Filed 7/15/21 P. v. Murphy CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B297552
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA011616)
v.
WILLIAM CECIL MURPHY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Edmund Willcox Clarke, Jr., Judge. Reversed
and remanded with directions.
Barbara A. Smith, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Charles S. Lee, Deputy Attorneys
General, for Plaintiff and Respondent.
——————————
In 1993, William Cecil Murphy was convicted of first degree
murder based on his codefendant’s fatal stabbing of the victim
during the commission of a robbery. In 2019, Murphy filed a
petition for resentencing pursuant to newly-enacted Penal Code
section 1170.95.1 Following an evidentiary hearing, the trial
court denied the petition based on a finding that Murphy was
a major participant in the robbery; however, the court never
stated whether it also found that Murphy acted with reckless
indifference to human life. We conclude the trial court erred
in denying the petition because, even assuming the requisite
findings were made, the evidence was insufficient to support a
finding that Murphy acted with reckless indifference to human
life. We accordingly reverse and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
The 1992 Robbery and Murder2
On February 28, 1992, Carlos Bacab left his apartment
on Buford Street at 5:15 a.m., to check his work schedule. He
always carried his wallet in his pants and a box cutter he used
at work.
1 Unless otherwise stated, all further statutory references
are to the Penal Code.
2 The description of the 1992 robbery and murder set
forth in this opinion is taken verbatim from the factual and
procedural background in this court’s 1995 opinion in the
respective appeals filed by Murphy and his codefendant,
Howard Anthony Terry. (People v. Terry (Mar. 27, 1995,
B076823) [nonpub. opn.].) As will be discussed, this court’s
prior opinion was the only record on which the trial court
relied in ruling on Murphy’s section 1170.95 petition.
2
Bacab’s body was found by Sheriff Deputy Diaz at 104th
and Buford at 5:55 a.m. Bacab was lying in the street in his
boxer shorts and a shirt. He had two stab wounds in the back.
There were two puddles of blood. His closed box cutter lay in one
of the puddles. Bacab’s pants had been torn in two. A piece of
the pants and his black jacket were on a driveway across the
street.
Bacab died from two fatal stab wounds to his back which
ruptured his aorta. He had abrasions on his jaw, forehead,
elbow, arms and legs.
A trail of blood led across the street and to a pick-up truck
parked in a carport. Bacab’s wallet and papers lay behind the
truck.
Howard Anthony Terry and Murphy were charged with
murder during the commission of a robbery. They were tried
together before separate juries. Terry has a rare blood type found
in one person in four and a half million persons. Blood of the
same type was found on the sidewalk at the crime scene, on the
leg of Bacab’s pants and on the lining of the right rear pocket.
Terry’s palm print and blood of Terry’s type were found on the
pickup truck in the carport.
A six or eight inch knife covered with blood was found in a
yard, known in the neighborhood as “the jungle.” Blood on the
blade was consistent with Bacab’s blood type and blood on the
handle was consistent with Terry’s blood type. Of the 19
bloodstains the police collected, none were of Murphy’s blood
type.
Between 5 and 5:10 a.m. on February 28, 1992, Murphy’s
sister, Cathy, let her brother Murphy into their grandmother’s
home near Buford and 104th Street. He went to bed. Between
3
6 and 6:15 a.m. Terry came into the house. Terry and Murphy
are cousins. His finger was bleeding. Terry told Cathy that he
had stabbed someone. “He jacked someone and stabbed him.” To
Cathy “jack” meant to beat someone up, although an experienced
police officer testified it means to rob someone. Cathy overheard
Terry tell his sister on the telephone that he had stabbed
someone and to look out on the street. His sister lived on Buford
at 104th Street. Terry later told Cathy he did it “by the jungle.”
Terry seemed to be high on drugs. Allison Merideth, a friend of
Murphy, asked Terry the next day what he had done the night
before and he told her he stabbed an old man.
The following evidence was introduced in Murphy’s case
only. The police interviewed Murphy three times. In the first
interview, Murphy said he was riding in a car with a friend when
he saw two men beating and kicking a man on the south side of
104th Street. They ran off with the man’s pants. Upon further
questioning, Murphy modified his story. He said he was walking
south on Buford with two companions when they observed the
victim exit the driveway of his apartment building and begin to
walk southbound on Buford. They followed the victim. The two
companions began discussing the possibility of robbing this
individual. Murphy told his companions he was not in favor of
that. They followed the victim westbound on 104th Street, when
suddenly his two companions bolted forward and ran up to the
victim and began striking him about the head and upper body.
The victim ran to the south side of the street, and his companions
followed him and continued to attack him. Murphy said he
continued traveling westbound on the north side of 104th Street.
He saw one of his companions with a knife and he had no prior
knowledge of a knife being there. Murphy described the knife
4
as a kitchen type of food preparation butcher knife. He did not
actually see the stabbing. One of the individuals had the victim’s
pants and they ran eastbound on 104th Street to Buford.
Murphy continued eastbound on 104th to Inglewood Avenue
and to his home.
When told his story was not consistent with the
information the police had, Murphy said that in fact he had
crossed to the south side of the street to where the attack was
occurring. He tried to dissuade his companions from the attack.
Murphy indicated his cousin Terry had the knife. Murphy again
stated that he did not see the stabbing. Murphy said his cousin
cut his thumb during the attack and threw the knife into the
jungle yard.
Murphy admitted that he had the victim’s pants and that
he threw them in the driveway. They ran to the carport area
where they climbed up over the top to another street. They had
the victim’s wallet and checked its contents. Murphy thought his
fingerprints might be on the wallet.
At the next interview about two weeks later, Murphy
gave a statement practically the same as the final version of the
previous statement. When the police indicated that he was not
being completely truthful, Murphy identified one of the
individuals as Pagus, instead of the name he had used before,
Bacus. He said they had been drinking beer and discussing the
possibility of “jacking a basehead” on Buford Street, meaning a
rock cocaine dealer or user. When they saw the victim, Murphy
told his companions that he obviously was not a basehead. His
companions attacked the victim and he was with them but he
was not involved in the actual attack. Murphy said he went
along because he had to “take care of my cousin.”
5
Terry testified in his defense. He went to a party the
evening of February 27 where he drank a couple of 12 packs of
beer and smoked PCP. He left after 4:30 a.m. with an individual
he met at the party and his cousin Murphy. As they walked
along they saw the victim on the other side of the street. The
victim said something to Terry. He did not understand him
because it was in Spanish. Terry went across to the victim and
asked him what he needed. Murphy stayed behind. The victim’s
voice got louder, and he hit Terry. Terry fell down and his
companion helped him up and argued with the victim. The
victim reached into his pocket and pulled out an object that
looked like a knife. Terry panicked and tried to hit the object out
of the victim’s hand. They struggled and Terry pulled out his
knife which he carried for protection in this gang area. Terry hit
the victim twice with his knife while facing him. He ran with his
companions to the back of the apartments and discovered his
thumb was cut badly. He wrapped it in his T-shirt. He threw
the knife into the jungle.
Murphy’s 1993 Conviction for Murder
Both Murphy and Terry originally were charged with one
count of murder (§ 189, subd. (a)) with a felony-murder special
circumstance allegation (§ 190.2, subd. (a)(17)). Prior to trial,
the court granted the People’s motion to dismiss the special
circumstance allegation as to Murphy.
In 1993, following the joint trial before separate juries,
Murphy and Terry were each found guilty of first degree murder.
The jury in Terry’s trial also found the felony-murder special
circumstance allegation against him to be true. Terry was
sentenced to a term of life without the possibility of parole.
6
Murphy was sentenced to a term of 25 years to life for the
murder, plus five years for a prior serious felony conviction.
Murphy and Terry each filed an appeal from their
judgment of conviction. In 1995, this court affirmed both
judgments in an nonpublished opinion.
Murphy’s 2019 Petition for Resentencing
On January 2, 2019, represented by counsel, Murphy filed
a petition for resentencing pursuant to section 1170.95. Murphy
asserted he was entitled to relief under the newly-enacted statute
because he was convicted of first degree felony murder, he was
not the actual killer, he did not act with an intent to kill, and he
was not a major participant in the underlying felony who acted
with reckless indifference to human life. On March 4, 2019, the
People filed two oppositions to the petition. In one opposition,
the People argued section 1170.95 was unconstitutional. In the
other, the People contended Murphy was ineligible for
resentencing because he was a major participant in the robbery
and acted with reckless indifference to human life. On March 14,
2019, Murphy filed replies to the People’s oppositions.
The March 15 and 19, 2019 Hearings on the Petition
On March 15, 2019, the trial court held a hearing on the
petition. The court began by ruling that section 1170.95 was
unconstitutional because it violated the Victims’ Bill of Rights
Act of 2008: Marsy’s Law (hereafter Marsy’s Law). The court
then turned to the question of whether Murphy was a major
participant in the underlying felony. The prosecutor asked the
court whether the purpose of the hearing was to make a prima
facie finding on Murphy’s eligibility under section 1170.95, and
if so, whether it intended to issue an order to show cause (OSC).
7
The court responded that the hearing should not be called “a
prima facie finding,” but rather a “hearing on the petition”
where the People “have the burden of showing that the
defendant . . . doesn’t deserve the benefit of the statute because
he was a major participant . . . in a robbery that [led] to the
[victim’s] death.”
The prosecutor sought further clarification, noting that
under the statute, once the court makes a prima facie finding
and issues an OSC, the People have an opportunity to present
evidence at a hearing. When the court inquired whether she
planned to present any evidence, the prosecutor stated that she
did not intend to “at this hearing,” and was not certain if she
might do so at a later time. The court told the prosecutor that
the “evidence is the record of conviction,” and “[y]ou don’t call
witnesses.” The court also stated that it had already made
a prima facie finding or else it “would not have scheduled this”
hearing, and “would not bring lawyers back to court over and
over again if [it] thought there was no prima facie case.”
The prosecutor reiterated that the court still had to issue
an OSC and afford the People an opportunity to call witnesses.
The court asked, “What makes you think you have the right to
call witnesses?” When the prosecutor responded that section
1170.95 allows the court to consider the record of conviction as
well as other evidence, the court expressed concern that Murphy
would be entitled to a jury trial on his eligibility for relief under
the statute if additional witnesses were called. The court also
explained that because Murphy “stands convicted of a crime
based on evidence that was presented to a jury,” the court would
“need to look at the evidence that was presented to the jury and
decide whether [the People] can show beyond a reasonable doubt
8
that he was a major participant.” After additional discussion
about section 1170.95, subdivision (d)’s provision for a hearing to
decide whether to vacate the murder conviction and resentence
the petitioner, the court stated, “So, that’s what today’s hearing
was.”
When the court asked how much time the People would
need to prepare for the hearing, the prosecutor indicated that she
needed to determine whether the trial transcripts were available
since the court previously had ruled that the preliminary hearing
transcript was not admissible. The court noted that it was
unlikely that the prosecutor would be able to find the trial
transcripts given that Murphy’s counsel had been unable to do so.
The court advised the prosecutor, “My expectation is that you’re
not going to have other evidence of the record of conviction other
than what’s in the appellate decision. And I don’t want to deny
you the chance to try to find something and convince me I should
rely on it, but I don’t think that you will.”
Murphy’s counsel objected to any request by the People
for additional time to prepare for the hearing. Citing the
language of section 1170.95, the prosecutor reiterated that the
People were entitled to file a response to the petition before
a prima facie finding was made, and that the court was required
to issue an OSC before holding an evidentiary hearing on
the petition. The court responded, “So I’m ordering you to show
cause. I’m ordering you to show cause next week. [¶] Defense
counsel, pick a date.” After Murphy’s counsel requested a March
19 hearing date, the court stated, “The People are ordered to
show cause on the 19th why this petition should not be granted.”
At the March 19, 2019 hearing, the People requested a
continuance. The prosecutor indicated that she was still
9
attempting to locate the trial transcripts as well as awaiting
a response from the victim’s family about whether they wanted
to participate in the proceedings. She also emphasized that,
under section 1170.95, the People had a right to present new
evidence at the hearing on the petition once a prima facie finding
was made. Murphy’s counsel objected to the request for a
continuance. Noting that the parties had already made multiple
appearances before the court, Murphy’s counsel argued it was not
reasonable for the prosecutor to believe the March 15 hearing
was merely for a prima facie showing of entitlement to relief.
The trial court granted the request for a continuance,
stating, “So I’m finding good cause to grant an extension to the
People as requested, and the hearing on the petition, that is the
issue of major participation which is the only issue yet to be
decided[,] will be on April the 3rd. And either side who plans to
present evidence that I don’t already have should have that
evidence available. [¶] The record of the opinion of the Court of
Appeal is already before me. I think that’s all that’s before me
that’s admissible that I’ve seen so far. [¶] . . . [¶] . . . [I]f you find
the record of the trial testimony, I will certainly consider that if
you want to call new witnesses. I’m not saying that I would
prevent you, but I have serious doubts whether I should base any
decision on what some new witness says to me that wasn’t said
before a jury. And it’s going to be hard to know whether that
witness did say that before [the] jury, if we don’t have the
transcript.”
The April 3, 2019 Hearing on the Petition
At the April 3, 2019 hearing, the trial court reiterated its
prior ruling that section 1170.95 was unconstitutional, and then
asked if the parties were ready to proceed on the issue of whether
10
Murphy was a major participant in the underlying felony. The
prosecutor explained she had been unable to obtain the trial
transcripts, and was ready to argue the issue based on the record
in the prior appellate opinion. The prosecutor asked the court,
however, to consider the preliminary hearing transcript in ruling
on the petition. Murphy’s counsel objected to the prosecutor’s
request on several grounds, including that the preliminary
hearing transcript was inadmissible hearsay. Murphy’s counsel
also pointed out that the People were permitted “to call witnesses
and put on evidence,” and that there was no showing the relevant
witnesses were unavailable. After expressing its concerns about
the admissibility of evidence that was never presented to the
jury, the court stated, “I don’t plan to rely on the preliminary
hearing transcript. I don’t have anything other than the
appellate opinion to give me the facts of the case.”
The court then revisited the question of whether the jury
had a role at the evidentiary hearing under section 1170.95.
After an extended discussion of that issue, the court asked the
parties to address whether the People had proved Murphy was a
major participant in the underlying felony based on the prior
appellate opinion and the criteria set forth in People v. Banks
(2015) 61 Cal.4th 788 (Banks).
The parties and the court engaged in a lengthy discussion
of whether Murphy was a major participant under each of the
Banks factors. The court observed that Murphy was present
when the robbery was planned, and that there was nothing in
the record to suggest he tried to stop it. The court acknowledged,
however, that the record was not clear about Murphy’s motive in
trying to dissuade his companions from targeting the victim by
telling them that he was obviously not a drug dealer. The court
11
noted that there was no evidence Murphy had a role in using or
supplying lethal weapons, though he was aware of the presence
of a knife at the scene. The court also noted that Murphy knew
his codefendant, Terry, because they were cousins, and inferred
that Murphy must have known Terry to be a violent person since
they planned a robbery together. While the court believed
Murphy facilitated the robbery by acting as the lookout, it could
not determine from the record whether he facilitated the murder
or was in a position to prevent it from occurring.
The court considered Murphy’s actions after the murder
to be “the most harmful” for the defense. The court described
Murphy’s conduct in touching the victim’s pants and wallet as
“holding the man’s property with his blood on your hands,” and
characterized such conduct as “borderline ghoulish.” The court
also surmised that, if Murphy had not been on board with the
murder, he would have been horrified by it, but instead he
“plunge[d] [his] hands into the dead man’s blood and literally
pick[ed] his pockets.” Murphy’s counsel pointed out that the
record was not clear whether Murphy took the pants and wallet
directly from the victim or obtained them from one of his
coparticipants in the crime. In response, the court stated, To “me
it doesn’t matter. Why would you put the blood of this innocent
dead man on your hands, if you’re not part of what just
happened?”
Murphy’s counsel noted that, to be liable for felony murder,
a major participant in the felony must also act with reckless
indifference to human life. The court replied, “So I don’t think he
acted with reckless indifference since the killing occurred
independent of his physical activity. [¶] The question is did his
participation as a lookout and as a planner and in accompanying
12
people who were out robbing lead to the death? Seems to me it
did.” When Murphy’s counsel reiterated that Murphy must have
acted with reckless indifference to be ineligible for resentencing,
the court stated, “The stabbing he may not have acted with
reckless indifference, but in the overall crime, doesn’t his conduct
afterward suggest that he did?”
The prosecutor argued that Murphy’s conduct after the
murder showed his reckless indifference because he took the
victim’s pants and searched through his wallet and then fled the
scene with his two companions. The prosecutor also pointed out
that, after the murder, Murphy went to sleep and spent the next
day with the actual killer, his cousin Terry.
While the court acknowledged that “what happens after
[the victim is] already killed certainly doesn’t change things,” it
reasoned that an accomplice’s behavior after the murder remains
an important factor under Banks “as a reflection to your conduct.”
The court concluded, “I think you could tell my inclination is to
find Mr. Murphy a major participant. I still feel that he should
not be denied the benefit of the statute because I don’t think a
judge sitting without a jury and without a record of exactly what
the jury heard should deny him the benefit of the statute.” The
court ordered the People to offer Murphy a jury trial on “the
special finding of whether he was a major participant,” but
stayed any such trial until the court of appeal could review its
ruling on the petition.
Following the denial of his section 1170.95 petition,
Murphy filed a timely appeal.
13
DISCUSSION
Murphy challenges the trial court’s denial of his section
1170.95 petition on several grounds. He contends the trial court
erred in concluding that section 1170.95 was unconstitutional.
He also argues the court erred in failing to follow the multi-step
procedure set forth in the statute and to allow the parties an
opportunity to present new or additional evidence. In addition,
Murphy asserts the evidence on which the court relied in denying
the petition failed to establish that he was a major participant in
the robbery who acted with reckless indifference to human life.
For the reasons set forth below, we conclude Murphy was entitled
to relief under section 1170.95 because the evidence before the
trial court was insufficient to support a finding that Murphy
acted with reckless indifference to human life.
Governing Legal Principles
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) amended murder liability under
the felony murder rule and natural and probable consequences
doctrine. (People v. Gentile (2020) 10 Cal.5th 830, 842–843;
People v. Tarkington (2020) 49 Cal.App.5th 892, 897, review
granted Aug. 12, 2020, S263219; People v. Verdugo (2020)
44 Cal.App.5th 320, 323, review granted Mar. 18, 2020, S260493.)
Prior to Senate Bill 1437’s enactment, under the felony murder
rule, “a defendant who intended to commit a specified felony
could be convicted of murder for a killing during the felony, or
attempted felony, without further examination of his or her
mental state.” (People v. Lamoureux (2019) 42 Cal.App.5th
241, 247–248.) Similarly, under the natural and probable
consequences doctrine, a defendant was “liable for murder if he or
14
she aided and abetted the commission of a criminal act (a target
offense), and a principal in the target offense committed murder
(a nontarget offense) that, even if unintended, was a natural and
probable consequence of the target offense.” (Id. at p. 248.)
Senate Bill 1437 amended the felony murder rule by adding
section 189, subdivision (e), which provides that a participant in
the perpetration or attempted perpetration of qualifying felonies
is liable for felony murder only if the person: (1) was the actual
killer; (2) was not the actual killer but, with the intent to kill,
acted as a direct aider and abettor in the murder; or (3) the
person was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in
section 190.2, subdivision (d). (See People v. Gentile, supra,
10 Cal.5th at p. 842.) It amended the natural and probable
consequences doctrine by adding section 188, subdivision (a)(3),
which states that malice shall not be imputed to a person based
solely on his or her participation in a crime. (Id. at p. 843.)
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a now-
invalid felony murder or natural and probable consequences
theory may petition the sentencing court to vacate the murder
conviction and resentence the petitioner on any remaining
counts. A petitioner is eligible for relief under section 1170.95
if he or she: (1) was charged with murder by means of a charging
document that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine; (2) was convicted of first or second degree
murder; and (3) could no longer be convicted of first or second
degree murder due to the changes to sections 188 and 189
effectuated by Senate Bill 1437. (§ 1170.95, subd. (a).)
15
Once a petitioner makes a prima facie showing that he
or she is entitled to relief, the sentencing court must issue an
order to show cause (§ 1170.95, subd. (c)), and hold a hearing
to determine whether to vacate the murder conviction and
resentence the petitioner (§ 1170.95, subd. (d)(1)). At that
hearing, the prosecution has the burden of proving beyond a
reasonable doubt the petitioner is ineligible for resentencing
(§ 1170.95, subd. (d)(3)), that is, the People must prove beyond a
reasonable doubt that the petitioner is guilty under a theory that
remains valid after Senate Bill 1437’s enactment. (See People v.
Clements (2021) 60 Cal.App.5th 597, 615, review granted Apr. 28,
2021, S267624; People v. Rodriguez (2020) 58 Cal.App.5th 227,
230, review granted Mar. 10, 2021, S266652; People v. Lopez
(2020) 56 Cal.App.5th 936, 949, review granted Feb. 10, 2021,
S265974; but see People v. Duke (2020) 55 Cal.App.5th 113, 123,
review granted Jan. 13, 2021, S265309 [holding substantial
evidence standard applies at § 1170.95, subd. (d)(3) hearing].)
Both the prosecution and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens. (§ 1170.95, subd. (d)(3).) A prior appellate
opinion is part of the record of conviction that the court may
consider in deciding whether the petitioner is entitled to relief.
(Clements, at p. 612; People v. Tarkington, supra, 49 Cal.App.5th
at p. 899, fn. 5; People v. Verdugo, supra, 44 Cal.App.5th at
p. 333.) If the prosecution fails to sustain its burden of proof, the
court must vacate the murder conviction and any allegations and
enhancements attached to it, and resentence the petitioner on
the remaining counts. (§ 1170.95, subd. (d)(3).)
On appeal from an order denying a section 1170.95 petition
following an evidentiary hearing, we review the superior court’s
16
factual findings for substantial evidence. (People v. Clements,
supra, 60 Cal.App.5th at p. 618; People v. Rodriguez, supra,
58 Cal.App.5th at p. 238.) “We ‘ “examine the entire record in
the light most favorable to the judgment to determine whether
it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value that would support a
rational trier of fact in finding [the defendant guilty] beyond a
reasonable doubt.” ’ ” (Clements, at p. 618.)
Section 1170.95 Is Constitutional
Murphy asserts, and the Attorney General agrees, that the
trial court erred to the extent it denied Murphy’s petition on the
ground that section 1170.95, as enacted through Senate Bill
1437, is unconstitutional. Appellate courts uniformly have
rejected challenges to Senate Bill 1437’s constitutionality. (See,
e.g., People v. Marquez (2020) 56 Cal.App.5th 40; People v. Johns
(2020) 50 Cal.App.5th 46; People v. Prado (2020) 49 Cal.App.5th
480; People v. Bucio (2020) 48 Cal.App.5th 300; People v. Solis
(2020) 46 Cal.App.5th 762; People v. Cruz (2020) 46 Cal.App.5th
740; People v. Superior Court (Gooden) (2019) 42 Cal.App.5th
270; People v. Lamoureux, supra, 42 Cal.App.5th 241.) We find
the reasoning in these cases persuasive, and likewise conclude
that section 1170.95 is constitutional.
Murphy Has Not Shown the Trial Court Prejudicially
Erred in Failing to Strictly Comply with the Multi-
Step Procedure Set Forth in Section 1170.95.
Murphy argues the trial court further erred in denying his
petition because it failed to comply with the specific procedure set
forth in section 1170.95. In particular, he contends the trial court
failed to first determine whether he had made a prima facie
17
showing that he was entitled to relief, and then schedule an OSC
hearing where the prosecution had the burden to prove he was
ineligible for resentencing. Murphy also claims the trial court
failed to provide the parties with an opportunity to present new
or additional evidence at the OSC hearing.
The record reflects that, at the start of the March 15, 2019
hearing on Murphy’s petition, there was some confusion about
the procedural posture of the case. When the prosecutor inquired
whether the purpose of the March 15 hearing was to determine
whether a prima facie showing had been made, the court
explained it had already made a prima facie finding that Murphy
was entitled to relief, and the purpose of the hearing was to
decide whether the People proved that Murphy was ineligible
for resentencing because he was a major participant in the
underlying felony. It thus appears that the trial court initially
intended to hold the hearing prescribed by section 1170.95,
subdivision (d) without first issuing an order to show cause, as
required by subdivision (c). By the conclusion of the March 15
hearing, however, the trial court had corrected its procedural
misstep. After the prosecutor pointed out that the express
language of the statute required the court to issue an order to
cause before holding a section 1170.95, subdivision (d) hearing,
the court agreed to set the matter for such a hearing on
March 19. The court also made clear it was ordering the
prosecution to show cause at that hearing why Murphy’s petition
should not be granted.
On March 19, the trial court granted the People’s request to
continue the hearing to April 3 to allow the prosecutor additional
time to search for relevant evidence. On April 3, a date within 60
days after the order to show cause was issued, the court held the
18
section 1170.95, subdivision (d) hearing at which the People had
the burden of proving beyond a reasonable doubt that Murphy
was ineligible for resentencing. Therefore, despite some initial
confusion about the proper procedure, the trial court ultimately
complied with the multi-step process set forth in section 1170.95
by first making a prima facie finding of Murphy’s entitlement to
relief, then issuing an order to show cause, and finally holding
a hearing to determine whether to vacate Murphy’s murder
conviction and resentence him.
Moreover, Murphy has not shown he suffered any prejudice
related to the trial court’s initial failure to issue the order to show
cause. At both the March 15 and 19 hearings, Murphy’s counsel
advised the court that the defense was ready to proceed with the
hearing prescribed by section 1170.95, subdivision (d), and urged
the court to move forward with that hearing without further
delay. Indeed, in opposing the prosecutor’s request to continue
the March 15 hearing for procedural compliance with the statute,
Murphy’s counsel asserted that “the defense has been diligent in
preparing and understood what this court date was for.”
Murphy also argues the trial court failed to comply with
section 1170.95 because it did not permit the parties to introduce
evidence outside the record of conviction. It is true that, at the
March 15 hearing, the trial court indicated that it believed the
admissible evidence at the section 1170.95, subdivision (d)
hearing was limited to the record of conviction, and that the
parties were not allowed to call witnesses because it would
implicate the right to a jury trial. While the court expressed
similar concerns at the March 19 hearing, it also stated it would
decide whether to permit additional evidence at the April 3
hearing. The court thus advised the parties, “[E]ither side who
19
plans to present evidence that I don’t already have should have
that evidence available.”
At the April 3 hearing, neither the prosecution nor the
defense sought to introduce any new or additional evidence
outside of the record of conviction. While the prosecutor argued
the preliminary hearing transcript should be considered as part
of the record of conviction, Murphy’s counsel objected to its
admission on hearsay and other grounds. Murphy’s counsel also
noted that “the People have the ability to call witnesses and put
on evidence.” The defense never suggested it had any witnesses
or other evidence that it wished to introduce at the section
1170.95, subdivision (d) hearing. Nor did the defense raise any
objection to the trial court’s decision to proceed solely on the prior
appellate opinion. Rather, the totality of the record reflects that
Murphy’s position at each hearing on his petition was that the
People had the burden of proof, and that the record of conviction
did not establish beyond a reasonable doubt that Murphy was a
major participant in the underlying felony who acted with
reckless indifference to human life.
Because Murphy never proffered any new or additional
evidence for the trial court to consider at the section 1170.95,
subdivision (d) hearing, he has forfeited any argument that the
court erred in failing to allow such evidence. (See Evid. Code,
§ 354, subd (a) [judgment or decision shall not be reversed for
erroneous exclusion of evidence unless the “substance, purpose,
and relevance of the excluded evidence was made known to the
court by . . . an offer of proof, or by any other means”]; People v.
Johnson (2018) 6 Cal.5th 541, 571 [defendant forfeited any claim
about purported exclusion of evidence by “failing to offer it in
evidence below”].) Even assuming the claim was preserved,
20
Murphy has not shown it is reasonably probable that the trial
court would have reached a different result in the absence of the
alleged error. (See People v. DeHoyos (2013) 57 Cal.4th 79, 131
[erroneous exclusion of evidence reviewed for prejudice under
state law standard articulated in People v. Watson (1956)
46 Cal.2d 818]; People v. McNeal (2009) 46 Cal.4th 1183, 1203
[same].) Murphy has not identified any evidence that he was
precluded from introducing at the section 1170.95, subdivision (d)
hearing, nor has he suggested the existence of any evidence that
he would offer at such a hearing on remand. Under these
circumstances, any error by the trial court in failing to allow the
parties to present new or additional evidence outside the record
of conviction was harmless.3
The Trial Court Erred in Denying the Section 1170.95
Petition Because the Evidence Was Insufficient to
Establish Murphy’s Ineligibility for Resentencing
Murphy also challenges the sufficiency of the evidence
supporting the trial court’s finding that he was ineligible for
resentencing under section 1170.95. He contends the evidence
in the prior appellate opinion was insufficient to prove that he
was a major participant in the robbery who acted with reckless
indifference to human life, and the trial court’s speculation about
his mental state and conduct after the crime was not supported
3 Neither Murphy nor the Attorney General argues on
appeal that the trial court erred in ruling that the preliminary
hearing transcript was inadmissible because it was not part of
the record of conviction. Accordingly, we express no opinion
about the admissibility of a preliminary hearing transcript at a
hearing held under section 1170.95, subdivision (d).
21
by the record. The Attorney General argues that the trial court
properly denied the section 1170.95 petition because there was
substantial evidence in the appellate opinion to support the
court’s express finding that Murphy was a major participant in
the robbery, as well as its implied finding that Murphy acted
with reckless indifference to human life.
Section 189, subdivision (e)(3), provides that a participant
in certain felonies, including robbery, in which a death occurs is
liable for murder if the person was “a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2,” the felony-
murder special circumstance statute. Section 190.2, subdivision
(d), in turn states that “every person, not the actual killer, who,
with reckless indifference to human life and as a major
participant” aids or abets an enumerated felony, including
robbery, that results in death may be convicted of special
circumstance murder and sentenced to death or imprisonment
for life without parole. “The statute, by its text, imposes an actus
reus requirement, major participation in the enumerated felony,
and a mens rea requirement, reckless indifference to human life.”
(In re Scoggins (2020) 9 Cal.5th 667, 674 (Scoggins).)
More than two decades after Murphy’s trial and conviction,
the California Supreme Court in Banks, supra, 61 Cal.4th 788
and People v. Clark (2016) 63 Cal.4th 522, 609 (Clark) clarified
the meaning of the “ ‘major participant’ ” and “ ‘reckless
indifference’ ” requirements of section 190.2, subdivision (d). In
Banks, the Supreme Court identified a nonexclusive list of factors
for determining whether an aider and abettor was a major
participant in the underlying felony: “What role did the
22
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, at p. 803, fn. omitted.) With respect to the
“[r]eckless indifference” element, the court explained that
“[r]eckless indifference to human life ‘requires the defendant
be “subjectively aware that his or her participation in the felony
involved a grave risk of death.” ’ ” (Id. at p. 807.) “Awareness of
no more than the foreseeable risk of death inherent in any armed
crime is insufficient; only knowingly creating a ‘grave risk of
death’ satisfies” the mens rea requirement. (Id. at p. 808.)
Applying these principles, the Banks court held the
evidence was insufficient to establish the defendant, a getaway
driver in an armed robbery that resulted in a fatal shooting,
was a major participant in the robbery or acted with reckless
indifference to human life. (Banks, supra, 61 Cal.4th at pp. 805–
807.) The defendant did not qualify as a major participant
because there was no evidence that he planned the robbery, had
any role in procuring weapons, knew whether his confederates
had committed prior violent crimes, was present at the scene of
the crime, or could have prevented the shooting from occurring.
(Id. at p. 805.) The defendant’s awareness of the risk of death
inherent in an armed robbery was insufficient to show reckless
23
indifference because there was no evidence that he “knew his own
actions would involve a grave risk of death.” (Id. at p. 807.)
The following year, in Clark, supra, 63 Cal.4th at pages 616
to 618 the Supreme Court further elaborated on the mental state
required to demonstrate reckless indifference to human life. As
the court explained, the “ ‘reckless indifference’ ” element of a
felony-murder special circumstance finding “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
requisite state of mind is “ ‘implicit in knowingly engaging in
criminal activities known to carry a grave risk of death.’ ” (Id.
at p. 616.) Reckless indifference to human life thus has both a
subjective and objective component. (Id. at p. 617.) Subjectively,
the defendant must consciously disregard risks known to him or
her. (Ibid.) Objectively, recklessness is determined by “what ‘a
law-abiding person would observe in the actor’s situation,’ ” that
is, whether the defendant’s conduct “ ‘involved a gross deviation
from the standard of conduct that a law-abiding person in the
actor’s situation would observe.’ ” (Ibid.) The fact that a robbery
involved a gun, by itself, is insufficient to support a finding of
reckless indifference to human life. (Id. at pp. 617; see Scoggins,
supra, 9 Cal.5th at p. 677 [“ ‘the fact a participant [or planner of]
an armed robbery could anticipate lethal force might be used’ is
not sufficient to establish reckless indifference to human life”].)
Clark, supra, 63 Cal.4th at pages 618 to 623 also provided a
nonexclusive list of factors to consider in evaluating whether a
defendant acted with reckless indifference to human life: “Did
the defendant use or know that a gun would be used during the
felony? How many weapons were ultimately used? Was the
24
defendant physically present at the crime? Did he or she have
the opportunity to restrain the crime or aid the victim? What
was the duration of the interaction between the perpetrators of
the felony and the victims? What was the defendant’s knowledge
of his or her confederate’s propensity for violence or likelihood of
using lethal force? What efforts did the defendant make to
minimize the risks of violence during the felony?” (Scoggins,
supra, 9 Cal.5th at p. 677 [listing factors set forth in Clark,
supra, 63 Cal.4th at pp. 618–623].) Like the Banks factors, “ ‘[n]o
one of these considerations is necessary, nor is any one of them
necessarily sufficient.’ ” (Clark, at p. 618.)
Applying these factors, Clark, supra, 63 Cal.4th at pages
612, 614 held there was insufficient evidence to support a finding
that the defendant, the “mastermind” who planned and organized
a store robbery that ended in a fatal shooting, acted with reckless
indifference to human life. Despite the defendant’s significant
involvement in planning the crime, the evidence showed he
attempted to minimize the likelihood of violence by timing the
robbery to occur after the store was closed and planning the use
of one unloaded gun. (Id. at pp. 621–622.) At the time of the
shooting, the defendant was not present in the store, was
unaware that the shooter had loaded the gun with a single bullet,
and had no prior knowledge that the shooter was likely to engage
in violence. (Id. at pp. 619–621.) The court thus concluded there
was “nothing in the plan that one can point to that elevated the
risk to human life beyond those risks inherent in any armed
robbery.” (Id. at p. 623.)
More recently, our Supreme Court considered the reckless
indifference element of section 190.2, subdivision (d) in Scoggins,
supra, 9 Cal.5th 667. Scoggins, at page 676, held the evidence
25
was insufficient to establish that the defendant acted with
reckless indifference to human life where he planned an unarmed
assault and robbery and one of his accomplices deviated from the
plan and killed the victim. The victim previously had swindled
the defendant in a sales transaction, and to exact revenge, the
defendant recruited two friends to ambush the victim, “ ‘beat the
shit’ ” out of him, and retrieve the defendant’s money. (Id. at
p. 671.) As planned, the attack took place in a strip mall parking
lot while the defendant waited at a nearby gas station. When the
victim arrived, however, one of the defendant’s accomplices
unexpectedly pulled out a gun and shot him. (Id. at pp. 671–672.)
The defendant had no knowledge a gun would be used in the
attack or that his accomplices were likely to engage in lethal
force, was not present at the scene of the shooting or in a position
to restrain the shooter, and had attempted to minimize the risk of
death by planning for the assault to occur in a public place in
broad daylight. (Id. at pp. 677–678, 681–683.) Based on these
facts, the court concluded the defendant “did not ‘knowingly
creat[e] a “grave risk of death.” ’ ” (Id. at p. 683.)
In denying Murphy’s section 1170.95 petition, the trial
court found Murphy was ineligible for resentencing under the
statute because he was a major participant in a robbery that
led to the victim’s death. The trial court never made a finding
that Murphy acted with reckless indifference to human life, as
now required to be liable for felony murder under section 189,
subdivision (e). While the Attorney General asserts the trial
court made an implied finding of reckless indifference at the
26
April 3 hearing, the record suggests otherwise given the court’s
express statement at the hearing that it did not believe Murphy
“acted with reckless indifference since the killing occurred
independent of his physical activity.”
For purposes of this appeal, however, we need not decide
whether the trial court made an implied finding of reckless
indifference to human life. We also need not determine whether
there was sufficient evidence to support the trial court’s express
finding that Murphy was a major participant in the robbery.
Even assuming that the necessary findings were made, and that
the evidence was sufficient to establish that Murphy was a major
participant, there was no substantial evidence that Murphy acted
with reckless indifference to human life. The trial court therefore
erred in denying Murphy’s petition on the ground that he was
ineligible for resentencing under section 1170.95.
First, Murphy did not use a weapon in the robbery, nor
did he supply any weapons to his coparticipants in the crime.
At some point, Murphy did become aware that his cousin, Terry,
was armed with a knife. However, the prior appellate opinion
is unclear about when that occurred. According to the opinion,
Murphy told the police that, during the assault, he “saw one of
his companions with a knife and he had no prior knowledge of a
knife being there.” Murphy later disclosed that “Terry had the
knife,” but he “again stated that he did not see the stabbing.”
Terry testified that Murphy “stayed behind” during the attack,
and that Terry “pulled out his knife which he carried for
protection” as he struggled with the victim. Yet even assuming
Murphy was aware that Terry was carrying a knife before the
robbery began, there is nothing in the record about Murphy’s own
knowledge or use of weapons that suggests he “appreciated the
27
planned robbery posed a heightened risk of death.” (In re Taylor
(2019) 34 Cal.App.5th 543, 558.) 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.)
Second, although Murphy was present at the scene of the
robbery, the record is ambiguous about his precise location and
whether he had an opportunity to act as a restraining influence
on his companions or to render aid to the victim. As set forth in
the appellate opinion, Murphy initially told the police that he
stayed across the street as his companions chased and attacked
the victim. He later admitted that “in fact he had crossed to the
south side of the street to where the attack was occurring.”
However, as the trial court observed, Murphy’s position on the
“same side of the street” as his cohorts “could be a hundred yards,
it could be 20 yards, it could be [10] feet,” and given the sudden
nature of the stabbing, “it doesn’t seem like [he] was in a position
to stop [it].” Moreover, while Murphy’s account of his location at
the scene evolved over the course of his police interviews, he
maintained in each of his interviews that he “was not involved in
the actual attack,” and “he did not see the stabbing” occur.
Accordingly, while the evidence could support a finding that
Murphy was in close proximity to the fatal stabbing of the victim,
it did not show he was close enough to act as a restraining force
on the crime or his companions. (See, e.g., In re Ramirez (2019)
32 Cal.App.5th 384, 405 [defendant may have been able to see
and hear what was happening at scene of shooting, but he was
not “close enough to exercise a restraining effect on the crime or
his colleagues”]; In re Bennett (2018) 26 Cal.App.5th 1002, 1024
[where defendant was across the street from shooting and did not
28
see it occur, he “was never in close enough proximity to act as a
restraining influence”].)
Third, there is no evidence that the duration of the crime
created a heightened risk for violence. As the Supreme Court
explained in Clark, supra, 63 Cal.4th at page 620, courts have
considered “whether a murder came at the end of a prolonged
period of restraint of the victims by defendant” in assessing
whether the defendant acted with reckless indifference to human
life. “Where a victim is held at gunpoint, kidnapped, or otherwise
restrained in the presence of perpetrators for prolonged periods,
‘there is a greater window of opportunity for violence’ [citation],
possibly culminating in murder.” (Ibid.) In this case, it appears
the duration of the crime was short. Murphy’s two companions
began striking the victim as soon as they caught up to him, and
Terry then stabbed him twice with a knife. Terry also testified
that the stabbing occurred during a struggle after the victim
suddenly pulled a knife from his own pocket. Although a
reasonable factfinder could disbelieve Terry’s version of events,
there is nothing in the record to suggest that the stabbing came
at the end of a prolonged period of restraint, or was an expected
part of the planned robbery. (See, e.g., In re Taylor, supra,
34 Cal.App.5th at p. 558 [reckless indifference absent where
evidence tended to show “the shooting was a ‘somewhat
impulsive’ response to the victim’s unexpected resistance”];
In re Miller (2017) 14 Cal.App.5th 960, 975 [duration of crime
counseled against finding reckless indifference where killing
“appeared to be somewhat impulsive” and “occurred when the
shooter was unexpectedly confronted”].)
Fourth, there is no evidence that Murphy knew his
companions were likely to use lethal force. While Terry was
29
Murphy’s cousin, the record does not contain any evidence
showing that Terry or the other accomplice in the robbery had
a prior history of violence, or that Murphy was aware of any
such history. There is also no evidence that Murphy had
previously committed any crimes with either of his companions.
In ruling on Murphy’s section 1170.95 petition, the trial court
surmised that Murphy must have known Terry “to be a violent
person obviously since they planned a robbery together.”
However, the fact that Murphy planned the robbery with Terry
does not support an inference that Murphy had any prior
knowledge of his cousin’s violent conduct. As the Supreme Court
observed in Scoggins, supra, 9 Cal.5th at page 682, “[e]ven if [the
defendant] knew that [his cohorts] were prone to some degree of
violence, and even though the planned assault of [the victim]
necessarily contemplated the use of violence, the evidence does
not support a finding that [the defendant] acted with reckless
indifference to human life.” (See In re Taylor, supra,
34 Cal.App.5th at p. 558 [although defendant was “good friends”
with shooter and likely aware of his involvement in illegal
activity, such evidence did not show defendant knew of prior
violent behavior on shooter’s part]; In re Ramirez, supra,
32 Cal.App.5th at p. 405 [defendant’s knowledge that killer was a
gang member “says nothing about [his] knowledge of his cohorts’
likelihood of killing”]; In re Miller, supra, 14 Cal.App.5th at
p. 976 [“[e]ven though defendant and [the killer] belonged to the
same gang and had committed . . . robberies together in the past,
‘[n]o evidence indicated [they] had ever participated in shootings,
murder, or attempted murder’ ”].)
Fifth, the record is ambiguous about what efforts, if any,
Murphy may have made to minimize the risk of violence. In his
30
initial interview with the police, Murphy stated that when his
two companions began discussing the possibility of robbing the
victim, Murphy told them “he was not in favor of that.” Murphy
also asserted that during the assault on the victim, he “tried to
dissuade his companions from the attack.” In a later interview,
Murphy recounted that he and his companions had been
discussing the possibility of robbing a “basehead,” meaning a
drug dealer or user, and when they saw the victim, he “told his
companions that he obviously was not a basehead.” Murphy’s
statements about his role in the crime, if believed, could support
an inference that he tried to minimize the risk of violence by
discouraging his companions from targeting the victim or using
deadly force. Even if Murphy’s account is disbelieved, however,
there is no evidence from which it reasonably can be inferred that
he “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.” (In re Ramirez,
supra, 32 Cal.App.5th at pp. 405–406.)
In finding that Murphy was ineligible for relief under
section 1170.95, the trial court relied heavily on his conduct
following the stabbing. Our Supreme Court has recognized that
a “defendant’s actions after the [killing] may also bear on the
defendant’s mental state.” (Scoggins, supra, 9 Cal.5th at p. 679.)
On the other hand, where there is ambiguity in the defendant’s
postkilling conduct, it can “ ‘make it difficult to infer his frame
of mind concerning [the victim’s] death.’ ” (Id. at p. 680.) Here,
Murphy’s actions after the murder of the victim were somewhat
ambiguous. According to the appellate opinion, Murphy admitted
that after the stabbing “he had the victim’s pants and that he
31
threw them in the driveway. . . . They had the victim’s wallet
and checked its contents. Murphy thought his fingerprints might
be on the wallet.” In the legal discussion, the opinion also stated
that Murphy “took the victim’s pants and looked through his
wallet.” The record is unclear, however, about the specific
circumstances surrounding Murphy’s contact with the victim. As
Murphy’s counsel pointed out at the hearing on the petition, “we
do know that he ended up with the wallet or touched it [at] some
point, but we don’t know at what point that was, if Mr. Terry or
the third unidentified person took those items, gave them to
Mr. Murphy, told him to hold them. We don’t know any of the
circumstances of that.”
Based on Murphy’s contact with the victim’s property after
the killing, the trial court inferred that Murphy must have
“plunge[d] [his] hands into the dead man’s blood and literally
pick[ed] his pockets.” The court also imagined Murphy “holding
the man’s property with his blood on [his] hands,” and “tak[ing]
the proceeds of the murderous robbery and run[ning] [his] fingers
through it.” However, the record is devoid of evidence supporting
this version of events. There is nothing in the appellate opinion
from which it reasonably can be inferred that Murphy “pick[ed]
[the] pockets” of the victim after the stabbing, “plung[ed] [his]
hands” into the victim’s body, or had the victim’s “blood on [his]
hands.” The opinion made no mention of when or how Murphy
obtained the victim’s wallet or pants, nor of blood being anywhere
on Murphy’s person. “To be relied upon in a determination
whether evidence is substantial, an inference ‘must be
reasonable. An inference is not reasonable if it is based only on
speculation.’ [¶] . . . [¶] ‘ “[S]peculation is not evidence, less still
substantial evidence.” ’ ” (In re Ramirez, supra, 32 Cal.App.5th
32
at pp. 404–405.) Here, the trial court’s vivid mental image of how
Murphy may have come into contact with the victim’s property
was unsupported by substantial evidence.
Notwithstanding the trial court’s speculation, the facts set
forth in the appellate opinion could support an inference that
Murphy took the victim’s pants from his body after the stabbing
and searched through his wallet. On the other hand, the record
also could support an inference that Murphy acquired the
victim’s property from his companions as they were fleeing the
scene. As the Supreme Court cautioned in Scoggins, supra, 9
Cal.5th at page 679, “when different inferences may be drawn
from the circumstances, the defendant’s actions after the [killing]
may not be very probative of his mental state.” In this case, the
ambiguous circumstances surrounding Murphy’s postkilling
conduct “ ‘make it difficult to infer his frame of mind.’ ” (Id. at
p. 680.) Yet even assuming Murphy took the victim’s property
from his deceased body rather than obtaining it from his
companions, such conduct, while reprehensible, does not show
that Murphy acted with reckless disregard to the risk of human
life posed by the planned robbery. The “governing standard as
explained in Banks and Clark is not satisfied with evidence of a
general indifference to human life, but instead with evidence of
a reckless indifference, which is shown when the defendant
knowingly creates a serious risk of death. [Citation.] Thus,
even if a defendant is unconcerned that a planned felony resulted
in death, . . . there must also be evidence that the defendant’s
participation in planning or carrying out the crime contributed
to a heightened risk to human life.” (In re Taylor, supra,
34 Cal.App.5th at p. 560.)
33
Considering the totality of the record before the trial court,
the evidence failed to establish that Murphy acted with reckless
indifference to human life. Murphy’s culpability in the fatal
stabbing of the victim resided in his role as a planner and
possibly a lookout for the robbery, “rather than in his actions on
the ground in the immediate events leading up to [the] murder.”
(Clark, supra, 63 Cal.4th at p. 623.) While Murphy may have
been aware that his companion, Terry, was armed, there was
“nothing in the plan that one can point to that elevated the risk
to human life beyond those risks inherent in any armed robbery.”
(Ibid.) Nor, is there any evidence that Murphy had any “direct
involvement” in the stabbing itself. (In re Taylor, supra,
34 Cal.App.5th at p. 559.) In sum, there was nothing in the
record that showed that Murphy was “aware of and willingly
involved in the violent manner in which the [offense was]
committed,” or that he consciously disregarded “the significant
risk of death his . . . actions create[d].” (Banks, supra, 61 Cal.4th
at p. 801.) Because the evidence was insufficient to support a
finding that Murphy acted with reckless indifference to human
life, the trial court erred in denying the section 1170.95 petition
on the ground that Murphy was ineligible for resentencing. We
accordingly reverse the order denying Murphy’s petition and
remand the matter for resentencing in accordance with section
1170.95.
34
DISPOSITION
The order denying William Cecil Murphy’s Penal Code
section 1170.95 petition is reversed and the matter is remanded
to the superior court. On remand, the superior court shall enter
a new order granting the petition and vacating Murphy’s murder
conviction under section 1170.95, subdivision (d)(2), and shall
resentence Murphy in accordance with section 1170.95,
subdivision (d)(3).
NOT TO BE PUBLISHED.
KALRA, J.*
We concur:
EDMON, P. J.
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
35