In re Loza , 215 Cal. Rptr. 3d 671 ( 2017 )

Filed 3/24/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
B279566
In re ADAM LOZA,
(Los Angeles County
Super. Ct. No. TA087610)
on Habeas Corpus.
ORIGINAL PROCEEDINGS; petition for writ of habeas
corpus. William R. Chidsey, Judge. Petition denied.
Matthew Alger, under appointment by the Court of Appeal,
for Petitioner.
Xavier Becerra, Attorney General, Kathleen A. Kenealy,
Acting Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Victoria B. Wilson, Supervising Deputy Attorney
General, Viet H. Nguyen, Deputy Attorney General, for
Respondent.
INTRODUCTION
A jury convicted petitioner Adam Loza of two counts of first
degree murder and two counts of attempted robbery. The jury
1
found true the Penal Code section 190.2 special circumstance
allegations that the murders were committed while petitioner
was engaged in the attempted commission of a robbery or
burglary. In accordance with the section 190.2 robbery/burglary
special circumstance findings, the trial court sentenced petitioner
to consecutive prison terms of life without the possibility of parole
on his murder convictions.
On direct appeal, petitioner argued, among other things,
that insufficient evidence supported the jury’s robbery/burglary
special circumstance findings. We affirmed the judgment of
conviction in an unpublished opinion, People v. Loza (May 7,
2010, B212250) (Loza).
In 2015, the California Supreme Court held in People v.
Banks (2015) 61 Cal. 4th 788 (Banks) that, under section 190.2,
subdivision (d), an aider and abettor of felony murder who lacks
the intent to kill may be sentenced to a term of life without the
possibility of parole only if the aider and abettor was a “major
participant” in the crime and acted with “reckless indifference to
human life.” Relying on Banks, petitioner filed a petition for writ
of habeas corpus in the Supreme Court challenging the
sufficiency of the evidence supporting the jury’s robbery/burglary
special circumstance findings. Citing Banks, the Supreme Court
ordered the Secretary of the Department of Corrections and
1
All statutory citations are to the Penal Code unless
otherwise noted.
2
Rehabilitation to show cause in this court “why petitioner is not
entitled to the relief requested.”
Having reviewed the record in light of our Supreme Court’s
most recent guidance (namely Banks, supra, 61 Cal. 4th 788 and
People v. Clark (2016) 63 Cal. 4th 522 (Clark)) concerning a
defendant aider and abettor’s culpability along the so-called
Enmund-Tison continuum (Enmund v. Florida (1982) 458 U.S.
782 (Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison)),
we hold that sufficient evidence supports the jury’s section 190.2
robbery/burglary special circumstance findings in this case.
Accordingly, we deny the petition for writ of habeas corpus.
BACKGROUND
I. Factual Background
For purposes of our analysis, we repeat the factual
background set forth in our unpublished opinion in Loza:
“During the early morning hours of November 4, 2006,
[petitioner] was riding around in a red Ford Explorer driven by
co-defendant Julio Perez. [Fn. omitted.] Co-defendant Eric
Sanford, Gilbert Rivera, Christopher Perez (‘Christopher’) and
Sara Graeff were passengers. Christopher is Julio Perez’s
brother. He was dating Graeff at the time. They had been
drinking beer.
“At some point, Perez saw co-defendant Sanford and
stopped the car. [Fn. omitted.] Sanford came up to the Explorer
and said, ‘I just shot someone in the head. Let me in the car. Let
me in the car.’ The occupants of the Explorer thought Perez was
kidding. Sanford got into the Explorer. At some point, he put the
gun in the back of the Explorer.
3
“There was a discussion about stealing some beer. Sanford
stated: ‘Let’s go get some beer, I’m down, I’m down.’ [Petitioner]
stated that he would hold the door for Sanford.
“About 4:00 a.m., Perez drove to a Mobil service station
located at 22240 Avalon Boulevard in Carson (hereafter ‘Mobil’).
The Mobil was open 24 hours a day and consisted of a gas station,
automotive repair garage, and a Mobil mini convenience store.
The Mobil sold beer, but the beer coolers were locked from 2:00
a.m. to 6:00 a.m. At 4:05 a.m., [co-defendant] Perez purchased
five dollars worth of gasoline. At 4:07 a.m., [co-defendant] Perez
pumped the gasoline. He then drove the Explorer to the side of
the Mobil.
“[Petitioner], Perez and Sanford got out of the Explorer.
Perez gave a sweater to [petitioner], who put it around his head.
Graeff told police that [petitioner] gave the gun to Sanford.
[Petitioner] and Sanford walked towards the Mobil. Perez stayed
behind inside the Explorer. About three minutes later, Sanford
and [petitioner] ran back and got inside the Explorer. Perez
drove away. [Petitioner] was hysterical and yelling, ‘You just
shot them. You just shot them. You just shot them. I can’t
believe you just shot them.’ Someone said to Sanford: ‘You shot
them? Did you really shoot them?’ Sanford stated, ‘I counted
down, and I told them to give me their money, and they didn’t—
they didn’t give it to me fast enough, so I shot them.’
“At 5:00 a.m., Ronald Hasty, the owner of the Mobil, went
to the Mobil. There, he found the front door unlocked. Hasty
looked for his two employees, Eduardo Roco and Ester Ortiega,
who had been working the overnight shift. Roco had been
working at the Mobil for a ‘few years,’ and primarily worked the
4
overnight shift. Ortiega had been working at the Mobil for a
couple of weeks and was being trained by Roco.
“Hasty did not see Roco and Ortiega. The window of the
bullet proof glass booth was open about 24 to 30 inches. The cash
register was inside this booth. Hasty walked to the clear bullet
proof glass door of the booth and saw Roco and Ortiega lying dead
on the floor. Hasty called 911.
“Los Angeles County Deputy Sherriff Tanya Brown
responded to the call. Deputy Brown observed that the Mobil’s
cash register was enclosed in a bullet proof glass booth, but the
window to the booth was open. Behind the cash register, Roco
and Ortiega were lying, dead. On the counter, there were three
‘Slim Jims’ and a pack of ‘Apple Sour Candies.’
“Roco had suffered a rapidly fatal gunshot wound to the
chest with an exit wound in his back. Ortiega had suffered a
rapidly fatal gunshot wound to her upper left back with the bullet
in the right side of her chest.
“Fingerprints were taken from the Slim Jims and Sour
Apple gummy candies. Five latent prints were found on the Slim
Jims. Sanford’s left middle fingerprint matched a print found on
one of the Slim Jims.
“On November 11, 2006, [petitioner] was interviewed by
Los Angeles County Sheriff’s Detective Dan McElderry and
Sergeant Ken Perry. [Petitioner] stated that when Sanford first
got into the Explorer, he showed them a revolver. Perez told
Sanford to put the gun in the back of the Explorer and he
complied. At the Mobil station, after Perez purchased gas,
[petitioner] suggested that they do a beer run. Sanford stated:
‘You gonna buy a beer, man you might as well just go in and rob
them.’ [Petitioner] agreed to hold the door open for Sanford.
5
“[Petitioner] said that he ‘always comes over here to this
gas station’ and that the clerk knew him and his family. Perez
told [petitioner] to take his shirt. [Petitioner] used this shirt to
cover his head. Sanford said to [petitioner]: ‘I’m going in there,
you just hold the door.’ [Petitioner] waited outside the Mobil for
about one minute, then went inside. He saw Sanford walk up to
the register and say: ‘Give me the money.’ The male clerk said:
‘[T]here’s no money. There’s a drop safe.’ Sanford said: ‘Man,
you got five seconds.’ The male clerk said: ‘Shoot me.’
[Petitioner] heard ‘two soft little pops.’ Sanford said: ‘Let’s get
out of here. Let’s get out of here.’ They ran back to the Explorer
and got inside. The Explorer drove off.
“Sanford testified in his own defense at trial. He went into
the Mobil to buy something to eat. He did not have a gun. As he
was walking toward the Mobil, he asked the occupants of the
Explorer whether they wanted anything. He saw Perez hand
[petitioner] a shirt. While Sanford was in the Mobil buying food,
[petitioner] came in the store and ordered the clerks to give him
money out of the cash register. When the clerk stated that the
money was in the drop safe, [petitioner] shot both clerks.
“[Petitioner] testified on his own behalf at trial. He stated
that Sanford had a gun when he got into the car. [Petitioner] did
not want to do a beer run, but agreed to hold the door for
Sanford. He put his shirt over his head because he knew the
male clerk. He did not see anyone with a gun. He did not know
that Sanford was armed. He believed that Sanford was going to
do a beer run, but Sanford instead brought candy to the counter.
Sanford leaned on the counter and said: ‘Give me the money.’
The male clerk replied: ‘There’s no money.’ Sanford said: ‘I ain’t
6
playing. You got five seconds.’ [Petitioner] ran back toward the
Explorer. As he was running, he heard two ‘pops.’”
II. Procedural Background
A jury convicted petitioner of two counts of first degree
murder (§ 187, subd. (a)) and two counts of attempted robbery
(§§ 211/664). The jury found true the special circumstance
allegations that the murders were committed while petitioner
was engaged in the attempted commission of a robbery or
burglary (§ 190.2, subd. (a)(17)) and that petitioner was convicted
of more than one first degree murder (§ 190.2, subd. (a)(3)). The
jury also found true the allegation that a principal was armed in
the commission of the offenses. (§ 12022, subd. (a)(1).) The trial
court sentenced petitioner to consecutive prison terms of life
without the possibility of parole on his murder convictions, plus
13 years and four months.
Petitioner appealed from the judgment of conviction,
arguing, among other things, that the evidence was insufficient
to support the jury’s robbery/burglary special circumstance
findings and that the trial court erred in instructing on the
multiple murder special circumstance allegations. We affirmed
the robbery/burglary special circumstance findings, struck the
multiple murder special circumstance findings, corrected
sentencing errors not relevant to petitioner’s instant petition for
writ of habeas corpus, and otherwise affirmed the judgment.
On June 17, 2010, petitioner filed a petition for writ of
habeas corpus in the California Supreme Court (S183620) in part
challenging the sufficiency of the evidence supporting the jury’s
robbery/burglary special circumstance findings. On January 19,
2011, the Supreme Court denied the petition.
7
On April 20, 2012, petitioner filed a petition for writ of
habeas corpus in this court (B240643) arguing that defense
counsel provided ineffective assistance in preparing for and
defending petitioner at trial. On May 17, 2012, we denied the
petition.
On June 11, 2012, petitioner filed a petition for writ of
habeas corpus in this court (B241768) arguing prosecutorial
misconduct and that the trial court erred in failing to give the
jury a unanimity instruction concerning the target offense he
allegedly committed for purposes of the felony murder guilty
verdicts and the robbery/burglary special circumstance findings.
On June 29, 2012, we denied the petition on the merits and as
procedurally defaulted.
On October 1, 2012, petitioner filed a petition for writ of
habeas corpus in the California Supreme Court (S204300)
challenging the sufficiency of the evidence supporting the jury’s
robbery/burglary special circumstance findings. On October 17,
2012, citing In re Clark (1993) 5 Cal. 4th 750, 767-769, the
Supreme Court denied the petition.
On December 1, 2015, after our Supreme Court decided
Banks, supra, 61 Cal. 4th 788, petitioner filed a motion in this
court to recall the remittitur and for leave to file a supplemental
brief based on Banks. On December 10, 2015, we denied the
motion on the grounds that Banks “does not represent a change
in the law” and “provides no basis for relief under the facts of this
case.”
On January 14, 2016, petitioner filed the instant petition
for writ of habeas corpus in the California Supreme Court
claiming he was entitled to relief under Banks, supra, 61 Cal. 4th
788. On April 20, 2016, the Supreme Court requested an
8
informal response on the merits. After the Department of
Corrections and Rehabilitation filed an informal response and
petitioner filed a reply to the informal response, the Supreme
Court ordered the Secretary of the Department of Corrections
and Rehabilitation to show cause in this court why petitioner is
not entitled to the relief requested.
DISCUSSION
I. Sufficient Evidence Supports the Jury’s
Robbery/Burglary Special Circumstance Findings
Petitioner contends that insufficient evidence supports the
jury’s robbery/burglary special circumstance findings because the
evidence fails to show that he was a major participant who acted
with reckless indifference to human life. We disagree.
A. Standard of Review
“The standard of review for a sufficiency of the
evidence claim as to a special circumstance is whether,
when evidence that is reasonable, credible, and of solid
value is viewed ‘in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the allegation beyond a reasonable
doubt.’ [Citations.] The standard is the same under the
state and federal due process clauses. [Citation.] We
presume, in support of the judgment, the existence of every
fact the trier of fact could reasonably deduce from the
evidence, whether direct or circumstantial. [Citation.]”
(Clark, supra, 63 Cal.4th at p. 610.)
9
B. The Enmund-Tison Continuum
Two United States Supreme Court decisions, Enmund,
supra, 458 U.S. 782 and Tison, supra, 481 U.S. 137, help define
the constitutional limits for punishing accomplices to felony
murder. (Banks, supra, 61 Cal.4th at p. 806.) The defendants’
conduct in those cases represent points on a continuum, a
spectrum of culpability for felony-murder participants. (Id. at pp.
800, 802, 811.) At one end of this Enmund-Tison continuum is
“‘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.]” (Banks, supra, 61 Cal.4th at p. 800.)
At the other end are the “actual killers and those who attempted
or intended to kill. [Citation.]” (Ibid.) “Somewhere between
them, at conduct less egregious than the Tisons’ but more
culpable than . . . Enmund’s lies the constitutional minimum”
showing required for the imposition of death or life without the
possibility of parole. (Id. at p. 802.)
In Banks, supra, 61 Cal. 4th 788, our Supreme Court
summarized the conduct of the defendant at issue in Enmund,
supra, 458 U.S. 782 as follows: “Earl Enmund purchased a calf
from victim Thomas Kersey and in the process learned Kersey
was in the habit of carrying large sums of cash on his person. A
few weeks later, Enmund drove two armed confederates to
Kersey’s house and waited nearby while they entered. When
Kersey’s wife appeared with a gun, the confederates shot and
killed both Kerseys. Enmund thereafter drove his confederates
away from the scene and helped dispose of the murder weapons,
which were never found. He was convicted of robbery and first
degree murder and sentenced to death. [Citations.]” (Banks,
supra, 61 Cal.4th at p. 799.)
10
Our Supreme Court explained that in Enmund, supra, 458
U.S. 782, the United States Supreme 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.’
(Enmund v. Florida, supra, 458 U.S. at p. 795.) 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.’ (Enmund, at p. 797.) The intent to
commit an armed robbery is insufficient; absent the further
‘intention of participating in or facilitating a murder’ (id. at p.
798), 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’ (id. at p. 788) cannot constitutionally be sentenced to
death.” (Banks, supra, 61 Cal.4th at p. 799.)
In Banks, supra, 61 Cal. 4th 788, our Supreme Court
summarized the conduct of the defendants at issue in Tison,
supra, 481 U.S. 137 as follows: “Prisoner Gary Tison’s sons
Ricky, Raymond, and Donald Tison conducted an armed breakout
of Gary and his cellmate from prison, holding guards and visitors
at gunpoint. During the subsequent escape, their car, already
down to its spare tire, suffered another flat, so the five men
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 Donald drove the family into the desert
in the Tisons’ original car with the others following. Ricky and
the cellmate removed the family’s possessions from their car and
transferred the Tison gang’s possessions to it; Gary and his
11
cellmate then killed all four family members. When the Tisons
were later apprehended at a roadblock, Donald was killed and
Gary escaped into the desert, only to die of exposure. ([Tison,
supra, 481 U.S.] at pp. 139-141.) Ricky and Raymond Tison and
the cellmate were tried and sentenced to death. The trial court
made findings that Ricky and Raymond’s role in the series of
crimes was ‘“very substantial”’ and they could have foreseen their
actions would ‘“create a grave risk of . . . death.”’ (Id. at p. 142.)
The Arizona Supreme Court denied relief. (Id. at pp. 143-145.)”
(Banks, supra, 61 Cal.4th at pp. 799-800.)
Our Supreme Court explained that in Tison, supra, 481
U.S. 137, “[t]he United States Supreme Court granted Ricky’s
and Raymond’s petitions to consider the application of Enmund
to these facts. The court began by discussing at length and
endorsing Enmund’s holding that the Eighth Amendment limits
the ability of states to impose death for ‘felony murder
simpliciter.’ (Tison v. Arizona, supra, 481 U.S. at p. 147.)
Specifically, 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.’ (Id. at p. 149.) At the other extreme
were actual killers and those who attempted or intended to kill.
(Id. at p. 150.) Under Enmund, Tison held, death was
disproportional and impermissible for those at the former pole,
but permissible for those at the latter. (Ibid.) 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.’ (Ibid.) Here, the court
12
announced, ‘major participation in the felony committed,
combined with reckless indifference to human life, is sufficient to
satisfy the Enmund culpability requirement.’ (Id. at p. 158.)
This is the language the [California] electorate codified in section
190.2(d).” (Banks, supra, 61 Cal.4th at p. 800.)
As the codification of the principles set forth in Enmund
and Tison, section 190.2, subdivision (d) 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
2
been found to be true under Section 190.4.” Section 190.2,
subdivision (d) “thus imposes both a special actus reus
requirement, major participation in the crime, and a specific
mens rea requirement, reckless indifference to human life.”
(Banks, supra, 61 Cal.4th at p. 798, fn. omitted.) There is
significant overlap between being a major participant and having
reckless indifference to human life. (Clark, supra, 63 Cal.4th at
pp. 614-615.)
2
Murder in the attempted commission of a robbery is a
special circumstance under section 190.2, subdivision (a)(17)(A).
13
C. Petitioner’s Placement Along the Enmund-Tison
Continuum
Considering the “totality of the circumstances,” we find
that the specific facts of petitioner’s case place his conduct and
state of mind on that side of the Enmund-Tison continuum
sufficient to support the section 190.2 robbery/burglary special
circumstance findings. (Banks, supra, 61 Cal.4th at p. 802.)
1. Major Participant
In deciding whether a defendant was a major participant in
a special circumstance felony under section 190.2, subdivision (d),
our Supreme Court has identified the following factors for
consideration: “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? [Fn. omitted.] 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.” (Banks, supra, 61 Cal.4th at p. 803; accord Clark,
supra, 63 Cal.4th at p. 611.)
Substantial evidence of several factors relating to
petitioner’s role in the attempted robberies supports the
conclusion that he was a major participant. Evidence certainly
supports the finding that petitioner participated in planning the
robbery. Indeed, the record contains evidence that petitioner first
14
came up with the idea to steal from the Mobil station by
suggesting they do a “beer run”—i.e., grab beer and run out of the
store without paying for it. When Sanford embellished on
petitioner’s original plan by suggesting they might as well rob the
Mobil station, petitioner not only agreed to do so, but additionally
volunteered that he would hold the door open to make sure
3
Sanford could escape. And while we recognize that the Mobil
station robbery did not require particularly sophisticated
planning, petitioner nonetheless played a significant and
relatively equal role vis-à-vis the other participants (namely
Sanford and Perez) who contributed to what planning was
necessary to accomplish it.
Also, with respect to the planning and execution of the
armed robbery, evidence supports the conclusion that petitioner
was responsible for making sure that Sanford had the gun.
Graeff told the police that petitioner took possession of Sanford’s
gun and put it in the back of the vehicle when Sanford first joined
up with petitioner and his friends. Graeff also told police that,
when it came time to prepare for the robbery, petitioner then
handed the gun to Sanford. From this, the conclusion may
reasonably be drawn that petitioner personally handled the
3
The idea to hold the door open was important to the
robbery plan. The jury heard evidence that Sanford had
previously been briefly trapped inside a CVS Pharmacy from
which he tried to steal liquor because someone locked the door on
him. Similarly, Perez’s brother had been trapped in an AM/PM
mini-mart during an attempted “beer run” when someone
jammed the door shut. Notably, the jury could have found that
petitioner fully appreciated the importance of holding the door
open because he had been outside the AM/PM when Perez’s
brother was previously trapped.
15
murder weapon and was responsible for supplying it to the
shooter for use in the robbery. Indeed, it is noteworthy that, to
do so, petitioner necessarily took the additional deliberate step of
retrieving the gun from the back of the vehicle in which it had
been stowed away to ensure that Sanford would have it available
to execute the planned robbery.
The evidence also supports the conclusion that petitioner
possessed awareness of Sanford’s dangerousness and careless
attitude toward killing. When Sanford approached Perez’s
vehicle, Sanford told petitioner and the others that he had just
shot someone in the head. And although Graeff testified that the
vehicle’s occupants believed Sanford was kidding, the jury did not
have to credit Graeff’s personal belief and speculation as to how
everyone else—including petitioner—interpreted Sanford’s
statement. Moreover, even if Sanford had not, in fact, just shot
4
someone, and even if petitioner did not entirely believe Sanford
had just done so, Sanford’s statement at the very least revealed
that petitioner with eyes wide open embarked upon an armed
robbery with the type of cohort who callously bragged about
having shot another human being moments earlier—indeed,
apparently in a kidding manner. From this, the jury could have
concluded that petitioner was well aware of the particular
4
Petitioner argues that Sanford’s “claim to have shot
someone in the head was not shown to be of a character to be
taken seriously” because the prosecution did not present evidence
that someone in the vicinity of where Sanford entered Perez’s
vehicle had been shot on the night of the murders. This is beside
the point because the relevant focus is on whether petitioner
knew Sanford had done so or believed Sanford had done so
(whether or not Sanford actually had).
16
dangers posed by arming Sanford for the robbery they jointly
planned.
We also find particularly significant in determining
petitioner’s status as a major participant his physical presence at
the scene, involvement in the actual robbery, and inaction either
in attempting to prevent the shootings or in assisting the victims.
In Banks, supra, 61 Cal.4th at page 803, footnote 5, our Supreme
Court noted, “In cases where lethal force is not part of the agreed-
upon plan, absence from the scene may significantly diminish
culpability for death. [Citation.] Those not present have no
opportunity to dissuade the actual killer, nor to aid the victims,
and thus no opportunity to prevent the loss of life. Nor,
conversely, are they in a position to take steps that directly and
immediately lead to death . . . .” As a corollary, there may be
significantly greater culpability for accomplices who are present.
In Tison, supra, 481 U.S. at page 158, the defendants were found
to be major participants because each “was actively involved in
every element of the kidnapping-robbery and was physically
present during the entire sequence of criminal activity
culminating in the murder” of the victims. (See Banks, supra, 61
Cal.4th at p. 803, fn. 5 [noting Tison’s emphasis on the
defendants’ “physical presence and active involvement in every
step”].)
Here, petitioner went to the Mobil station convenience
store with Sanford. He then held the door for Sanford to allow for
an escape once the robbery was complete. Petitioner watched
Sanford walk up to the register and continued to hold the door
open as Sanford demanded money, warned one of the clerks he
would shoot, gave that clerk five seconds to turn over the money,
and then shot both clerks. When Sanford told the clerk he had
17
five seconds to give Sanford the money and began counting down,
petitioner did not intercede in any way. Instead, by continuing to
hold the door for Sanford, petitioner provided safe passage out of
the store immediately after the shooting. Further, after Sanford
shot both clerks, defendant fled with Sanford to Perez’s vehicle
and instructed Perez to flee, exclaiming, “Man, just go, just go,
just go, just get out of here, man. Just go.”
On this record, we conclude there was substantial evidence
that petitioner was a major participant. Far from being akin to a
minor participant “getaway driver, sitting in a car away from the
murder” (Banks, supra, 61 Cal.4th at pp. 802-803), petitioner
helped plan the robbery, provided the shooter with the gun even
after the shooter boasted he had just shot someone in the head,
was on scene for the robbery and held the door open to guarantee
an escape, stood by watching as the killer counted down to the
murder, rendered no assistance to either victim, and instead fled
the scene with the murderer while screaming at the getaway
driver to “just go.” Considering such conduct in its totality, we
hold that petitioner falls squarely on the “major participant” side
of the Enmund-Tison continuum. (Cf. Banks, supra, 61 Cal.4th
at p. 805 [defendant was not a major participant where he was
“absent from the scene” and there was “no evidence” of defendant
planning the robbery, “no evidence” of defendant procuring
weapons, “no evidence” defendant or the other participants had
previously committed any other violent crime, and “no evidence
[defendant] saw or heard the shooting . . . or that he had any
immediate role in instigating it or could have prevented it”].)
18
2. Reckless Indifference to Human Life
“[T]he culpable mental state of ‘reckless indifference to life’
is one in which the defendant ‘knowingly engag[es] in criminal
activities known to carry a grave risk of death’ [citation] . . . .”
(People v. Estrada (1995) 11 Cal. 4th 568, 577.) “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.) “[I]t
encompasses a willingness to kill (or to assist in another killing)
to achieve a distinct aim, even if the defendant does not
specifically desire that death as the outcome of his actions.”
(Clark, supra, 63 Cal.4th at p. 617.)
Relying on the Model Penal Code definition of acting
5
recklessly, our Supreme Court in Clark, supra, 63 Cal.4th at
page 617 explained that recklessness has both 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
5
“The Model Penal Code generally defines acting recklessly
as follows: ‘A person acts recklessly with respect to a material
element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk must be of such a
nature and degree that, considering the nature and purpose of
the actor’s conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct
that a law-abiding person would observe in the actor’s situation.’
(Model Pen. Code § 2.02, subd. (2)(c).) [Fn. omitted.]” (Clark,
supra, 63 Cal.4th at p. 617.)
19
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.) “[A]lthough
the presence of some degree of defendant’s subjective awareness
of taking a risk is required, it is the jury’s objective determination
that ultimately determines recklessness.” (Id. at p. 622.)
Our Supreme Court has identified the following factors to
consider in determining whether a defendant acted with reckless
indifference to human life: knowledge of weapons, and use and
number of weapons; physical presence at the crime and
opportunities to restrain the crime and/or aid the victim;
duration of the felony; defendant’s knowledge of a cohort’s
likelihood of killing; and the defendant’s efforts to minimize the
risks of the violence during the felony. (Clark, supra, 63 Cal.4th
at pp. 618-623.) As with the factors identified in Banks, supra,
61 Cal.4th at page 803 for determining major participant status,
no one of the factors for determining reckless indifference “‘is
necessary, nor is any one of them necessarily sufficient.’
[Citation.]” (Clark, supra, 63 Cal.4th at p. 618.)
Substantial evidence supports the conclusion that
petitioner acted with reckless indifference to human life. In this
regard, we note that factors demonstrating petitioner’s role as a
major participant are highly relevant to the analysis of whether
he acted with reckless indifference. (Tison, supra, 481 U.S. at p.
153 [“These requirements significantly overlap both in this case
and in general, for the greater the defendant’s participation in
the felony murder, the more likely that he acted with reckless
indifference to human life”]; see also Clark, supra, 63 Cal.4th at
p. 615 [noting Tison’s observation that although the requirements
are stated separately, “they often overlap”].)
20
As discussed above, more than simply knowing Sanford
would use a gun during the robbery, petitioner supplied Sanford
with it immediately beforehand. This is a significant factor
indicating petitioner’s reckless indifference because, as also
discussed above, Sanford told petitioner that he had just shot
someone in the head, which put petitioner on notice of the
increased likelihood of Sanford’s willingness to use the gun.
Indeed, evidence adduced at trial indicates that petitioner
actually harbored concern about Sanford’s potential instability
and readiness to use the gun, as petitioner wanted Sanford to put
away the gun when Sanford initially approached petitioner in
Perez’s car because Sanford appeared to be “a little jumpy, a little
jitterish.”
Further, to the extent there is doubt as to petitioner’s
reckless indifference when he put the gun back into the hands of
a jumpy and jittery Sanford before entering the store, any
objective observer would have appreciated the grave risk to life
once Sanford entered the store and demanded money from the
clerk while counting down from five and threatening to shoot.
(See Clark, supra, 63 Cal.4th at p. 619 [noting reckless
indifference of an observing accomplice might be found where
“the murder is 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”]; People v. Smith (2005) 135
Cal. App. 4th 914, 927-928 [a jury may find that a defendant
“gained a ‘subjective awareness of a grave risk to human life’”
during the commission of the crime].) In this regard, it is
noteworthy that the shooting was not spontaneous or accidental;
rather, Sanford made clear his intent to shoot, which afforded
21
petitioner the time to observe and react before the murder. (Cf.
Banks, supra, 61 Cal.4th at p. 807 [finding no reckless
indifference where the killing “was apparently a spontaneous
response to armed resistance from the victim”]; see also Clark,
supra, 63 Cal.4th at p. 619 [noting that, for a defendant who had
the opportunity to “observe his cohorts,” it “is fair to conclude
that he shared in their actions and mental state”].)
As with petitioner’s role as a major participant, we find
particularly significant in concluding that petitioner acted with
reckless indifference his physical presence at the scene and his
failure to make any attempt to prevent the shootings or to assist
the victims. In Clark, our Supreme Court noted that the United
States Supreme Court in Tison, supra, 481 U.S. at page 158
“stressed the importance of presence to culpability.” (Clark,
supra, 63 Cal.4th at p. 619.) A defendant who is present has “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.]” (Ibid.) A defendant who is present also
has the opportunity to assist the victim. (Ibid.)
But petitioner neither intervened to dissuade Sanford from
shooting either clerk nor came to either clerk’s aid after the
shootings. Instead, petitioner manned the escape route while
Sanford shot the clerks and then fled to avoid being caught.
Petitioner now claims he had no opportunity to intervene in the
killings, arguing: “[The] record shows that Sanford demanded
money and the male clerk said there was no money because there
was a ‘drop safe.’ Sanford threatened to shoot the clerks, saying,
‘I ain’t playing,’ and telling the clerks they had five seconds. The
male clerk replied, ‘Shoot me,’ and Sanford shot him. This does
22
not show that Sanford actually gave the clerks five seconds so
that petitioner had time to intervene.”
A rational jury could disagree with petitioner’s view of the
evidence. During his interview with law enforcement officers,
petitioner said Sanford told the clerk that he had five seconds to
give Sanford the money. Graeff also testified that Sanford said
he had “counted down” before he shot the clerk. Sufficient
evidence thus supports the conclusion that Sanford counted down
6
from five to one before shooting the clerks. And in those five
seconds, petitioner could have done any number of things to
intercede or assist the victims—e.g., yell at Sanford to stop, try to
halt the countdown, demand that they leave, distract Sanford, or
attempt to calm Sanford, to name a few. But instead petitioner
did nothing during that crucial time period other than stand idly
by with indifference—with reckless indifference to human life, to
be precise.
Finally, petitioner argues that some meaning should be
ascribed to his “hysterical” demeanor upon returning to Perez’s
vehicle after the shootings when he exclaimed: “You just shot
them. You just shot them. You just shot them. I can’t believe
you just shot them.” According to petitioner, this reaction “was
not consistent with a realization, before the shootings, that
Sanford would shoot someone during the robbery.” We disagree.
Petitioner’s reaction to the murder evidences that he may have
been surprised Sanford ultimately killed the store clerks, but, as
our Supreme Court observed in Clark, the majority in Tison was
unconvinced that the defendants’ expressions of “‘surprise,
6
Even Sanford testified that the shooter gave the clerk four
seconds to get money from the safe—though Sanford testified the
shooter was petitioner and not him.
23
helplessness, and regret’ over their father’s shooting of the
kidnap victim (Tison, supra, 481 U.S. at p. 166 [Brennan, J.,
dissenting])” was necessarily sufficient to prevent a finding of
reckless indifference to human life. (Clark, supra, 63 Cal.4th at
p. 623.)
Here, we must look at the totality of the circumstances. In
so doing, we hold that sufficient evidence supports the jury’s
finding that petitioner’s participation in and presence during the
armed robbery exhibited a reckless indifference to human life,
notwithstanding any surprise he may have exhibited after the
fact.
II. Procedural Bars
The People argue that petitioner’s claim that insufficient
evidence supports the jury’s robbery/burglary special
circumstance findings is procedurally barred because: (1) the
claim was raised and rejected on direct appeal (In re Waltreus
(1965) 62 Cal. 2d 218); (2) the claim was raised in a prior petition
for writ of habeas corpus and denied (In re Miller (1941) 17
Cal. 2d 734); and (3) the claim that evidence adduced at trial was
insufficient is not cognizable in a habeas petition (In re Lindley
(1947) 29 Cal. 2d 709). Because we agree with the People on the
merits—i.e., that sufficient evidence supports the jury’s
robbery/burglary special circumstance findings—we need not
address the People’s asserted procedural bars.
24
DISPOSITION
The petition for writ of habeas corpus is denied.
CERTIFIED FOR PUBLICATION
KIN, J.
We concur:
KRIEGLER, Acting P. J.
BAKER, J.
 Judge of the Superior Court of the County of Los Angeles,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
25