55 Cal.App.5th 1077
Cal. Ct. App.2020Background
- In January 2000 Bascomb and a codefendant ("Blue") forced entry into an apartment to rob a known marijuana dealer; Blue shot and killed the dealer while Bascomb held a gun on another resident and prevented intervention.
- Bascomb admitted he planned the robbery, drove to the apartment, carried a gun, told Flores to lie down, held the gun on Flores, fled immediately after the shooting, and later made inculpatory statements to his girlfriend and police.
- In 2005 a jury convicted Bascomb of first‑degree felony murder and assault with a deadly weapon; he was sentenced to 25 years to life plus a consecutive two‑year term.
- SB 1437 (2018) narrowed felony‑murder liability and §1170.95 created a procedure for petitioning to vacate pre‑amendment felony‑murder convictions if the petitioner could not be convicted under the new standards.
- Bascomb filed a §1170.95 petition in 2019. After the parties stipulated to decide the matter from the record of conviction, the trial court found beyond a reasonable doubt that Bascomb was a major participant who acted with reckless indifference to human life and denied the petition.
- The Court of Appeal affirmed, holding there was substantial evidence Bascomb acted with reckless indifference under the Banks/Clark framework.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Bascomb) | Held |
|---|---|---|---|
| Whether the record supports that Bascomb, a non‑shooter, was a major participant who acted with reckless indifference to human life under amended felony‑murder law and §1170.95 | Bascomb planned the home invasion of a known drug dealer, armed himself, physically restrained victims with a gun (enabling Blue to go to the bedroom), fled after the shooting, and thus was subjectively aware of and willingly involved in the violent, life‑endangering scheme | Bascomb did not intend to kill, used only necessary force to subdue victims, lacked specific awareness of a lethal risk (chose a daytime hour), and therefore did not meet the subjective reckless‑indifference standard | Affirmed. The record contains substantial evidence Bascomb planned and executed an armed residential robbery, used a firearm to control victims (facilitating the killing), and thus acted with reckless indifference to human life |
Key Cases Cited
- People v. Banks, 61 Cal.4th 788 (2015) (sets multi‑factor test for whether a major participant acted with reckless indifference)
- People v. Clark, 63 Cal.4th 522 (2016) (applies Banks factors; held insufficient evidence of reckless indifference where defendant was not present at killing and gun was not intended to be loaded)
- Tison v. Arizona, 481 U.S. 137 (1987) (U.S. Supreme Court discussion of spectrum of culpability for felony participants)
- Enmund v. Florida, 458 U.S. 782 (1982) (limits on imputed intent for nonkillers in felony murders)
- People v. Chun, 45 Cal.4th 1172 (2009) (background on felony‑murder rule and malice)
- In re Bennett, 26 Cal.App.5th 1002 (2018) (discusses subjective awareness/willing involvement requirement for reckless indifference)
- People v. Law, 48 Cal.App.5th 811 (2020) (recognizes that defendants who personally committed armed robberies, used guns, and were present for shootings typically meet the Banks/Clark standard)