held the evidence did not support a finding of reckless indifference to human life
where Ramirez, 19 years of age, found two handguns hidden in an abandoned house and
24
ultimately gave those guns to his two younger cohorts, E. and J., one of whom was a
gang member. After loading the guns, the trio rode their bicycles to a grocery store and
then around the neighborhood, where they encountered a friend, C., and showed him the
guns. (Id. at pp. 389-390.) C. suggested “ ‘jacking’ ” somebody, the others agreed, and
C. ultimately took possession of one of the guns. (Id. at p. 390.) While riding around, C.
pointed out the location, a bar parking lot, and then the intended target, a truck pulling
into that parking lot. Ramirez and E. stayed with the bicycles, apparently across the
street, while C. and J. attempted to rob the driver of the truck. Encountering resistance, J.
shot the driver, who died in the parking lot as Ramirez and the others fled together on the
bicycles. (Id. at pp. 390-391.)
Acknowledging that Ramirez supplied the guns, knew they were loaded, agreed to
participate in an armed robbery, and was close enough to the location of the shooting to
hear and possibly see what was going on, the court explained that there was no evidence
Ramirez was involved in any planning activity beyond agreeing to commit a robbery,
“after which he simply acquiesced in whatever [C.] said to do.” (Ramirez, supra, 32
Cal.App.5th at p. 404.) The court also rejected the Attorney General’s argument that
Ramirez “was close enough to exercise a restraining effect on the crime or his
colleagues.” (Id. at p. 405, fn. omitted.) Finally, the court explained, while Ramirez
might have known one of his cohorts was a gang member, there was no evidence that he
thereby had “knowledge of [their] likelihood of killing.” (Ibid.) The court concluded:
“There is no evidence from which it reasonably can be inferred [Ramirez] harbored a
willingness to kill, or to assist his confederates in killing, to achieve the goal of robbing
someone, or that he anticipated the potential for loss of human life beyond that usually
accompanying an armed robbery.” (Id. at pp. 405-406.)
We conclude the Clark factors similarly preclude a reckless indifference finding in
this case. The first Clark factor admittedly cuts against defendant. He knew a gun would
be used by Curry and personally used a gun of his own, although defendant made sure his
25
was unloaded. However, in discussing this factor, the Clark court was careful to point
out: “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.) Still, as the court also acknowledged, “[a] defendant’s use of a firearm . . . can
be significant to the analysis.” (Ibid.) Thus, the first factor supports a finding of reckless
indifference, although we consider defendant’s use of the shotgun in this case to be
significantly mitigated by his insistence that the gun be unloaded and refusal to
participate until it was demonstrated that the shells had in fact been removed. (See
People v. Keel (2022) 84 Cal.App.5th 546, 559 (Keel) [fact that defendant was armed
with an unloaded firearm and knew his confederate was armed “only slightly supported”
reckless indifference finding because of other mitigating circumstances].)
The second factor also cuts against defendant, but is similarly mitigated in our
view. Defendant was physically present at the scene of the murder. But, as the Clark
court explained, physical presence is “particularly significant” in a case like Tison, where
the murder was “a culmination or a foreseeable result of several intermediate steps, or
where the participant who personally commits the murder exhibits behavior tending to
suggest a willingness to use lethal force. In such cases, ‘the defendant’s presence allows
him to observe his cohorts so that it is fair to conclude that he shared in their actions and
mental state. . . . [Moreover,] the defendant’s presence gives him an opportunity to act as
a restraining influence on murderous cohorts. If the defendant fails to act as a restraining
influence, then the defendant is arguably more at fault for the resulting murders.’
[Citation.]” (Clark, supra, 63 Cal.4th at p. 619.)
Here, the murder was sudden and unexpected. Despite defendant’s presence at the
scene, there is no evidence that he was in any position to act as a restraining influence on
Curry during the mere seconds it took Curry to shoot Thomas. With respect to this
factor, this case is very similar to Keel, in which our colleagues at the Fourth Appellate
District determined the factor was “neutral.” (Keel, supra, 84 Cal.App.5th at p. 560.)
26
There, as here, the defendant “was present at the scene of the shooting, which allowed
him to observe [the shooter’s] actions and ostensibly gave him at least some chance to act
as a moderating force.” (Ibid.) However, the court also explained: “Given the
spontaneity of the robbery in general, and of [the shooter’s] conduct in particular, we are
not persuaded [the defendant] had a meaningful opportunity to restrain [the shooter] or
intervene before he shot [the victim].” (Ibid.) Here, although the robbery was not a
spontaneous event, Curry’s decision to shoot Thomas certainly was.
Moreover, while presence and failure to render aid to the victim was also noted in
Tison, defendant’s flight from the scene is as easily reconcilable with shock and fear as it
is with callous indifference. Nor is there any indication in this record that offering aid to
Thomas, who was shot twice in the chest, would have done any good. Like Clark, and
unlike Tison, it is “difficult to infer [defendant’s] frame of mind concerning [Thomas’s]
death” from the fact that he ran when Curry pulled the trigger. (Clark, supra, 63 Cal.4th
at p. 620.)
The third factor, duration of the felony, weighs in defendant’s favor. There was
no “prolonged period of restraint” of Thomas by defendant or Curry, thereby creating “ ‘a
greater window of opportunity for violence’ [citation], possibly culminating in murder.”
(Clark, supra, 63 Cal.4th at p. 620.) The plan was simply to rob Thomas when he
reached his car. No prolonged detention or restraint was envisioned. And within seconds
of the commencement of the robbery, Curry spontaneously decided to shoot him. This
factor does not suggest reckless indifference to human life on the part of defendant. (See
Scoggins, supra, 9 Cal.5th at p. 681; see also Keel, supra, 84 Cal.App.5th at p. 561.) The
Attorney General argues otherwise, noting that “Curry spent the entire day of the murder
planning the robbery” and defendant had the same amount of time to decide whether or
not to participate. But it is not the duration of the planning that matters for this factor. It
is the duration of the felony. No one is in danger of being killed while a robbery is being
planned. That danger begins once the robbery commences. The longer a robbery takes
27
to complete, the more danger is involved. Here, the planned robbery was to be short, and
the robbery’s duration was cut even shorter by Curry’s impulsive decision to shoot
Thomas.
The fourth factor is whether defendant possessed knowledge of Curry’s likelihood
of killing. In support of this factor, the Attorney General points to defendant’s testimony
that he was afraid to say no to Curry because Curry had a gun and defendant therefore
felt like he had no choice but to participate in the robbery, as well as another witness’s
testimony that Curry and defendant had fought on a previous occasion, although
defendant testified that he got the better of Curry during that physical exchange. None of
this testimony supports a finding that defendant knew Curry was likely to kill Thomas
during this particular robbery. This factor weighs in defendant’s favor as well.
The final Clark factor is defendant’s efforts to minimize the risks of violence
during the robbery. This factor is either a wash or also weighs in defendant’s favor.
First, contrary to the Attorney General’s position, the evidence does not support a finding
that defendant actively engaged in planning activity at all. Like Ramirez, defendant
acquiesced in Curry’s plan to rob Thomas. Nor is there any evidence in this record that
defendant’s acquiescence was anything but reluctant. And while Curry certainly did not
make any efforts to minimize the risks, we also cannot conclude this particular robbery
was significantly more dangerous than any other armed robbery. The cases cited by the
Attorney General in support of this being a “most dangerous” robbery involve home
invasion robberies (see People v. Bascomb (2020) 55 Cal.App.5th 1077, 1089; People v.
Garcia (2020) 46 Cal.App.5th 123, 146-148), whereas this one was to occur in a parking
lot of an apartment complex. Despite Thomas’s vocation as a drug dealer, we do not
believe that fact alone elevated the risks to the extent that defendant necessarily exhibited
reckless indifference by participating. Second, defendant did mitigate the risks that his
personal participation posed by ensuring that his shotgun was unloaded. Thus, he would
not be able to shoot Thomas even if the robbery went sideways and the need to defend
28
himself arose. As our Supreme Court has made clear, it is the defendant’s “individual
culpability” (Banks, supra, 61 Cal.4th at p. 801) that is at issue here.
We also agree with Moore’s conclusion that youth is a relevant factor in this
analysis. This factor also weighs against a finding of reckless indifference. While Moore
involved a minor, and defendant was 18 years old at the time of the shooting, he is still a
youthful offender. Indeed, in extending youth offender parole provisions to offenders
under the age of 26 when they committed their crimes (see Stats. 2017, ch. 675, § 1), “the
Legislature cited ‘[r]ecent neurological research show[ing] that cognitive brain
development continues well beyond age 18 and into early adulthood.’ [Citations.]” (In
re Williams (2020) 57 Cal.App.5th 427, 432.) Defendant’s conduct in this case is a prime
example. As we explain later in this opinion, there was no actual duress exerted upon
defendant by Curry in this case, as that defense is defined in the law. But this does not
mean that defendant did not believe he had to join Curry in robbing Thomas unless he
could come up with an adequate excuse not to do so. So he came up with one: Curry
was planning an armed robbery, and defendant did not have a gun. When a gun was
provided to him, and that excuse evaporated, he came up with another excuse: he did not
want to participate if the gun was loaded. But when the shells were removed, defendant
ran out of excuses and felt he had to participate. And there is no evidence in the record
contradicting defendant’s account of his thought process. As in Moore, even if the Clark
factors otherwise support a finding of reckless indifference, “we cannot conclude beyond
a reasonable doubt that [defendant] was subjectively aware that his actions created a
graver risk of death than any other armed robbery.” (Moore, supra, 68 Cal.App.5th at
p. 454, fn. omitted; see also Keel, supra, 84 Cal.App.5th at p. 562 [the defendant’s “youth
bears significantly on his culpability”].)
Also instructive is In re McDowell (2020) 55 Cal.App.5th 999 (McDowell).
Indeed, this case is perhaps the most instructive because it cuts in the other direction,
finding sufficient evidence of reckless indifference to human life, in a case the court
29
acknowledged “may be close to the line.” (Id. at p. 1015.) There, McDowell and
Hutchison planned and executed a home invasion robbery of a drug dealer, Meehan.
McDowell was armed with a knife and Hutchison was armed with a handgun when they
entered Meehan’s home and demanded money and/or drugs. When Meehan said he did
not have anything, Hutchison fired a warning shot into the floor. Meehan then told
Hutchison to go ahead and kill him. Two guests were also at Meehan’s home at the time.
One of them told Hutchison not the hurt Meehan, while the other picked up an object and
struck McDowell, knocking him down. Meehan then tried to grab Hutchison’s gun,
causing Hutchison to shoot him twice in the chest. (Id. at p. 1005.)
Concluding the evidence supported a finding that McDowell acted with reckless
indifference to human life, the court first accepted McDowell’s statement that he did not
know Hutchison had a gun, but pointed out McDowell himself was armed with a knife,
and he necessarily knew Hutchison had a gun at least by the time the warning shot was
fired. (McDowell, supra, 55 Cal.App.5th at p. 1013.) The court also emphasized that
McDowell both planned and actively participated in “a crime with a particularly high risk
of violence—a home invasion robbery of a drug dealer.” (Ibid.) The court further found
McDowell took no steps to minimize the “obvious risks of lethal violence” such a plan
entailed. (Id. at p. 1013; see id. at p. 1014.) Finally, the court also relied on McDowell’s
presence at the scene of the murder and failure to take any steps to prevent it.
Specifically, when Hutchison fired the warning shot and Meehan responded with a dare,
“there was a brief but critical opportunity for McDowell to say or do something to
deescalate the situation,” but he did not. (Id. at p. 1014.) However, as we have already
noted, the court also acknowledged “this case may be close to the line” given how fast
the events unfolded once McDowell and Hutchison entered the home and the lack of any
evidence that McDowell knew Hutchison had a violent past. (Id. at pp. 1014-1015.)
Three important factors that existed in McDowell do not exist in this case. First,
defendant did not participate in planning the robbery of Thomas. He simply went along
30
with Curry’s plan after failing to come up with a good enough excuse to get out of it.
Second, as we have already explained, an armed robbery of a drug dealer in an apartment
complex parking lot, while admittedly dangerous, does not carry the same “particularly
high risk of violence” as a home invasion robbery of a drug dealer, where it is
“foreseeable that customers or others could be present . . . and that either the dealer
himself or his customers might be armed or high and thus more likely to resist.”
(McDowell, supra, 55 Cal.App.5th at p. 1013.) Third, unlike McDowell, there was no
brief window of opportunity for defendant to intercede to prevent Curry from shooting
Thomas twice in the chest. Thomas did not even resist. He initially reached for his
waistband, but then put his hands up. Curry fired seconds later, without any apparent
provocation. There appears to be nothing defendant could have done to prevent this
particular murder once the stage was set for the robbery.
After carefully reviewing the relevant factors, we conclude the evidence is
insufficient to establish defendant “harbored a willingness to kill, or to assist [Curry] in
killing, to achieve the goal of robbing [Thomas], or that he anticipated the potential for
loss of human life beyond that usually accompanying an armed robbery.” (Ramirez,
supra, 32 Cal.App.5th at pp. 405-406.)
D.
Remedy
The special circumstance finding must be vacated as not supported by substantial
evidence. “Retrial of the special circumstance allegation is barred.” (Ramirez, supra, 32
Cal.App.5th at p. 406; see also People v. Lewis (2008) 43 Cal.4th 415, 509, disapproved
on another ground in People v. Black (2014) 58 Cal.4th 912, 918-920; People v. Perez
(2016) 243 Cal.App.4th 863, 882.) That is the easy part.
The harder part is determining the appropriate remedy for the felony-murder
conviction. Because such a conviction also requires proof of reckless indifference to
human life, it too must be reversed. However, as stated previously, a felony-murder
31
conviction did not require such proof at the time of defendant’s trial. The new elements
of major participation and reckless indifference were added by Senate Bill 1437. The
general rule is that retrial is permitted where a new element is added to a crime or
enhancement after trial, and accordingly the prosecution did not prove the new element at
trial. As our colleagues at the Second Appellate District explained in People v. Figueroa
(1993) 20 Cal.App.4th 65 (Figueroa): “Where . . . evidence is not introduced at trial
because the law at that time would have rendered it irrelevant, the remand to prove that
element is proper and the reviewing court does not treat the issue as one of sufficiency of
the evidence.” (Id. at p. 72; see also People v. Lopez (2021) 73 Cal.App.5th 327, 343-
346 [retrial allowed after Assembly Bill No. 333 (2021-2022 Reg. Sess.) added elements
to the gang enhancement in order “to give the People the opportunity to prove the
applicability of the enhancements under the amendments to section 186.22”].)
Here, however, the prosecution did attempt to prove major participation and
reckless indifference because those elements were required to prove the special
circumstance. The evidence fell short with respect to reckless indifference, for reasons
already expressed. In these circumstances, it would make no sense to remand the matter
to allow the prosecution the opportunity to again try to prove these elements for purposes
of the murder charge, while at the same time barring retrial of the special circumstance
allegation.
Nevertheless, a different panel of this court held in Hola, supra, 77 Cal.App.5th
362, “that the availability of retrial based on a retroactive change in the law appears to
have been well settled when the Legislature enacted [former] section 1170.95,
subdivision (g), permitting a ‘challenge on direct appeal’ to ‘the validity of [a murder]
conviction’ based on Senate Bill 1437’s amendments,” and therefore, “the Legislature
must not have foreclosed the possibility of retrial . . . .” (Id. at p. 373.) Hola involved
reversal of a murder conviction that was supported by substantial evidence that the
defendant aided and abetted a gang-related assault, the natural and probable consequence
32
of which was murder. At the time of trial, this was a valid theory of murder. Not so after
Senate Bill 1437. There remained, however, a legally valid theory of murder potentially
applicable to the facts of the case, direct aiding and abetting, although the prosecutor
“expressly disclaimed the theory of direct aiding and abetting an intentional murder” and
“did not argue direct aiding and abetting implied malice murder.” (Hola, at p. 368.)
We rejected the defendant’s argument that retroactive application of Senate Bill
1437 required us to assess whether or not the record supported either of these direct
aiding and abetting theories, and if not, reverse the conviction for insufficient evidence.
(Hola, supra, 77 Cal.App.5th at p. 373.) We explained: “A postconviction change in the
law invalidating a prosecution theory is the equivalent of a trial error because it means
the jury was instructed on a legally invalid theory. [Citations.] Moreover, as our high
court has explained, the insufficient evidence rule barring retrial is ‘inapplicable’ in a
situation where the reversal is based on a postconviction change in the law: ‘The
[insufficient evidence] rule achieves its aim—i.e., of protecting the defendant against the
harassment and risks of unnecessary repeated trials on the same charge—by the device of
giving the prosecution a powerful incentive to make the best case it can at its first
opportunity. [Citation.] But the incentive serves no purpose when . . . the prosecution
did make such a case under the law as it then stood; having done so, the prosecution had
little or no reason to produce other evidence of guilt.’ [Citations.]” (Id. at pp. 375-376,
fn. omitted.) We concluded retrial on a direct aiding and abetting theory would be
permitted without assessing the evidence supporting that alternative theory because the
law at the time of trial did not require such evidence in order for the defendant to be
convicted of murder: “Whatever the reason for not introducing evidence to support other
available theories, the law did not require it, and the prosecution here made its case under
the law as it stood at trial.” (Id. at p. 376.)
Here, while the law did not require proof of major participation or reckless
indifference to prove felony murder at the time of defendant’s trial, it did require proof of
33
those elements to prove the special circumstance. Thus, far from having “ ‘little or no
reason’ ” (Hola, supra, 77 Cal.App.5th at p. 375) to produce evidence of these elements,
the prosecution had reason to do so. More importantly, it did do so. We presume it put
forward its best case on these elements and fell short. While we have no issue with
Hola’s conclusion on the facts of that case, we conclude it, and the cases on which it
relies, are distinguishable.
The felony-murder conviction in this case is not supported by substantial evidence
and defendant may not be retried for Thomas’s murder under the felony-murder theory.
II
Defense Request to Instruct on Duress
Defendant contends the trial court prejudicially erred and violated his federal
constitutional rights by denying a defense request to instruct the jury on the defense of
duress. We disagree.
Section 26 provides in relevant part that the following persons are not capable of
committing a crime: “Persons (unless the crime be punishable with death) who
committed the act or made the omission charged under threats or menaces sufficient to
show that they had reasonable cause to and did believe their lives would be endangered if
they refused.” (§ 26, class Six.)
“The defense of duress . . . requires that the threat or menace be accompanied by a
direct or implied demand that the defendant commit the criminal act charged.” (People v.
Steele (1988) 206 Cal.App.3d 703, 706.) Additionally, the defense applies “only when
the [defendant] responds to an immediate and imminent danger” such that he or she “has
no time to formulate what is a reasonable and viable course of conduct nor to formulate
criminal intent.” (People v. Heath (1989) 207 Cal.App.3d 892, 900.)
In accordance with these principles, CALCRIM No. 3402 states:
“The defendant is not guilty of ____________ if (he/she) acted
under duress. The defendant acted under duress if, because of threat or menace, (he/she)
34
believed that (his/her/ [or] someone else’s) life would be in immediate danger if (he/she)
refused a demand or request to commit the crime[s]. The demand or request may have
been express or implied.
“The defendant’s belief that (his/her/ [or] someone else’s) life was in immediate
danger must have been reasonable. When deciding whether the defendant’s belief was
reasonable, consider all the circumstances as they were known to and appeared to the
defendant and consider what a reasonable person in the same position as the defendant
would have believed.
“A threat of future harm is not sufficient; the danger to life must have been
immediate.” (CALCRIM No. 3402.)
The trial court refused defense counsel’s request to provide this instruction,
explaining: “The requirements of [CALCRIM No.] 3402 and of a duress defense require
a couple of elements, neither of which is present.” The first requirement the trial court
found lacking was reasonableness of defendant’s purported belief that his life was in
danger if he did not participate in the robbery. The second requirement the trial court
found lacking was immediacy of the threat.
We agree with the trial court’s assessment. Having already set forth the facts of
defendant’s participation in the armed robbery, including the pressure exerted on him by
Curry to not “be a little bitch,” we decline to provide an exhaustive recap. We conclude
that the evidence does not support a conclusion that defendant reasonably believed his
life was in immediate danger if he stood up to Curry and refused to participate.
III
Ineffective Assistance of Counsel
Defendant also claims his defense counsel provided constitutionally deficient
assistance by pursuing a duress defense without first determining whether or not the trial
court would instruct the jury on that defense. We are not persuaded.
35
“A criminal defendant’s federal and state constitutional rights to counsel
[citations] include the right to effective legal assistance. When challenging a conviction
on grounds of ineffective assistance, the defendant must demonstrate counsel’s
inadequacy. To satisfy this burden, the defendant must first show counsel’s performance
was deficient, in that it fell below an objective standard of reasonableness under
prevailing professional norms. Second, the defendant must show resulting prejudice, i.e.,
a reasonable probability that, but for counsel’s deficient performance, the outcome of the
proceeding would have been different. When examining an ineffective assistance claim,
a reviewing court defers to counsel’s reasonable tactical decisions, and there is a
presumption counsel acted within the wide range of reasonable professional assistance. It
is particularly difficult to prevail on an appellate claim of ineffective assistance. On
direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation. All other claims of ineffective assistance are
more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57
Cal.4th 986, 1009.)
The decision to pursue one defense over another is clearly a tactical decision. (See
People v. Haskett (1982) 30 Cal.3d 841, 853.) Defendant’s trial counsel was not asked
for his reasoning with respect to pursuing duress as a defense in this case. We note,
however, that counsel informed the trial court on the first day of trial that he intended to
call a defense expert who was expected to testify in support of the theory that defendant
acted under duress. The next day, counsel told the trial court that he only recently
considered duress as a defense, and before then, “[his] whole line of defense from the
beginning was another defense.” What this previous defense was, and why counsel
decided to abandon it, is not revealed by the record, except that counsel began to “sort of
question” whether that prior defense theory would “succeed” because he was “always
36
having a problem with it.” The trial court expressed some skepticism with respect to
“whether a duress defense would lie.” However, the following day, the trial court
informed counsel that he would be permitted to present evidence supporting a duress
defense, including defendant’s testimony. The trial court reserved ruling on whether the
jury would be instructed on duress, as well as whether the defense expert would be
permitted to testify, until it heard all of the evidence supporting such a theory.
Ultimately, the expert was not permitted to testify and the jury was not instructed on the
defense.
Defendant’s testimony essentially admitted all elements of the robbery charge, but
also painted defendant in a fairly sympathetic light with respect to his reluctance to
participate. As we have already concluded, however, it did not support instruction on
duress as a defense. Defendant argues “no competent attorney would have advised his
client to testify without knowing if the defense of duress was viable.” However, we do
not know whether counsel advised defendant to testify. As the Attorney General points
out, a criminal defendant has a constitutional right to testify or decline to do so. (See
Harris v. New York (1971) 401 U.S. 222, 225; People v. Robles (1970) 2 Cal.3d 205,
215.) Thus, the record does not reveal whether defendant was testifying on counsel’s
advice in order to pursue duress as a defense, or whether defendant intended to testify
regardless of counsel’s advice.
In any event, regardless of whether defendant testified, his statement to police
would have been admitted into evidence, and this conveyed the same basic set of facts.
On these facts, we are not entirely sure what counsel should have done. Evidence of
defendant’s guilt on the robbery charge was overwhelming, and we do not use that
adjective lightly. We cannot conclude on this record that counsel did not rationally
consider duress to be the most viable defense potentially available given defendant’s
admissions during his police interview. Nor has defendant persuaded this court that there
is a reasonable probability of a different result had his trial counsel pursued a different
37
defense strategy. Defendant’s assertion of ineffective assistance of counsel therefore
fails.
IV
Additional Assertions of Trial Error
Defendant further asserts the trial court prejudicially erred and also violated his
constitutional rights by declining to instruct the jury that a lack of motive may support a
not guilty verdict, and allowing the prosecutor to play defendant’s police interview for
the jury a second time in its entirety. We conclude any assumed error was harmless. As
stated previously, defendant’s guilt on the robbery charge was overwhelming. Even if
the jury was specifically informed that a lack of motive can support a not guilty verdict,
defendant had one: peer pressure. He felt obligated to help Curry perpetrate the robbery.
While this circumstance assists him greatly in undermining the sufficiency of the
evidence supporting the robbery-murder special circumstance and felony-murder
conviction, it does nothing to undermine the robbery conviction. Instruction on motive
would not have altered the outcome. Nor is there any reason to believe the outcome
would have been different had the jury heard defendant’s police interview once rather
than twice.
V
Cumulative Prejudice
We also reject defendant’s claim that the cumulative prejudicial impact of the
foregoing assertions of error requires reversal. Stated simply, with respect defendant’s
remaining robbery conviction, any assumed error is harmless whether viewed
individually or cumulatively.
VI
Retroactive Application of Senate Bill 620
Defendant finally contends we must remand for a new sentencing hearing because
Senate Bill 620 amended sections 12022.5 and 12022.53 to give the trial court discretion
38
to strike firearm enhancements in the interest of justice, and this enactment applies
retroactively to cases not yet final on appeal. The Attorney General concedes the issue.
We accept the concession.
Defendant was sentenced in May 2015. The law at that time did not allow the trial
court to strike his firearm enhancement in the interest of justice, but rather required
mandatory imposition. (See former §§ 12022.5, subd. (c) [as amended by Stats. 2011,
ch. 39, § 60], 12022.53, subd. (h) [as amended by Stats. 2010, ch. 711, § 5].) Effective
January 1, 2018, Senate Bill 620 amended both sections to provide: “The court may, in
the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or
dismiss an enhancement otherwise required to be imposed by this section. The authority
provided by this subdivision applies to any resentencing that may occur pursuant to any
other law.” (Stats. 2017, ch. 682, § 1.)
In In re Estrada (1965) 63 Cal.2d 740, our Supreme Court stated: “When the
Legislature amends a statute so as to lessen the punishment it has obviously expressly
determined that its former penalty was too severe and that a lighter punishment is proper
as punishment for the commission of the prohibited act. It is an inevitable inference that
the Legislature must have intended that the new statute imposing the new lighter penalty
now deemed to be sufficient should apply to every case to which it constitutionally could
apply.” (Id. at p. 745.) This includes “acts committed before its passage provided the
judgment convicting the defendant of the act is not final.” (Ibid.) Thus, under Estrada,
absent evidence to the contrary, we presume the Legislature intended a statutory
amendment reducing punishment to apply retroactively to cases not yet final on appeal.
(Id. at pp. 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) Our Supreme Court
has also applied the Estrada rule to amendments giving the trial court discretion to
impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.)
The Attorney General concedes the rule of Estrada requires retroactive application
of Senate Bill 620 to defendant’s case, which in turn requires remand for an exercise of
39
discretion under the new enactment. We accept the concession and order the necessary
remand.
DISPOSITION
Defendant’s felony-murder conviction is reversed, the special circumstance
finding is vacated, and the matter is remanded for resentencing, during which the trial
court shall consider whether or not to strike the firearm enhancement in the interest of
justice. In all other respects, the judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
HULL, Acting P. J.
/s/
DUARTE, J.
40