In re Taylor
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In 2018, Taylor filed the instant petition for a writ of habeas corpus seeking to have the special circumstance vacated under People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified “what it means for an aiding and abetting defendant to be a ‘major participant’ who acted with a ‘reckless indifference to human life.‘” (In re Miller (2017) 14 Cal.App.5th 960, 964 (Miller).) Under this authority, a defendant acts with a reckless indifference to human life when he or she “knowingly creat[es] a ‘grave risk of death.‘” (Banks, at p. 808.) We hold that evidence of a defendant‘s actions after a murder betraying an indifference to the loss of life does not, standing alone, establish that the defendant knowingly created
I. FACTUAL AND PROCEDURAL BACKGROUND
The following facts about the murder are taken from this court‘s unpublished opinion in Taylor‘s direct appeal, People v. Davis (Mar. 14, 1996, A065553).
“On the night of May 15, 1991, 70-year-old Kathryn Cary was shot and killed as she was making a night deposit of the receipts of the liquor store where she was employed. There was evidence that Marzett Davis, Anthony Taylor, Tyree Shackelfoot[,] and Theodore Lawless had planned to rob the store‘s receipts, and that Davis attempted the robbery and shot Cary while the other men waited in a car driven by Taylor. . . .
“At least one week before the crimes, Taylor and Shackelfoot were in the parking lot of Ernie‘s Liquor Store watching Ernie, an employee, walk with the store‘s receipts to a nearby bank. They discussed the fact that Ernie‘s did not seem to be taking any precautions to prevent theft of the receipts. On May 14, Taylor drove to Shackelfoot‘s house. Davis, with Lawless in the car, drove by. Taylor flagged Davis to follow him. They then drove to Ernie‘s. Davis joined Taylor and Shackelfoot in their car, where they told him about the lack of security at the liquor store. They planned a robbery, deciding where they would park the car, where the person who was to take the money would stand, and how they could get away after the robbery. They at first planned to commit the robbery over the weekend, but when they realized that the liquor store‘s take for May 15 would be swollen by Lotto receipts, they decided to commit the offense on that date. The plan was that Davis would grab the sack of receipts as a store employee was depositing it in a bank night-deposit box. He would then run to the car where the others were waiting, and they would make their escape. On the night of May 15 the men met at Taylor‘s apartment. Everyone but Davis got into Taylor‘s car. Davis went to his own
The jury found Taylor guilty of first degree murder as an aider and abettor of Davis in the attempted robbery and found true the allegation that Taylor or a principal was armed during the offense and aided and abetted the robbery as a major participant and with reckless indifference to human life. The jury also convicted Taylor of attempted
Taylor appealed, and this division affirmed the judgment in its 1996 unpublished opinion. Among other claims, he argued that insufficient evidence supported the special circumstance. The opinion rejected the claim as follows:
“Taylor argues that he was not a ‘major participant’ because he was not present at the time of the killing, was unarmed, and was assigned the role of driving the getaway car. Taylor erroneously focuses on the question of whether he was a major participant in the killing. The correct focus is whether he was a major participant in the underlying felony; i.e., here, the robbery. Although Taylor likes to paint himself as little more than a bystander who sat quietly in the car with no idea of what Davis was doing, there was significant evidence that Taylor conceived of the idea of committing the robbery, planned it, and solicited Davis to participate in it. It also appeared that Taylor was the decision-maker. Thus, when Davis returned to the car on the assumption that the receipts already had been deposited, Taylor directed him to return to the selected place. In addition, after the crime, Taylor wouldn‘t let Davis back in the car, telling him to keep going and picking him up only later. The evidence therefore discloses that Taylor was a major participant in the robbery.
“Taylor also argues that the evidence does not support the argument that he acted with reckless indifference to human life. The court in Tison v. Arizona (1987) 481 U.S. 137 [(Tison)] . . . described the requisite mental state as follows: ‘the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a
grave risk of death.’ [Citation.] The court in the recent case of People v. Estrada (1995) 11 Cal.4th 568 explained that the phrase ’ “reckless indifference to human life” ’ means that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death. [Citation.] Here, there was evidence that Taylor planned the crime, and in order to implement it recruited Davis, a man he knew to have a fondness for weapons. A reasonable inference is that Taylor selected Davis in part because he expected that violence might be necessary. After the violence did in fact occur, Taylor, who, as the driver and the person in charge could have come to the victim‘s aid, simply drove off, later stating[,] ‘Fuck that old bitch.’ The evidence, accordingly, supports a finding that Taylor had a subjective appreciation that his participation in the crime involved a grave risk of death and that he was not just recklessly indifferent to that risk, but callously indifferent. The findings that both prongs of the special circumstances allegation were present, therefore, were supported by the evidence.”
Ten years later, in July 2016, Taylor filed a petition for a writ of habeas corpus in the superior court, claiming that the special circumstance could not stand under the Supreme Court‘s 2015 decision in Banks. After the superior court denied the petition, Taylor petitioned for habeas relief in this court, again relying on Banks. We summarily denied the petition in June 2017. (In re Taylor (Jun. 15, 2017, A151364).)
Taylor then filed a petition for a writ of habeas corpus in our state Supreme Court raising the same issue. In September 2018, the Supreme Court issued an order to show cause “why petitioner is not entitled [to] relief under [Banks].”3 The case was transferred to this court, and we ordered counsel appointed for Taylor. After the Attorney General
II. DISCUSSION
A. The Felony-murder Special Circumstance.
Murder “committed in the perpetration of, or attempt to perpetrate, . . . robbery . . . is murder of the first degree.” (Former
Until 1990, “state law made only those felony-murder aiders and abettors who intended to kill eligible for a death sentence.” (Banks, supra, 61 Cal.4th at p. 798.) That year, the voters passed Proposition 115, which made eligible for death “every person, not the actual killer, who, with reckless indifference to human life and as a major participant,” aids and abets a specified felony, including robbery, that “results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, . . . if a[n enumerated] special circumstance . . . has been found to be true.” (
B. Banks, Clark, and the Tison-Enmund Continuum.
As our state Supreme Court observed in Banks, “[s]ection 190.2(d) was designed to codify the [United States Supreme Court‘s] holding [in] Tison . . . , which articulates the constitutional limits on executing felony murderers who did not personally kill. Tison and a prior decision on which it is based, Enmund v. Florida (1982) 458 U.S. 782 [(Enmund)], collectively place conduct on a spectrum, with felony-murder participants eligible for death only when their involvement is substantial and they demonstrate a reckless indifference to the grave risk of death created by their actions.” (Banks, supra, 61 Cal.4th at p. 794.) Banks concluded that
Beginning with the principle that “in capital cases above all, punishment must accord with individual culpability,” Banks explained that the death penalty cannot be imposed based solely on a defendant‘s “vicarious responsibility for the underlying crime.” (Banks, supra, 61 Cal.4th at p. 801.) Rather, to be sentenced to death, a defendant must, compared to “an ordinary aider and abettor to an ordinary felony murder,” have both a more culpable mind state—reckless indifference to the risk of death—and more substantial involvement—as a major participant. (Id. at pp. 801-802.)
In Enmund, the defendant learned that a man “was in the habit of carrying large sums of cash on his person. A few weeks later, [the defendant] drove two armed confederates to [the man‘s] house and waited nearby while they entered. When [the man‘s] wife appeared with a gun, the confederates shot and killed [the couple]. [The defendant] thereafter drove his confederates away from the scene and helped dispose of the murder weapons, which were never found.” (Banks, supra, 61 Cal.4th at p. 799.) The United States Supreme Court reversed the death sentence, concluding that the Eighth Amendment barred such punishment “for any felony-murder aider and abettor ‘who does not himself [or herself] kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.’ ” (Ibid.)
In Tison, the defendants “helped plan and carry out the escape of two convicted murderers from prison,” one of whom had killed a guard during a previous escape. (Banks, supra, 61 Cal.4th at p. 802.) “This entailed [the defendants‘] bringing a cache of weapons to prison, arming both murderers, and holding at gunpoint guards and visitors alike.” (Ibid.) During the escape, the defendants robbed and held at gunpoint an innocent family “while the two murderers deliberated whether the family should live or die,” and the defendants “then stood by” while the murderers shot all four family members. (Ibid.) The United States Supreme Court affirmed the death sentences, holding that ” ‘major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.’ ” (Id. at p. 800.)
Applying these factors, Banks held there was insufficient evidence that the defendant in the case before it was a major participant in the underlying robbery. (Banks, supra, 61 Cal.4th at p. 805.) The evidence showed that the defendant had “dropped his confederates off near [a marijuana] dispensary” and “waited three blocks away for approximately 45 minutes.” (Id. at pp. 795, 805.) After a security guard attempted to stop the robbers, all of whom were armed, one of them shot and killed him. (Id. at p. 795.) The defendant then headed toward the dispensary, picked up the other two non-shooters, and drove them away. (Id. at pp. 795-796, 805.) Our state Supreme Court concluded that the defendant was “at the Enmund pole of the Tison-Enmund spectrum,” as there was no evidence that he planned the robbery or procured weapons, knew the shooter had previously committed a violent crime, or was present at the scene or even aware that a shooting had occurred. (Id. at p. 805.) The Court also concluded that the defendant had not exhibited reckless indifference to human life, emphasizing that a defendant‘s knowing participation in an armed robbery and subjective awareness of “the risk of death inherent in [that crime]” does not suffice. (Id. at pp. 807-808.) Rather, a defendant must appreciate that his or her “own actions would involve a grave risk of death.” (Id. at p. 807.)
Clark expounded on the meaning of the “reckless indifference to human life” element of a special circumstance under
Applying these factors to the facts, Clark concluded there was insufficient evidence that the defendant had acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 623Clark defendant ” ‘was the mastermind who planned and organized [an] attempted robbery [of a computer store] and who was orchestrating the events at the scene of the crime.’ [Citation.] During the robbery, one of [the defendant‘s] accomplices . . . shot and killed the mother of a store employee who arrived at the store to pick up her son. At the time of the shooting, [the defendant] was not at the store, but he drove to the location shortly thereafter and fled when he saw a woman lying on the ground, the police approaching, and [the shooter] fleeing the scene.” (Bennett, supra, 26 Cal.App.5th at pp. 1014-1015, quoting Clark, at p. 612.) Despite the evidence of the defendant‘s significant involvement in planning the robbery, there was also evidence that he “planned the crime with an eye to minimizing the possibilities for violence,” because it was timed for after the store closed and there were not supposed to be bullets in the gun. (Clark, at pp. 621-623Id. at p. 622.)
C. Taylor‘s Claim Is Not Procedurally Barred.
Before reaching the merits of Taylor‘s claim, we address the Attorney General‘s contentions that it is procedurally barred because (1) it was raised and rejected on appeal; (2) substantial-evidence claims are not cognizable in habeas proceedings; and (3) the petition is untimely. We do so “out of an abundance of caution,” as “[w]ere there a valid procedural bar, we would have expected [our state] Supreme Court to deny the petition rather than issuing an order to show cause returnable before this court.” (Ramirez, supra, 32 Cal.App.5th at p. 406, fn. 11.)
The Attorney General begins by invoking the same two procedural rules that he relied on in Miller and Ramirez. (Ramirez, supra, 32 Cal.App.5th at pp. 407-408; Miller, supra, 14 Cal.App.5th at pp. 977-979.) First, under In re Waltreus (1965) 62 Cal.2d 218 (Waltreus), ” ‘legal claims that have previously been raised and rejected on direct appeal ordinarily cannot be reraised in a collateral attack by filing a petition for a writ of habeas corpus.’ ” (Miller, at p. 978.) And second, under In re Lindley (1947) 29 Cal.2d 709 (Lindley), ” ‘routine claims that the evidence presented at trial was insufficient’ ” cannot be raised in a habeas petition. (Miller, at p. 979.)
In concluding these rules did not bar the petitioner‘s claim in Miller, the Second District Court of Appeal “beg[a]n with an overarching, dispositive point: Federal due process guarantees require reversal of [a] special circumstance finding [that is not supported by substantial evidence] regardless of the Attorney General‘s California-law based procedural arguments.” (Miller, supra, 14 Cal.App.5th at p. 977; accord Ramirez, supra, 32 Cal.App.5th at pp. 406-407.) As Miller explained, in Fiore v. White (2001) 531 U.S. 225 (Fiore), the United States Supreme Court held that where, as here, a state high court‘s decision ” ’ “did not announce a new rule of law” ’ but rather ’ “merely
In urging us not to follow Miller (and by extension, Ramirez), the Attorney General ignores Miller‘s conclusion that a special circumstance that lacks substantial evidence cannot stand under Fiore. Instead, he claims that Miller‘s reasoning “cannot be squared with Waltreus or Lindley.” We fully agree with Miller‘s explanation of why, even apart from federal law, these rules do not bar claims such as Taylor‘s, and we find it unnecessary to reiterate that reasoning here. (Miller, supra, 14 Cal.App.5th at p. 978; accord Ramirez, supra, 32 Cal.App.5th at p. 408.)
The Attorney General also raises a potential procedural bar not considered in either Miller or Ramirez: that the petition is untimely because of Taylor‘s “[u]njustified delay” in bringing it.5 “A criminal defendant mounting a collateral attack on a final judgment of conviction must do so in a timely manner. ‘It has long been required that a petitioner explain and justify any significant delay in seeking habeas corpus relief.’ ” (In re Reno (2012) 55 Cal.4th 428, 459.) In determining whether a petition is timely, the basic issue is whether it was ” ’ “filed as promptly as the circumstances allow.” ’ ” (Id. at p. 460.)
In short, we conclude that Taylor‘s claim is not barred by California habeas procedural rules, and we turn to address it on the merits.
D. Substantial Evidence Does Not Support the Conclusion that Taylor Acted with Reckless Indifference to Human Life.
1. The scope of our review.
“In a habeas corpus challenge to the sufficiency of the evidence to support a special circumstance finding, the ‘standard of review . . . 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.” . . . 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.’ ” (Bennett, supra, 26 Cal.App.5th at p. 1018.)
It is nonetheless appropriate for us to consider the judicially noticed documents because our task is to independently review the record to determine if the special circumstance is supported by substantial evidence. While our review relies heavily on the factual discussion in Taylor‘s direct appeal, it also considers other germane parts of the record. (See Bennett, supra, 26 Cal.App.5th at p. 1007, fn. 2 [“provid[ing] additional factual background from [petitioner‘s] exhibits where necessary“]; see also Miller, supra, 14 Cal.App.5th at pp. 964-966 [not relying on factual summary from opinion on direct appeal].)
2. Insufficient evidence supports the special circumstance.
Applying the Clark factors, we conclude that Taylor falls closer to the Enmund end of the spectrum and that substantial evidence does not support the determination that he acted with reckless indifference to human life. (See Clark, supra, 63 Cal.4th at p. 615; Miller, supra, 14 Cal.App.5th at p. 974 & fn. 4.) As a result, we need not decide whether substantial evidence supports the determination that Taylor was a major participant in the attempted robbery. (See Clark, at p. 614; Miller, at pp. 974-975.)
Here, Taylor did not supply Davis with the murder weapon, and the evidence was inconclusive as to whether Taylor knew Davis had a gun that night. The jury could have reasonably inferred that Taylor was aware Davis had ready access to guns, but it was unclear whether Taylor actually saw Davis retrieve the weapon. While the previous opinion referred to Davis‘s testimony “that he and Taylor planned an armed robbery,” that testimony established only that Davis planned an armed robbery. Davis testified that he brought the gun intending only to scare the victim, but there was no evidence he and Taylor talked beforehand about the use of a gun. Nor did Taylor have or use his own weapon during the crime. Thus, even assuming there was substantial evidence that Taylor knew Davis was armed, there is little about Taylor‘s use or knowledge of firearms that suggests he appreciated the planned robbery posed a heightened risk of death.
In addition, and as was true of the Banks petitioner, “nothing in the record reflects that [Taylor] knew there would be a likelihood of resistance and the need to meet that resistance with lethal force.” (Banks, supra, 61 Cal.4th at p. 811.) The evidence showed that Taylor and the other men planned for Davis to quickly grab the money from a lone employee late at night after the liquor store had closed, reducing the risk of violence. (See Clark, supra, 63 Cal.4th at p. 622 [“a defendant‘s apparent efforts to minimize the risk of violence can be relevant to the reckless indifference to human life analysis“].)
Moreover, the planned duration of the snatch-and-grab robbery was short. Although Davis had to wait some time for Cary to emerge from the store, nothing about
Nor was there any evidence that Davis had killed before or that Taylor was aware of previous violent behavior on Davis‘s part. (See Clark, supra, 63 Cal.4th at p. 621; Banks, supra, 61 Cal.4th at pp. 810-811; Miller, supra, 14 Cal.App.5th at p. 976.) The two men were good friends, and Taylor was likely aware of Davis‘s involvement in various illegal activity, including drug sales, but other decisions have refused to attribute significance to prior criminal activity that did not involve deadly violence. (Banks, at p. 810-811 [defendant member of same gang as killer, but no evidence they “ever participated in shootings, murder, or attempted murder“]; Ramirez, supra, 32 Cal.App.5th at p. 405 [petitioner‘s knowledge that shooter was gang member and “had a history of delinquency” did not support inference that petitioner could expect shooter would use deadly force]; Miller, at p. 976 [insufficient that defendant and killer were in same gang and had committed other robberies together].)
Taylor‘s physical position during the crime also weighs in his favor. Although Taylor was parked on the street near where the killing occurred, he never got out of the car and had no opportunity to prevent the shooting. Indeed, it appears that Taylor could not even see Davis‘s interaction with Cary. Rather, Taylor‘s primary role was to be the getaway driver, and he had no direct involvement in the shooting. In this respect, his actions were more akin to those of offenders in cases overturning special circumstances. (See, e.g., Clark, supra, 63 Cal.4th at pp. 620-621 [defendant who was in store parking lot did not direct shooter to use lethal force or have chance to intervene]; Ramirez, supra, 32 Cal.App.5th at pp. 404-405 [petitioner may have been able to see and hear what was happening, but was not “close enough to exercise a restraining effect on the crime or his colleagues“]; compare, e.g., Tison, supra, 481 U.S. at pp. 140, 158 [petitioners “actively involved in every element of the kidnaping-robbery and physically present during the entire sequence of criminal activity,” including when killer voiced intention to kill]; In re Loza (2017) 10 Cal.App.5th 38, 51, 53 [petitioner who was also in store where killing occurred had “time to observe and react before the murder” because he heard killer threaten to shoot store clerk and count to five before doing so].)
The evidence most unfavorable to Taylor was of his actions after the shooting. In rejecting Taylor‘s previous challenges to the special circumstance, both this division and the superior court relied heavily on these actions to conclude that, under the law as it was then understood, there was substantial evidence of the required mens rea. But as we explain, given the lack of evidence that Taylor planned anything more dangerous than “a garden-variety armed robbery” (Banks, supra, 61 Cal.4th at p. 802), his behavior after the fact revealing an indifference to Cary‘s death, while reprehensible, does not show he acted with reckless disregard to the risk to human life posed by the planned robbery.
First, both the superior court and this division emphasized that Taylor made no attempt to help Cary after he knew she was shot, instead helping Davis to flee the scene. But there is no evidence that Taylor appreciated how badly Cary was wounded. (See Bennett, supra, 26 Cal.App.5th at p. 1026 [petitioner‘s flight “[did] not support an inference [he] necessarily understood a killing had occurred“].) And it appears Taylor knew help was arriving: He told Davis not to get in the car when he saw another vehicle, and he did not drive away with Davis until after that vehicle headed toward Cary‘s location. In fact, help reached her almost immediately, and there was no evidence that she might have survived had Taylor acted differently. (See Clark, supra, 63 Cal.4th at p. 620.)
Second, both courts also focused on testimony by Shackelfoot that when he asked Taylor the following day what they should do, Taylor said, “Fuck that old bitch,” and advised Shackelfoot not to tell anyone what had happened. This division‘s prior opinion
We agree that the remark was abhorrent, but 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. (Banks, supra, 61 Cal.4th at pp. 808-809Banks and Clark it is insufficient, standing alone, to constitute substantial evidence that he acted with reckless indifference to human life in participating in the attempted robbery.
The Attorney General offers little independent argument resisting this conclusion. Instead, he primarily rests on the reasoning of the prior appellate opinion and the superior court‘s order. As we have said, both decisions focused on Taylor‘s actions after the murder in concluding that he acted with reckless indifference to human life, but those actions are insufficient in and of themselves to establish the required mens rea. The previous opinion also determined it was reasonable to infer that Taylor “recruited Davis, a man he knew to have a fondness for weapons, . . . in part because he expected that violence might be necessary.” But the direct appeal was decided before Banks and Clark, which make clear that the planning of an armed robbery, which always carries some risk of violence, is not enough.
In its order, the superior court relied heavily on People v. Gonzalez (2016) 246 Cal.App.4th 1358, affd. on other grounds (2018) 5 Cal.5th 186, an opinion it characterized as “illustrat[ing] why there was sufficient evidence that [Taylor] acted with reckless indifference to human life.” But in analogizing Gonzalez to this case, the superior court discussed only Taylor‘s actions after the shooting. True enough, the
E. The Issue Whether Taylor Is Entitled to Have His Murder Conviction Vacated as a Result of Our Holding Is Better Resolved Below.
Taylor argues that if we vacate the special circumstance we must also vacate the felony-murder conviction under Senate Bill No. 1437. Although we recognize that the new legislation may entitle him to such relief, we conclude that he must seek it in the trial court in the first instance.
As noted above, Senate Bill No. 1437 amended
Senate Bill No. 1437 applies to defendants, like Taylor, whose convictions are final. It added
Upon receiving a petition that is supported by the petitioner‘s declaration that all three conditions are met and that makes a “prima facie showing that the petitioner falls within the provisions of [section 1170.95],” the sentencing court must issue an order to show cause. (
Two recent Court of Appeal decisions have held that defendants cannot seek relief under Senate Bill No. 1437 in direct appeals but instead must file petitions under
III. DISPOSITION
The petition for a writ of habeas corpus is granted. The true finding on the robbery-murder special circumstance is vacated, and the matter is remanded with directions to resentence Taylor accordingly.
Humes, P.J.
WE CONCUR:
Margulies, J.
Sanchez, J.
In re Taylor A155328
Philip M. Brooks, under appointment by the Court of Appeal
Counsel for Respondent:
Xavier Becerra, Attorney General
Gerald A. Engler, Chief Assistant Attorney General
Jeffrey M. Laurence, Senior Assistant Attorney General
Laurence K. Sullivan, Supervising Deputy Attorney General
René A. Chacón, Deputy Attorney General
In re Taylor A155328