*963In August 2002, a jury convicted petitioner Tyrone A. Miller (defendant) of the first degree felony murder of Rene Franco (Franco) ( *964Pen. Code, § 187, subd. (a) )
I. BACKGROUND
On May 26, 2000, defendant, Derrick Patton (Patton), and Melvin Tate (Tate)-who was 17 years old at the time-met at Tate's house where they discussed defendant's plan to commit a "follow-home robbery." Defendant, Patton, and Tate were all members of the 4-Deuce Crips street gang and had committed follow-home robberies with one another, and with others, in the past.
The robberies were typically conducted as follows: A "spotter" would go into a bank, locate a person withdrawing a large amount of cash, and identify that person for the others involved in committing the robbery. The "driver" would tail the victim to his or her destination, and the "getter" would take the money. According to Tate, who testified as a witness for the prosecution at trial, they did not always carry a gun during follow-home robberies; it depended on the age, size, and sex of the victim, as well as whether the victim was alone.
Tate estimated he had participated in six prior robberies with Patton and seven or eight with defendant. Tate recalled, in particular, two prior follow-home robberies he committed with defendant. In one, defendant served as the spotter and Tate carried a fake gun. In the other, the victim was a woman and defendant's role was not specified. As for robberies he committed with Patton, Tate recalled only one instance involving a gun. Patton was carrying *965the gun in his pocket during the robbery. When the victim grabbed onto him during a scuffle, the gun went off, shooting Patton in the arm.
On the date of Franco's murder, defendant was the spotter, Patton the driver, and Tate the getter. Defendant entered a bank with his young daughter while Patton and Tate remained in Patton's car across the street. Saravia and Franco were inside the bank at the time, and Saravia withdrew $7,500 she planned to use to buy a car. Defendant exited the bank after Saravia and Franco and instructed Patton and Tate to "follow the blue van." He told them Saravia had "a lot of money" in her purse.
Saravia and Franco drove to an automobile dealership and parked about half a block from its entrance. Patton parked his car in the dealership's driveway. He retrieved a gun from the driver's side door panel and tossed it to Tate, saying, "[m]ake sure you get the purse."
Saravia was "short" and "kind of heavyset." Franco was a "big guy" but "older" and "walked like he had a limp." As Franco and Saravia walked past Tate, he grabbed Saravia's purse. Saravia fell to the ground, and Tate told her not to get up. When Franco moved towards Tate, Tate shot him in the chest. Franco, despite being shot, managed to get back in his van, but he was unable to drive on account of his wound. He died before he could be treated at a hospital.
Tate jumped back into Patton's car, and they went to defendant's house to divide the money. Tate received $500 of the $7,500.
Police connected Tate to the scene of Franco's murder with DNA evidence found during their investigation. Tate pled guilty to one count of first degree murder and *694agreed to testify against defendant and Patton in the expectation he would receive a prison sentence of 25 years to life (with the possibility of parole) and the prosecution would drop several robbery charges against him. When the police arrested Patton, they found a gun in his car that resembled the gun Tate said he used to kill Franco.
Defendant and Patton were jointly tried in August 2002. The jury convicted both men of the first degree murder of Franco on an aiding and abetting theory, as well as the second degree robbery of Saravia. The jury found true the section 190.2 robbery-murder special circumstance alleged by the prosecution, as well as a section 12022.53, subdivision (d) sentence enhancement alleging a principal personally and intentionally discharged a firearm, causing death. The trial court sentenced defendant to a prison term of life without the possibility of parole based on the robbery-murder special circumstance, plus 25 years to life (with the possibility of parole) pursuant to the section *96612022.53, subdivision (d) enhancement. The court stayed sentences imposed on the robbery conviction and other enhancements the jury found true.
Defendant appealed his conviction and argued, among other things, the evidence was insufficient to support the robbery-murder special circumstance finding. We affirmed the judgment in an unpublished opinion. (People v. Patton (Oct. 20, 2003, B163619) [nonpub. opn.].)
Much later, in September 2016, defendant filed a petition for a writ of habeas corpus in the superior court, contending our Supreme Court's recent decision in Banks , supra ,
II. DISCUSSION
Defendant contends our Supreme Court's recent decisions in Banks , supra ,
We conclude the Banks and Clark decisions govern the disposition of defendant's habeas petition and, further, that the standards articulated in those decisions entitle him to the relief he seeks. After reviewing the record of defendant's conduct against the requirements for section 190.2, subdivision (d) discussed in Banks and Clark , we are convinced the evidence against defendant would not permit a jury to rationally *695conclude he exhibited a reckless indifference to human life. Among other relevant considerations, defendant was not present at the scene of the crime and there was no *967evidence he knew lethal force was appreciably more likely than that inherent in a "garden-variety armed robbery, where death might be possible but not probable...." ( Banks , supra , 61 Cal.4th at p. 802,
A. The Robbery-Murder Special Circumstance, and the Banks and Clark Decisions
In 1990, state voters passed Proposition 115, which "revised the scope of capital liability for aiding and abetting felony murders by looking to federal constitutional law." ( Banks , supra , 61 Cal.4th at p. 798,
1. Banks
In the 2015 Banks case, our Supreme Court discussed "under what circumstances an accomplice who lacks the intent to kill may qualify as a major participant so as to be statutorily eligible for the death penalty" or life imprisonment without parole.
Before the Supreme Court was the appeal of Lovie Troy Matthews (Matthews), who served as the getaway driver for an armed robbery in which a security guard was killed. ( Banks , supra , 61 Cal.4th at p. 794,
*968Matthews, Daniels, and Gardiner were all members of the same criminal street gang. ( Banks , supra , 61 Cal.4th at p. 796,
To determine whether Matthews's sentence was permitted under section 190.2, subdivision (d), our state's high court looked to two United States Supreme Court decisions: Tison v. Arizona (1987)
In Enmund , the defendant was the getaway driver in an armed robbery in which his associates killed two people. There was some evidence Enmund planned the robbery ( Enmund , supra , 458 U.S. at p. 803,
*969In Tison , on the other hand, the United States Supreme Court concluded the defendants, Ricky (Ricky) and Raymond (Raymond) Tison, could be sentenced to death even though they did not actually commit the murders in question and did not specifically intend the victims to die. Ricky and Raymond, along with another brother and other relatives, planned to break their father, Gary Tison (Gary), and his cellmate out of prison. ( Tison , supra , 481 U.S. at p. 139,
The escape vehicle got a flat tire during the course of their flight from the prison, and they decided to steal a car. ( *697Tison , supra , 481 U.S. at pp. 139-140,
Once out in the desert, the Lyons family father pleaded with the group not to kill them. ( Tison , supra , 481 U.S. at p. 140,
The police apprehended the Tisons and Gary's cellmate several days later. ( Tison , supra , 481 U.S. at p. 141,
In considering Raymond and Ricky's challenges to their capital sentences, the high court relied on and distinguished its prior decision in Enmund . The court reaffirmed the principle announced in Enmund that imposing the death sentence on an aider and abettor who had no intent or purpose that life would be taken would violate the Eighth and Fourteenth Amendments. ( Tison ,
As it had done in Enmund , the Tison court conducted an individualized assessment of Raymond and Ricky's culpability. In doing so, the court found Raymond and Ricky's participation in the deaths of the Lyons family to be "anything but minor." ( Tison , supra , 481 U.S. at p. 152,
The brothers' conduct showed their participation in the crime was "major" and their mental state was "one of reckless indifference to human life." ( Tison , supra , 481 U.S. at p. 158,
In considering the import of Enmund and Tison , our Supreme Court in Banks observed that capital-eligible felony-murder cases require an individualized assessment of "the defendant's personal role in the crimes leading to the victim's death and ... the defendant's individual responsibility for the loss of life, not just his or her vicarious responsibility for the underlying crime." ( Banks , supra , 61 Cal.4th at p. 801,
To help guide the analysis of whether a defendant can be found to have been a major participant in a felony murder, the Banks court listed the following questions designed to "distinguish the Tisons from Enmund," noting no individual factor was necessary nor was any one of them necessarily sufficient: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did defendant do after lethal force was used?" ( Banks , supra , 61 Cal.4th at p. 803,
Applying the foregoing factors to Matthews's case, the Banks court concluded he was not a major participant. There was no evidence Matthews planned the robbery, obtained the guns used in its commission, knew his confederates had killed before, or was present at the scene of the robbery and killing. ( Banks , supra , 61 Cal.4th at p. 805,
Our Supreme Court further held Matthews did not exhibit a reckless indifference to human life. ( Banks , supra , 61 Cal.4th at p. 807,
Our high court built upon its discussion in Banks , with greater emphasis on the requirements of reckless indifference, when it decided Clark , supra ,
Nokkuwa Ervin (Ervin) shot the mother of a store employee during an attempted robbery of a CompUSA store. ( Clark , supra , 63 Cal.4th at p. 535,
The Clark court found there was substantial evidence Clark "was the mastermind who planned and organized the attempted robbery and who was orchestrating the events at the scene of the crime." ( Clark , supra , 63 Cal.4th at p. 612,
Our Supreme Court declined to decide whether Clark was a "major participant"
*700for purposes of section 190.2, subdivision (d). ( Clark , supra , 63 Cal.4th at p. 614,
*973and where he had instructed his subordinates " 'that a resisting victim was to be shot.' " ( Ibid . ) Thus, Clark's absence from the scene of the killing did not necessarily preclude the applicability of section 190.2, subdivision (d).
Even though Clark might qualify as a major participant, the court concluded the jury's robbery-murder and burglary-murder findings were not backed by sufficient evidence that Clark exhibited a reckless indifference to human life. Tison had "held that the necessary mens rea for death eligibility may be 'implicit in knowingly engaging in criminal activities known to carry a grave risk of death.' [Citation.]" ( Clark , supra , 63 Cal.4th at p. 616,
The Clark court recognized there was a " 'significant[ ] overlap' " in the requirements for the major participant and reckless indifference elements to section 190.2, subdivision (d). ( Clark , supra , 63 Cal.4th at pp. 614-615,
Applying these factors in Clark's case, the court concluded there was insufficient evidence Clark was recklessly indifferent to human life. The crime involved only one gun, holding just one bullet, and it was carried by Ervin, not Clark. ( Clark , supra , 63 Cal.4th at p. 619,
*9743. The sufficiency of the evidence to support the jury's special circumstance finding in this case
We now apply the principles set forth in Banks , Clark , Enmund , and Tison *701to defendant's claim on habeas. "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,
Considering the "totality of the circumstances" derived from the evidence presented in defendant's trial ( Banks , supra , 61 Cal.4th at p. 802,
Like Clark , there is evidence defendant was the "mastermind" behind the robbery that resulted in Franco's death. Tate testified the robbery was defendant's plan, and the jury could certainly conclude defendant received a larger share of the robbery proceeds than Tate. At the same time, defendant is similar to Clark and Enmund (and Matthews) in mitigating respects: He was not present at the scene of the killing and therefore had no opportunity to thwart it or assist the victim. The gun used in the crime was supplied by Patton, not defendant, and there was no evidence defendant believed Tate or Patton had killed in the past (unlike the Tison brothers' knowledge of Gary Tison and his cellmate's history).
But again like Clark , we need not determine whether defendant's planning activity sufficed to make him a major participant under section 190.2, *975subdivision (d) because we are convinced the evidence was insufficient to show defendant acted with a reckless indifference to human life.
As instructed by Clark , we consider defendant's knowledge of weapons used in the crime, and their actual use and number; defendant's proximity to the crime and opportunity to stop the killing or aid Franco; the duration of the crime; defendant's knowledge of Tate's propensity to kill; and defendant's efforts to minimize the possibility of violence during the crime.
Here, there was no evidence defendant knew a gun would be used in the robbery. The gun Tate used apparently belonged to Patton, and Tate said he would not have used it had Saravia exited the van alone. In the previous robberies Tate testified to committing with defendant, a fake gun had been used in one and there was no evidence a gun had been used in the other. Defendant was aware that Patton had carried *702a gun and accidentally shot himself in one of the numerous follow-home robberies committed in the past, but that says nothing about defendant's knowledge Tate would be given (and use) a gun in the robbery of Saravia. Thus, evidence of defendant's awareness a gun would be used was less than that established in Clark , where the defendant knew an operable firearm would be used, even though it was supposed to be unloaded.
Defendant was also absent from the scene of the killing, and therefore had no opportunity to stop it or to help Franco. This is another respect in which the evidence of reckless indifference here was weaker than in Clark (where the defendant was found ineligible for a special circumstance finding)-Clark appeared at the scene soon after the killing and was conceivably in a position to aid the victim.
The duration of the crime also counsels against finding defendant exhibited reckless indifference to human life. Tate's killing of Franco appeared to be somewhat impulsive, much like the shootings in Banks and Clark ; all three shootings occurred when the shooter was unexpectedly confronted. In Banks , the security guard was shot when he was pushing on the front door of the establishment from the outside in an attempt to keep the robbers inside. ( Banks , supra , 61 Cal.4th at p. 795,
Even though defendant and Tate belonged to the same gang and had committed follow-home robberies together in the past, "[n]o evidence indicated [defendant and Tate] had ever participated in shootings, murder, or attempted murder...."
*703The evidence that Tate regularly used PCP, including on the day he killed Franco, also cannot support a reasonable inference defendant knew Tate was likely to kill. For one thing, and as we have already discussed, there was no evidence defendant even knew Tate would be armed during the Saravia robbery. In addition, there was no expert testimony at trial about the effects of PCP; Tate himself testified the drug made him "a little slow" or "relaxed," which would not support an inference he was more prone to kill.
Considering all the evidence against defendant, "there appears to be nothing in the plan that one can point to that elevated the risk to human life beyond those risks inherent in any armed robbery." ( Clark , supra , 63 Cal.4th at p. 623,
B. The Attorney General's Procedural Arguments
Although we conclude the evidence cannot support a special circumstance finding, we must separately assess whether the Attorney General's procedural arguments bar relief. The Attorney General contends defendant's petition should be denied because his argument was previously considered and rejected on direct appeal and because claims of insufficient evidence are not cognizable in a habeas corpus petition. The Attorney General further contends Banks and Clark do not apply, as his brief puts it, "retroactively." Each of these arguments is unconvincing, for reasons we now explain.
We begin with an overarching, dispositive point: Federal due process guarantees require reversal of the special circumstance finding in this case regardless of the Attorney General's California-law-based procedural arguments. That much is clear from the United States Supreme Court's decision in Fiore v. White (2001)
The high court's answer, unanimously, was "no." The court held "the Due Process Clause of the Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt." ( Fiore , supra , 531 U.S. at pp. 228-229,
The parallels to our case are exact, and the result must be identical. Like the Pennsylvania Supreme Court's opinion at issue in Fiore , our Supreme *978Court's opinions in Banks and Clark merely clarified the meaning of section 190.2- Banks and Clark merely clarified the "major participant" and "reckless indifference to human life" principles that existed when defendant's conviction became final. The Federal Constitution therefore requires reversal of the special circumstance finding against defendant, and the Attorney General's procedural arguments can be no match for the United States Constitution's demands.
Felicitously, though, California law in fact stands in harmony with Federal due process principles. The decisions of the courts of this state invoked by the Attorney General-when correctly understood-pose no bar to relief.
What is known as the Waltreus rule
The defendant in Mutch collaterally attacked the validity of his aggravated kidnapping convictions based on a case decided only after the convictions had become final, People v. Daniels (1969)
Banks and Clark are the equivalent of Daniels in Mutch . For purposes of legal analysis, Banks and Clark did not create new law; they simply state what section 190.2, subdivision (d) has always meant. And that means defendant's life without parole sentence was not authorized by section 190.2 and the Waltreus rule does not bar defendant's habeas corpus claim.
Nor is defendant's claim prohibited by the rule set forth in Lindley
Defendant's claim that the evidence presented against him failed to support the robbery-murder special circumstance (and therefore a sentence of life *980without the *706possibility of parole) is not a "routine" claim of insufficient evidence as described in Lindley . His claim does not require resolution of disputed facts; the facts are a given, they are just legally insufficient under section 190.2 as elucidated in Banks and Clark . Defendant's assertion of error, therefore, falls outside the limitation on insufficient evidence claims described in Lindley . (See In re Harris (1993)
DISPOSITION
The petition for habeas corpus is granted. The true finding on the robbery-murder special circumstance allegation under section 190.2, subdivision (a)(17)(A) is vacated. The matter is remanded with directions to resentence defendant consistent with the views expressed in this opinion.
We concur:
KRIEGLER, Acting P.J.
LANDIN, J.
Undesignated statutory references that follow are to the Penal Code.
The Banks court noted that its analysis of section 190.2, subdivision (d) applied equally to sentences of life imprisonment without parole. (Banks, supra, 61 Cal.4th at p. 804,
There was evidence the niece was still alive for a time after the shooting. (Tison,
When the Banks court considered the "spectrum of culpability" described in Enmund and Tison, it maintained those cases did not represent a ceiling or floor for determining when an aider and abettor felony-murder defendant was eligible for capital punishment or life imprisonment without parole. (Banks, supra, 61 Cal.4th at p. 811,
A witness who personally knew Patton, Tate, and defendant told police in an interview during the investigation that she knew Tate "to be a killer" and knew "of him shooting up places." At trial, the witness said she did not recall making those statements and they were untrue in any event. She maintained she did not know Tate killed or was likely to kill anyone, and explained she may have told the police otherwise based on "rumors," because Tate "st[ood] his own ground," and because of "the way he carr[ied] guns and he was so young." Tate testified he had never shot a .38 caliber revolver before he shot Franco.
The expert testified the gang resorted to violence to protect their territory from "rival gangs" and "rival narcotics dealers." The victim in this case and in other follow-home robberies were obviously not rival gang members.
In re Waltreus (1965)
Our Supreme Court reiterated the same principle more recently in Woosley v. State of California (1992)
In re Lindley (1947)
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.