The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
LOUIS SANCHEZ EMANUEL,
Defendant and Appellant.
S280551
Sixth Appellate District
H049147
Santa Clara County Superior Court
C1246799
June 2, 2025
Justice Evans authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Groban, and Jenkins concurred.
PEOPLE v. EMANUEL
S280551
Opinion of the Court by Evans, J.
Defendant Louis Sanchez Emanuel was convicted of first
degree murder following a fatal shooting committed by his
codefendant, Jacob Craig Whitley. The conviction was obtained
under the felony-murder rule, as the killing occurred during the
commission of a robbery perpetrated by Whitley and Emanuel.
Under the felony-murder doctrine applicable at the time of his
trial and conviction, Emanuel could be found guilty of the crime
of murder if a jury found that he committed an inherently
dangerous felony, such as robbery, and an accomplice killed
someone during the commission of that crime. The only mens
rea finding required to support a conviction was the intent to
commit the underlying felony.
Subsequently, the Legislature significantly narrowed the
scope of the felony-murder rule in Senate Bill No. 1437 (2017–
2018 Reg. Sess.) (Senate Bill No. 1437) (Stats. 2018, ch. 1015,
§ 3). A felony-murder conviction may no longer rest on the mere
commission of and intent to commit an underlying felony. If a
defendant was not the actual killer or an aider and abettor
acting with intent to kill, the statute now requires that the
defendant be a major participant in the felony who acted with
reckless indifference to human life. (Penal Code § 189, subd.
(e)(3).)1 With the enactment of Senate Bill No. 1437, the
1
All unspecified statutory references are to the Penal Code.
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Legislature also created a vehicle for defendants previously
convicted of murder under the broader and now invalidated
felony-murder rule to petition for resentencing. (Former
§ 1170.95, added by Stats. 2018, ch. 1015, § 4, subsequently
renumbered as § 1172.6 by Stats. 2022, ch. 58, § 10.)
Emanuel filed a petition for resentencing, arguing he was
no longer liable for murder under the more circumscribed felony-
murder rule. The trial court denied his petition, finding that
Emanuel was a major participant in the robbery who acted with
reckless indifference to human life. The Court of Appeal
affirmed. (People v. Emanuel (May 12, 2023, H049147) [nonpub.
opn.] (Emanuel).) Because we find the evidence insufficient to
support a finding that Emanuel acted with reckless indifference
to human life, we reverse the judgment of the Court of Appeal
with instructions to remand the case to the trial court for further
proceedings on Emanuel’s resentencing petition.
I. BACKGROUND
A. Statement of Facts
Approximately two weeks before the robbery, Whitley and
Emanuel encountered Mansour Amini on his community college
campus. The men had never met before. Whitley identified
himself as Louis and Emanuel identified himself only as
Whitley’s cousin. Whitley and Emanuel stated, untruthfully,
that they were from Las Vegas. They told Amini they were
looking to buy a pound of marijuana. Amini said he could
supply the same but would need a couple weeks. Amini and
Emanuel exchanged phone numbers.
Over the next few days, Whitley and Emanuel contacted
Amini multiple times to inquire about the pound of marijuana.
Amini reached out to his friend, John Cody Sonenberg, who had
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sold him marijuana on prior occasions. Sonenberg said he could
supply a pound of marijuana and offered Amini a $200
commission for brokering the deal.
At some point during this period, Amini and Sonenberg
met Whitley and Emanuel in a parking lot outside a Panda
Express to show them a sample of marijuana. Whitley and
Emanuel stated that they planned to ship the marijuana to their
uncle in Las Vegas. They offered to pay $2,200 for the pound.
Amini understood that a pound typically sold for about $1,800
and was “confused” why Whitley and Emanuel offered a higher
price without attempting to negotiate.
Two or three days later, Amini and Sonenberg again met
Whitley and Emanuel outside the Panda Express. Sonenberg
did not have the marijuana, so he drove the group to his
supplier’s house. Sonenberg did not have money to purchase
directly from his supplier; instead, he asked Whitley and
Emanuel to give him the money up front so he could go inside
and make the purchase. Whitley and Emanuel professed not to
have the money with them. They asked to meet Sonenberg’s
supplier. Sonenberg exited and returned about five to ten
minutes later, saying his supplier refused to meet them.
Whitley and Emanuel suggested postponing the sale, with the
understanding that Sonenberg would come to the next meeting
with the marijuana and they would come with the money. The
group agreed to meet the following day, December 11, 2012, at
Cherry Park in San Jose.
On December 11, Sonenberg and Amini argued by text and
phone for much of the morning. Sonenberg eventually collected
Amini in his truck and the pair drove to Cherry Park. They
arrived around 2:30 p.m. While sitting in the truck, Sonenberg
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showed Amini a shoebox containing the marijuana. Amini
called Whitley and Emanuel, who said they were nearby and on
their way. While waiting for them to arrive, Sonenberg and
Amini again began to argue. According to Amini, he and
Sonenberg planned to work out and smoke a blunt he was rolling
from his personal stash of marijuana, but disagreed about
whether they should smoke before or after they arrived at the
gym. Sonenberg opened the passenger door to his truck and
threw out Amini’s gym bag, spilling the marijuana he was
rolling. Both men got out of the truck, and Sonenberg “got in
[Amini’s] face.” Sonenberg then got back in his truck and drove
away, leaving Amini. Amini called and texted Sonenberg but
received no reply. He also called and texted Whitley and
Emanuel but received no reply.
Sonenberg texted Emanuel at 3:06 p.m., stating: “I be at
the park right now with it. We can do this without this fool
[Amini]. I’ll get you for 21 instead of 22.” Based on witness
testimony, the shooting occurred at approximately 3:15 p.m. on
a residential street abutting Cherry Park. Witnesses reported
hearing a gunshot immediately followed by screeching tires.
One witness walking her dog in the park noticed a white truck
moving very fast “perpendicular to the street.” A man fell from
the truck and rolled into the gutter. She called 911. Another
witness who lived on the street where the incident occurred
heard screeching tires followed by a loud bang. She exited her
home and saw a truck on the sidewalk with its tailgate against
a tree and a man lying face down on the ground. She returned
inside to retrieve her cell phone and called 911. While on the
phone, she approached Sonenberg and told him help was on the
way. Sonenberg moaned but did not respond with words.
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The police dispatch went out at 3:20 p.m. Sirens could be
heard shortly thereafter. First responders were less than a mile
away at the time of the dispatch and arrived on the scene within
“only a couple minutes.” Police and fire personnel found
Sonenberg’s truck with its engine still running and the driver
side door locked. They were able to gain entry to the truck
through the passenger door. Officers found blood in the vehicle
as well as on the right front tire and bumper. They found only
an unusable amount of marijuana inside the truck.
An accident reconstruction expert opined that Sonenberg’s
truck suddenly and violently lurched backward with enough
force to throw his body out the passenger door. After falling,
Sonenberg’s body was caught underneath the truck and dragged
until it came to rest against the curb. A forensic pathologist
testified that Sonenberg died at the scene from a “close-range”
gunshot wound to the right side of his neck that perforated his
carotid artery. Sonenberg would have lost consciousness within
minutes of this injury. Based on gunpowder stippling on
Sonenberg’s face, the barrel of the gun was within three feet
when it was fired. Sonenberg also had an abrasion on his
forehead consistent with blunt force trauma.
Breanna Santos is Emanuel’s former girlfriend and the
mother of his minor son. Emanuel often cared for his son while
Santos was at work. Santos testified at the trial in May 2015
that she recalled being interviewed by the police about the
events surrounding Sonenberg’s murder on at least two
occasions in December 2012. However, she claimed not to recall
what she said to the police during those interviews or the events
of the day of the shooting. Following a hearing outside the
presence of the jury, the trial court found her inability to recall
disingenuous. The court permitted a police officer who had
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interviewed Santos, San Jose Police Sergeant Stewart Davies,
to testify about Santos’s prior statements.
Sergeant Davies testified that he interviewed Santos on
December 12 and again on December 14, 2012. On December
12, Santos contacted the police and then appeared at the station
for an interview. Santos explained that she wanted to talk to
the police because Emanuel had a cell phone registered in her
name, which Whitley had borrowed. Whitley had used the
phone to “set something up” and “there would be text messages
on [it] that would cause the police to come looking for her.”
Santos told Sergeant Davies that she dropped off her son at
Emanuel’s house on December 11. When she returned later that
afternoon to pick him up, Whitley was there. Whitley told her
he had “shot a white boy” at Cherry Park, repeating “ ‘I shot
him’ ” three times. Emanuel confirmed that Whitley was telling
the truth.
The police asked Santos to return for a second interview
on December 14. Based on their investigation, officers believed
Santos had lied during her first interview. After the police
confronted Santos with cell phone records, she admitted that
Emanuel had been using his phone to communicate with her on
December 11 and gave the account that follows.
Santos stated that she received a phone call from Emanuel
at 3:20 p.m., which she did not answer, and another at 3:29 p.m.,
wherein Emanuel asked her to come pick up their son. Santos
left work at around 4:30 p.m. and arrived at Emanuel’s house
around 5:00 or 5:30 p.m. When Santos arrived at the house, she
noticed Emanuel had cut his hair, removing the dreads he wore
earlier in the day.
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Emanuel told Santos that he and Whitley had gone to get
“ ‘some weed.’ ” According to Santos, Emanuel said:
“ ‘[Sonenberg] wasn’t trying to give it up.’ So I left. And when I
was walking away, [Whitley] hit him’ ” but Sonenberg “ ‘didn’t,
I guess, get knocked out.’ ” Whitley said he aimed the gun at
Sonenberg’s leg, but Sonenberg pushed it up. Whitley fired, and
Sonenberg fell to the ground. When Santos asked why Whitley
shot Sonenberg, Whitley replied, “ ‘I don’t know. I don’t know.
I shot him.’ ” Whitley told Emanuel he got rid of the gun and
the clothes he had been wearing.
Santos began to panic when Emanuel said the phone
would lead back to her. She asked what they had gotten her
into, at which point Emanuel “started crying and saying that,
‘I didn’t do nothing though. I didn’t do nothing. And [Whitley]
was the one who shot him.’ ” Whitley and Emanuel said they
got rid of the phone. They urged Santos to report the phone lost,
but she refused. Later, Emanuel told Santos to tell the police
that Whitley had borrowed the phone.
After Santos gave this account once, Sergeant Davies
asked her to repeat it, taking care to specify who told her what.
Santos repeated that Emanuel said Whitley “set something up”
to meet a guy at Cherry Park to “get some weed.” Santos told
Sergeant Davies: “And he goes, the dude . . . wasn’t trying to
give it up. So I just told [Whitley], let’s go, but he wouldn’t come
on. He . . . wouldn’t like, you know, let go, so [Whitley] hit him
with the gun. And [Whitley] said he hit him on the head with
the gun. He didn’t get knocked out. The guy started fighting
back and [Whitley] pointed the gun. And [Whitley] said he
pointing [sic] the gun down, he was trying to aim down, but the
guy hit his hand, it went up and [Whitley] pulled the trigger and
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he said he shot him in his neck.”2 Emanuel told Santos that,
after the shooting, he asked Whitley, “ ‘What the fuck you
doing?’ ” Emanuel “started panicking” and went home.
Destinee Kindle testified at the trial. According to her,
she and Whitley had an “on-again/off-again” romantic
relationship in December 2012. She testified that on the evening
of December 11, Whitley called and asked her to pick him up at
Emanuel’s house. Whitley showed Kindle a news story about
the shooting and said he and Emanuel were involved. Whitley
told Kindle that he was “trying to rob the boy of some weed” and
accidentally shot him in the neck while aiming for his foot.
B. Procedural History
The Santa Clara County District Attorney charged
Emanuel with one count of first degree murder. (§ 187.) At the
time of Emanuel’s trial and conviction, felony-murder liability
could be imposed if a jury found the defendant committed or
attempted to commit an inherently dangerous felony, such as
robbery, and an accomplice killed someone during the
commission of the felony. (People v. Gonzalez (2012) 54 Cal.4th
643, 654.) “Felony-murder liability [did] not require an intent
to kill, or even implied malice, but merely an intent to commit
the underlying felony.” (Ibid.) In May 2015, following a joint
trial with Whitley, a jury found Emanuel guilty of first degree
felony murder. The jury found Whitley guilty of the same
2
Despite Sergeant Davies’ effort to achieve clarity, it is not
always clear in Santos’s account whether Emanuel or Whitley
was the speaker. Santos may have been attributing certain
statements to Whitley, or she may have been attributing
statements to Emanuel, who was relaying to Santos statements
Whitley had made to him earlier in the day.
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offense, with the additional finding that he personally
discharged a firearm resulting in death. The Court of Appeal
affirmed the convictions on direct appeal. (People v. Whitley
(Nov. 22, 2019, H043651) [nonpub. opn.].) Whitley is not a party
to the present action arising out of Emanuel’s petition for
resentencing.
In 2018, the Legislature overhauled the state’s murder
statutes. Citing the “bedrock principle of the law and of equity
that a person should be punished for his or her actions according
to his or her own level of individual culpability” (Stats. 2018, ch.
1015, § 1(d)), the Legislature enacted Senate Bill No. 1437 “to
more equitably sentence offenders in accordance with their
involvement in homicides” (Stats. 2018, ch. 1015, § 1(b)).
Pertinent here, Senate Bill No. 1437 significantly narrowed the
scope of the felony-murder rule by adding subdivision (e) to
Penal Code section 189. Under that provision, “[a] participant
in the perpetration or attempted perpetration of a [specified
felony] in which a death occurs” can be liable for murder if the
person was “the actual killer” or, “with the intent to kill,” aided
and abetted “the actual killer in the commission of murder in
the first degree.” (§ 189, subd. (e)(1), (2); People v. Strong (2022)
13 Cal.5th 698, 708 (Strong).) A person who did not kill or act
with the intent to kill can be liable for murder under the felony-
murder doctrine only if he or she “was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.” 3 (§ 189,
subd. (e)(3); Strong, at p. 708.)
3
Section 190.2, subdivision (d) provides that “every person,
not the actual killer, who, with reckless indifference to human
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Senate Bill No. 1437 also added former section 1170.95
to the Penal Code, creating a procedural mechanism for those
previously convicted of murder under a theory amended in the
bill to petition for resentencing. (See former § 1170.95, Stats.
2018, ch. 1015, § 4; Strong, supra, 13 Cal.5th at p. 708.)4 The
process begins with the filing of a petition that declares, among
other things, that “[t]he petitioner could not presently be
convicted of murder . . . because of changes to Section 188 or
189 made effective January 1, 2019,” the effective date of
Senate Bill No. 1437. (§ 1172.6, subd. (a)(3); id., subd.
(b)(1)(A).) If the trial court determines that the petitioner has
made a prima facie case for relief, it “shall issue an order to
show cause.” (§ 1172.6, subd. (c).) At the evidentiary hearing
that follows, “the burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is guilty
of murder” under state law as amended by the bill. (§ 1172.6,
subd. (d)(3).) “If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and
life and as a major participant,” aids or abets an enumerated
felony that results in death, may be convicted of the felony-
murder special circumstance and sentenced to death or life
imprisonment without the possibility of parole.
4
Emanuel’s petition for resentencing was adjudicated
under former section 1170.95. In 2021, the Legislature
amended that section in several respects that do not affect our
consideration of the issues raised in this appeal. (Stats. 2021,
ch. 551, § 1, subd. (b); see People v. Arellano (2024) 16 Cal.5th
457, 468.) In 2022, the Legislature renumbered former section
1170.95 as section 1172.6 without substantive change. (Stats.
2022, ch. 58, § 10; see Arellano, at p. 468.) Unless stated
otherwise, citations refer to the current version of the statute
codified in section 1172.6.
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the petitioner shall be resentenced on the remaining charges.”
(Ibid.) If murder was charged generically, and the target
offense was not charged, the petitioner’s “conviction shall be
redesignated as the target offense or underlying felony for
resentencing purposes.” (Id., subd. (e).)
On December 20, 2018, following the enactment of
Senate Bill No. 1437, Emanuel filed a petition for resentencing.
On November 2, 2020, the trial court issued an order to show
cause, finding the petition established a prima facie case for
relief. The parties relied on the original trial record; neither
party presented new evidence. At the evidentiary hearing, the
trial court found there was no evidence that, prior to the
robbery, Emanuel knew Whitley was armed or likely to use
lethal force. The trial court concluded that Emanuel should
have acted to “prevent” the shooting as the robbery unfolded,
however, asking: “What did he do other than, I’m out of here.
Don’t do that.” In the trial court’s view, Emanuel “created” the
situation by participating in the robbery, and thus, had an
affirmative obligation to do more than withdraw his aid and
support from a murderous cohort. In the written decision that
followed, the trial court denied the petition on the merits,
finding proof beyond a reasonable doubt that Emanuel was a
major participant in the robbery who acted with reckless
indifference to human life. The written order likewise
emphasized that Emanuel should have done more to prevent
the shooting from happening.
Emanuel appealed, arguing the evidence was insufficient
to support a finding of reckless indifference; he did not
challenge the trial court’s major participant finding. In an
unpublished opinion, the Court of Appeal affirmed. (Emanuel,
supra, H049147.) The Court of Appeal, largely adopting the
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reasoning of the trial court, held that “as one who planned the
robbery and was one of its intended beneficiaries, Emanuel had
the ability to prevent it from happening or could have done
more to prevent Whitley from shooting [Sonenberg].” (Ibid.)
We granted Emanuel’s petition for review.
II. DISCUSSION
A. History of the Reckless Indifference Standard
We have not yet had occasion to interpret the felony-
murder rule as amended by section 189, subdivision (e)(3). As
noted above, however, the major participant and reckless
indifference standards did not originate with Senate Bill
No. 1437. Rather, the Legislature imported those standards
from section 190.2, subdivision (d), which governs the felony-
murder special circumstance. (§ 189, subd. (e)(3) [imposing
liability for felony murder if the defendant “was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2”].) This Court, on several occasions, has laid out
the history of section 190.2, subdivision (d). (See People v. Banks
(2015) 61 Cal.4th 788, 794, 798–800 (Banks); People v. Clark
(2016) 63 Cal.4th 522, 616–617 (Clark); In re Scoggins (2020) 9
Cal.5th 667, 674–675 (Scoggins); Strong, supra, 13 Cal.5th at
p. 705.) We need not repeat it here at length.
In brief, the major participant and reckless indifference
concepts trace their origin to a pair of United States Supreme
Court decisions — Enmund v. Florida (1982) 458 U.S. 782
(Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison) —
that articulate the constitutional limits of capital punishment
for accomplices to felony murder. (See Scoggins, supra, 9
Cal.5th at pp. 674–675.) In Enmund, the high court held that a
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minor participant in an armed robbery (the getaway driver),
who neither intended to kill nor had any other culpable mental
state, was ineligible for the death penalty. (Scoggins, at p. 675,
citing Enmund, at pp. 791, 801; accord, Tison, at p. 149.) A few
years later, the high court revisited the issue in Tison,
considering the case of defendants who broke two convicted
murderers out of prison, armed the escaped prisoners, captured
and then held a family of passing motorists at gunpoint while
the escapees deliberated whether to kill them, and then
abandoned the victims in the remote desert after the escapees
shot them. (Tison, at pp. 139–141.) The court held that “major
participation in the felony committed, combined with reckless
indifference to human life,” provides a sufficient degree of
culpability to be eligible for a sentence of death. (Id. at p. 158.)
Section 190.2, subdivision (d), added by voter initiative in 1990
(Prop. 115, as approved by voters, Primary Elec. (June 5, 1990),
§ 10) was designed to codify the holding of Tison and, by
extension, the related holding of Enmund. (See Banks, supra,
61 Cal.4th at p. 794.) Section 190.2, subdivision (d), by its text,
imposes an actus reus requirement, i.e., major participation in
the enumerated felony, and a mens rea requirement, i.e.,
reckless indifference to human life. (Scoggins, at p. 674, citing
Banks, at p. 798.)
Thereafter, in our own pair of cases — Banks, supra, 61
Cal.4th 788 and Clark, supra, 63 Cal.4th 522 — this Court
endeavored to elucidate the contours of the major participant
and reckless indifference standards. (See Strong, supra, 13
Cal.5th at pp. 705–707.) “Because the language derived from
United States Supreme Court felony-murder precedent, we
looked to that case law for guideposts.” (Id. at p. 705.) We
observed that Enmund and Tison “collectively place conduct on
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a spectrum” of culpability, “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, at p. 794.) We
cautioned that, though the conduct of the defendants in
Enmund and Tison mark opposite ends of the spectrum for
“nonkiller felony murders,” Enmund’s actions do not represent
“the outer limit of conduct immune from death eligibility,” any
more than the Tisons’ actions represent “the constitutional
minimum level of culpability for death eligibility.” (Id. at
p. 811.)
To guide the “fact-intensive, individualized inquiry” into
where a defendant’s conduct falls on the spectrum of culpability
(Scoggins, supra, 9 Cal.5th at p. 683, citing Enmund, supra, 458
U.S. at p. 798), in Banks we identified a list of considerations
relevant to the major participant prong. (Strong, supra, 13
Cal.5th at p. 705, citing Banks, supra, 61 Cal.4th at p. 803.)
Similarly, in Clark we identified a list of considerations relevant
to the reckless indifference prong. (Strong, at p. 706, citing
Clark, supra, 63 Cal.4th at pp. 618–623.) In amending section
189, which governs murder liability generally, Senate Bill
No. 1437 imported the actus reus and mens rea requirements
from the special circumstance statute. “It is undisputed that
when Senate Bill [No.] 1437 amended Penal Code section 189 to
incorporate major participation and reckless indifference
requirements, it codified the understanding of those
requirements elucidated in Banks and Clark.” (Strong, at
p. 710.) We are therefore guided in this case by our
pronouncements in Banks and Clark, and our application of
their requirements in Scoggins.
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As set forth by the United States Supreme Court,
“[r]eckless indifference to human life is ‘implicit in knowingly
engaging in criminal activities known to carry a grave risk of
death.’ ” (Scoggins, supra, 9 Cal.5th at p. 676, quoting Tison,
supra, 481 U.S. at p. 157.) “Examples include ‘the person who
tortures another not caring whether the victim lives or dies, or
the robber who shoots someone in the course of the robbery,
utterly indifferent to the fact that the desire to rob may have the
unintended consequence of killing the victim as well as taking
the victim’s property.’ ” (Scoggins, at p. 676, quoting Tison, at
p. 157.) Although the high court’s examples describe actual
killers, not accomplices to felony murder, we explained they
nonetheless “provide some indication of the high court’s view of
‘reckless indifference’ . . . .” (Clark, supra, 63 Cal.4th at pp. 616–
617.) Namely, reckless indifference to human life “encompasses
a willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire
that death as the outcome of his actions.” (Clark, at p. 617.)5
After extrapolating these animating principles from
Tison, we went on to explain that reckless indifference
encompasses both subjective and objective elements. (Scoggins,
supra, 9 Cal.5th at p. 677, citing Clark, supra, 63 Cal.4th at
p. 617.) “As to the subjective element, ‘[t]he defendant must be
5
As stated above, we have observed that Enmund and
Tison “collectively place conduct on a spectrum” of culpability
for non-killer felony murderers. (Banks, supra, 61 Cal.4th at
p. 794.) Liability may be imposed only “when their involvement
is substantial and they demonstrate a reckless indifference to
the grave risk of death created by their actions.” (Ibid.) As
indicated by use of the term “encompasses,” “a willingness to kill
(or to assist another in killing)” is one example of reckless
indifference. (Clark, supra, 63 Cal.4th at p. 617.)
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aware of and willingly involved in the violent manner in which
the particular offense is committed,’ and he or she must
consciously disregard ‘the significant risk of death his or her
actions create.’ ” (Scoggins, at p. 677, quoting Banks, supra, 61
Cal.4th at p. 801; see Clark, at p. 617.) “As to the objective
element, ‘ “[t]he risk [of death] 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 [or her], its
disregard involves a gross deviation from the standard of
conduct that a law-abiding person would observe in the actor’s
situation.” ’ ” (Scoggins, at p. 677, quoting Clark, at p. 617,
quoting Model Pen. Code, § 2.02, subd. (2)(c).)
“The degree of risk to human life is crucial to the analysis.”
(Scoggins, supra, 9 Cal.5th at p. 682.) As the United States
Supreme Court has acknowledged, “ ‘the possibility of bloodshed
is inherent in the commission of any violent felony,’ ” such that
one who perpetrates or attempts to perpetrate such a crime may
well anticipate “the use of lethal force as a possibility.” (Banks,
supra, 61 Cal.4th at p. 808, italics added, quoting Tison, supra,
481 U.S. at p. 151.) Were that degree of culpability sufficient,
however, it would amount to “ ‘little more than a restatement’ ”
of the former felony-murder rule that Senate Bill No. 1437
retired. (Banks, at p. 808, quoting Tison, at p. 151.)
“ ‘Awareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient’ to establish
reckless indifference to human life; ‘only knowingly creating a
“grave risk of death” ’ satisfies the statutory requirement.”
(Scoggins, at p. 677, quoting Banks, at p. 808.) This Court has
thus made clear that participation in a “ ‘garden-variety armed
robbery,’ ” i.e., one in which the only factor supporting a reckless
indifference finding is that a participant was armed with a gun,
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is insufficient without more to establish reckless indifference.
(Strong, supra, 13 Cal.5th at p. 719, quoting Banks, supra, 61
Cal.4th at p. 802; see also Scoggins, 9 Cal.5th at p. 682
[observing that, although any person who plans or participates
in an armed robbery can be said to anticipate that lethal force
might be used, only about 1 in 200 armed robberies result in
death]; Clark, supra, 63 Cal.4th at p. 617, fn. 74.)
To aid in distinguishing those who knowingly engage in
criminal activities known to carry a grave risk of death from
other felony perpetrators, Clark “set out a nonexhaustive list of
considerations relevant to this determination, including use of
or awareness of the presence of a weapon or weapons, physical
presence at the scene and opportunity to restrain confederates
or aid victims, the duration of the crime, knowledge of any
threat the confederates might represent, and efforts taken to
minimize risks.” (Strong, supra, 13 Cal.5th at p. 706, citing
Clark, supra, 63 Cal.4th at pp. 618–623.) “ ‘[N]o one of these
considerations is necessary, nor is any one of them necessarily
sufficient.’ ” (Clark, at p. 618, quoting Banks, supra, 61 Cal.4th
at p. 803.) The “totality of the circumstances” must be analyzed
to determine whether the defendant acted with reckless
indifference. (Scoggins, supra, 9 Cal.5th at p. 677.)6
6
In his briefing before this Court, Emanuel raises the issue
of his youth at the time of the offense. Emanuel was 21 years of
age at the time of the robbery, while Whitley was 20 years of
age, Amini was 23 years of age, and Sonenberg was 18 years of
age. Courts of appeal have recognized that “a defendant’s youth
is a relevant factor in determining whether the defendant acted
with reckless indifference to human life.” (In re Moore (2021) 68
Cal.App.5th 434, 454 (Moore); People v. Ramirez (2021) 71
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B. Application to the Facts of This Case
We turn, then, to the application of these principles to the
facts of this case, reviewing the denial of Emanuel’s section
1172.6 petition, following an evidentiary hearing, for
substantial evidence. (People v. Reyes (2023) 14 Cal.5th 981,
988.) Under this standard, “we review the record ‘ “ ‘in the light
most favorable to the judgment below to determine whether it
discloses substantial evidence — that is, evidence which is
reasonable, credible, and of solid value — such that a reasonable
trier of fact’ ” ’ ” could find beyond a reasonable doubt that
Emanuel acted with reckless indifference. (Ibid.)
1. Use of or Awareness of the Presence of Weapons
and Knowledge of Cohort’s Likelihood of Killing
Emanuel did not use a gun or other weapon during the
robbery. The only gun was used by Whitley. The trial court
expressly found “there was no evidence in the record
demonstrating that, prior to the robbery, Emanuel knew
Whitley possessed a gun, would bring that gun to the robbery,
or ‘was likely to use lethal force.’ ” (Emanuel, supra, H049147.)
The Court of Appeal concluded the same. (Ibid.)7 The Clark
Cal.App.5th 970, 990–991; see also Miller v. Alabama (2012) 567
U.S. 460, 477 [identifying, among the “hallmark features” of
youth, the “failure to appreciate risks and consequences”].) As
Emanuel acknowledges, however, he did not raise the issue of
his youth in the proceedings below, and the lower courts did not
address the issue in rendering their decisions. We therefore
decline Emanuel’s invitation to discuss the significance of his
youth for the first time here, given our conclusion that the
evidence is otherwise insufficient to support a finding of reckless
indifference to human life.
7
The findings of the trial court upon conflicting evidence
are conclusive. (Wilbur v. Wilbur (1925) 197 Cal. 1, 7.)
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factors concerning use of or awareness of weapons and
knowledge of a cohort’s propensity for violence therefore do not
weigh in favor of a finding of reckless indifference.
2. Duration of the Crime
Neither the trial court nor the Court of Appeal explicitly
addressed the duration of the felony. A lengthy interaction
between perpetrators and victims of a felony may increase the
risk of resistance, conflict, and violence. “Courts have looked to
whether a murder came at the end of a prolonged period of
restraint of the victims by defendant. . . . Where a victim is held
at gunpoint, kidnapped, or otherwise restrained in the presence
of perpetrators for prolonged periods, ‘there is a greater window
of opportunity for violence’ [citation], possibly culminating in
murder.” (Clark, supra, 63 Cal.4th at p. 620.)
Here, the Attorney General acknowledges that the
duration of the contact between Sonenberg, Whitley and
Emanuel was “likely not more than 12 minutes,” and the
duration of the violent contact between Sonenberg and Whitley
was “presumably even less than that.” (See In re Bennett (2018)
26 Cal.App.5th 1002, 1024 [describing minutes-long encounter
as “negligible” in concluding that the duration of the felony did
nothing to increase the risk of violence beyond that inherent in
the crime].) Sonenberg texted to say he had arrived at the park
at 3:06 p.m., indicating that he, Whitley, and Emanuel had not
yet met up. The police dispatch went out at 3:20 p.m., as did the
first call from Emanuel’s phone to Santos. That leaves, at most,
14 minutes for the three men to convene, the struggle between
Whitley and Sonenberg, the shooting, the collision of
Sonenberg’s truck, and the summoning of emergency responders
by witnesses. Eyewitness testimony placed the gunshot at
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closer to 3:15 p.m., narrowing the relevant timeframe to
approximately nine minutes.
Focusing on the period of the violent confrontation, the
available evidence, including forensic evidence, reflects that
Whitley shot Sonenberg during a brief struggle. There was no
prolonged period of restraint, and the interaction appears to
have been nonviolent until Sonenberg refused to relinquish the
marijuana without payment. It was at that point that Emanuel
said to Whitley, “let’s go.” The prosecutor stated during closing
argument, “Now, this happened fast. This happened real
fast. . . . [¶] . . . This man, Jacob Whitley leaned in [to
Sonenberg’s truck] just enough to crack him over the head and
put a bullet through him and snatch his pound of wee[d] in the
Vans shoebox and get out just in time before [Sonenberg’s truck]
backed away.” The Clark factor concerning duration of the
crime therefore is neutral in this case; it did nothing to heighten
the risk of violence beyond that inherent in the robbery itself.
3. Efforts Taken to Minimize the Risk of Violence
We next consider any efforts the defendant made to
minimize the risk of violence in the commission of the felony.
The trial court noted that the robbery occurred around 3:00 p.m.
on a residential street adjacent to a park and observed that “the
commission of the crime during daylight hours in public view
may have had the potential for minimizing violence . . . .” (See
Scoggins, supra, 9 Cal.5th at p. 683 [although an unarmed
assault and robbery contemplated the use of some violence,
planning that it “take place in a public parking lot during the
daytime, when the possible presence of witnesses might
reasonably be thought to keep [the defendant’s] accomplices
within the bounds of the plan” tended to minimize the risk of
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lethal violence].) The trial court nonetheless discounted this
factor because “there is no evidence that the robbery was
planned for that time or that it was planned to occur at that time
for the purpose of minimizing the risk of violence.”
To the contrary, the record demonstrates Whitley and
Emanuel arranged to meet Sonenberg at Cherry Park at
approximately 2:30 p.m. They did not meet at that time and
location by happenstance. We have never required direct
evidence that a felony was planned a certain way for the express
purpose of minimizing the risk of violence; circumstantial
evidence regarding the plan itself may suffice. (See Scoggins,
supra, 9 Cal.5th at p. 683.) Indeed, before noting that certain
elements of the defendant’s plan tended to minimize the
potential for violence in Scoggins, we recognized that the need
to minimize the risk of violence is “ ‘less pressing’ ” when the
planned crime does not involve “ ‘the use of weapons.’ ” (Ibid.)
“ ‘This fact is, by itself, a significant step towards minimizing
the likelihood that the plan would result in a “grave risk of
death.” ’ ” (Ibid.) Here, as in Scoggins, the trial court found the
record does not contain evidence that Emanuel planned a
robbery involving the use of weapons. Nor does the record
contain evidence that Emanuel knew Whitley had a propensity
for violence. Emanuel planned to participate in a robbery in a
public location during daylight hours. The crime occurred in the
open where witnesses might be present to observe from the
park, passing vehicles, or nearby residences. This factor
therefore does not support a finding of reckless indifference.
We note that, although the Court of Appeal endorsed the
trial court’s finding that Emanuel “had an opportunity to
minimize the risk of violence during the robbery itself but failed
to do so,” the court conflated this Clark factor with the factor
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concerning physical presence at the scene and opportunity to
restrain confederates or aid victims, which we discuss
separately below. (Emanuel, supra, H049147.) Rather than
analyze the facts identified by the trial court as relevant to the
minimization of risk during the planning stage, the Court of
Appeal reiterated its analysis of facts relating to Emanuel’s
actions during the robbery. (Ibid.) Efforts at the planning stage
to minimize the potential for violence, however, are viewed as a
distinct factor from efforts to restrain confederates once the
felony is underway. (See Clark, supra, 63 Cal.4th at p. 623
[assessing whether the defendant “planned the crime with an
eye to minimizing the possibilities for violence”].) The
authorities cited by the Court of Appeal likewise concern
restraint, not minimization. (Emanuel, supra, H049147, citing
In re McDowell (2020) 55 Cal.App.5th 999, 1014 (McDowell) and
In re Loza (2017) 10 Cal.App.5th 38, 51 (Loza).) Lower courts
should take care to consider the presence or absence of evidence
relating to each relevant factor on its own merits before
considering the evidence in its totality.
The Court of Appeal’s assertion that Emanuel “had an
opportunity to minimize the risk of violence . . . but failed to do
so,” suggests this factor weighs in favor of a finding of reckless
indifference unless Emanuel made such efforts. That is not
necessarily so. “If the evidence supports an argument that
defendant engaged in efforts to minimize the risk of violence in
the felony, defendant may raise that argument” and the trial
court “shall consider it as being part of all the relevant
circumstances that considered together go towards supporting
or failing to support” a finding of reckless indifference. (Clark,
supra, 63 Cal.4th at p. 622.) “[T]he existence of efforts to
minimize violence does not necessarily foreclose a finding of
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reckless indifference to human life” (Scoggins, supra, 9 Cal.5th
at p. 682), however, given the “two-part nature of the mens rea”
requirement. (Clark, at p. 622.) Where an “objective evaluation
of the circumstances” of the crime suggests the risk of violence
is grave, the defendant’s apparent efforts to minimize that risk
may be unavailing. (Scoggins, at p. 683, citing Clark, at
pp. 622–623.) Conversely, the absence of such efforts does not
necessarily evince a subjective disregard for risk where the
objective circumstances of the planned crime suggest the risk of
violence posed is no more than that inherent in any violent
felony. (See Scoggins, supra, 9 Cal.5th at p. 679 [observing that
the defendant “had no reason” to instruct his cohorts to “avoid
using lethal force” because his plan “did not contemplate any use
of lethal force,” and unlike the defendants in Tison, “he had no
reason to suspect that his accomplices were armed or planning
to kill” the victim].) In such a case, then, the absence of efforts
to minimize the risk of violence cannot be said to weigh in favor
of a finding of reckless indifference. This applies all the more so
when the planned crime does not involve the use of weapons.
The Attorney General endorses a similar and even broader
view than that adopted by the Court of Appeal, faulting
Emanuel for having failed to prevent the robbery from occurring.
The Attorney General asserts that Emanuel “could have called
the robbery off at several points prior to December 11, yet he did
not.” The felony-murder doctrine comes into play only where a
defendant perpetrates or attempts to perpetrate an underlying
felony. Participation in the underlying felony is presupposed
but no longer sufficient to impose murder liability. Where a
defendant is not the actual killer or an aider and abettor acting
with intent to kill, Senate Bill No. 1437 tasks us to distinguish
between defendants who participate in a violent felony posing
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Opinion of the Court by Evans, J.
only the foreseeable risk of death inherent in any such crime
(who are not liable for deaths that may occur during its
commission) from those who knowingly engage in criminal
activities known to carry a grave risk of death (who are liable).
That Emanuel failed to stop the robbery from occurring does not
aid in distinguishing the two.
In any event, even if the circumstances cited by the trial
court do not reflect affirmative efforts by Emanuel to minimize
the risk of violence at the planning stage, they nonetheless
reflect aspects of the felony — beyond those already captured by
the other enumerated Clark factors — “that provide insight into
both the magnitude of the objective risk of lethal violence” posed
by the planned crime and Emanuel’s “subjective awareness of
that risk.” (Clark, supra, 63 Cal.4th at p. 623; see also Strong,
supra, 13 Cal.5th at p. 706 [noting that Clark “set out a
nonexhaustive list of considerations” relevant to the reckless
indifference inquiry (italics added)].) Where a defendant plans
to commit an armed home invasion robbery at 3:00 a.m., with
knowledge of several armed occupants and a methamphetamine
operation within, for example (see McDowell, supra, 55
Cal.App.5th at p. 1005), a trier of fact might reasonably conclude
that the objective risk of violence posed by the crime and
reasonably anticipated by the perpetrator is graver than the risk
of violence inherent in any violent felony. By contrast, where a
defendant plans to commit an unarmed robbery of a marijuana
dealer at a public park in the middle of the afternoon, the
objective risk of violence posed by the crime and reasonably
anticipated by the perpetrator is far less grave.
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4. Physical Presence at the Scene and Opportunity to
Restrain Confederates or Aid Victims
With the foregoing in mind, we consider the last of the
enumerated Clark factors: physical presence at the scene and
opportunity to restrain the violence or aid the victim.
“Proximity to the murder and the events leading up to it may be
particularly significant where . . . the murder is a culmination
or a foreseeable result of several intermediate steps, or where
the [co-]participant who personally commits the murder exhibits
behavior tending to suggest a willingness to use lethal force. In
such cases, ‘the defendant’s presence allows him to observe his
cohorts so that it is fair to conclude that he shared in their
actions and mental state. . . . [Moreover,] the defendant’s
presence gives him 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.’ ” (Clark, supra, 63 Cal.4th at
p. 619.)
Both the trial court and the Court of Appeal placed much
emphasis on Emanuel’s “physical proximity” to and purported
opportunity to restrain the crime. (Emanuel, supra, H049147.)
The Court of Appeal stated: “The trial court could legitimately
conclude that, as one who planned the robbery and was one of
its intended beneficiaries, Emanuel had the ability to prevent it
from happening or could have done more to prevent Whitley
from shooting [Sonenberg]. Although, according to Emanuel, he
encouraged Whitley to let [Sonenberg] keep the marijuana and
walk away, it became apparent Whitley was ignoring his advice
when Whitley struck [Sonenberg] with his gun. There is no
evidence that Emanuel made any further attempt to dissuade
Whitley or intercede, perhaps by trying to take the gun from
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Opinion of the Court by Evans, J.
Whitley or distracting him so that [Sonenberg] might have
driven away.” (Ibid.)
In support of this analysis, both lower courts and the
Attorney General rely on McDowell, supra, 55 Cal.App.5th 999
and Loza, supra, 10 Cal.App.5th 38. In McDowell, after the
victim refused to hand over drugs during a home invasion
robbery, the defendant’s coparticipant fired a warning shot into
the floor. (McDowell, at p. 1005.) A third party implored the
shooter not to hurt the victim, after which the victim said,
“ ‘[K]ill me if you’re going to kill me.’ ” (Ibid.) A struggle ensued
and the victim tried to grab the gun. (Ibid.) The coparticipant
fired two shots, killing the victim. (Ibid.) Although the Court of
Appeal described the case as “close to the line” (id. at p. 1015),
it noted that the defendant had an opportunity to intervene after
the warning shot and failed to do so (id. at pp. 1014–1015).
Together with other facts, including that the defendant planned
an armed robbery under conditions that carried a heightened
risk of lethal violence and armed himself with a palm knife, the
Court of Appeal concluded there was sufficient evidence of
reckless indifference. (Id. at p. 1015.)
Similarly, in Loza, after the defendant’s coparticipant
demanded money from two gas station clerks and a clerk said
there was no money, the coparticipant threatened to shoot the
clerks, “ ‘saying “I ain’t playing,” and telling the clerks they had
five seconds.’ ” (Loza, supra, 10 Cal.App.5th at p. 54.) One of
the clerks replied, “ ‘ “Shoot me.” ’ ” (Ibid.) The armed
coparticipant “counted down,” then shot the clerk. (Ibid.) The
Court of Appeal concluded that, in that time, the defendant
“could have done any number of things to intercede or assist the
victims — e.g., yell at [his coparticipant] to stop, try to halt the
countdown, demand that they leave, distract [his coparticipant],
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or attempt to calm [him], to name a few.” (Ibid.) The court
emphasized that “the shooting was not spontaneous or
accidental; rather, [the coparticipant] made clear his intent to
shoot, which afforded petitioner the time to observe and react
before the murder.” (Id. at p. 53.) Taken together with other
facts, including that the defendant supplied the shooter with the
gun immediately prior to the robbery, the court concluded there
was sufficient evidence of reckless indifference. (Ibid.)
The instant case is unlike McDowell and Loza. In contrast
to the defendants in those cases, Emanuel attempted to act as a
restraining influence. In fact, the trial court appears to have
accepted that he took one of the actions suggested in Loza — he
advocated that he and Whitley leave. (See also People v.
Mitchell (2022) 81 Cal.App.5th 575, 593 [suggesting the
accomplice to felony murder could have “tried to call off the plan”
or “fled the scene”].) In addition to saying “let’s go,” Emanuel
began walking away from the robbery. This provides crucial
insight into Emanuel’s state of mind. When met with
resistance, Emanuel abandoned the plan rather than resort to
greater violence.
The courts below discounted the foregoing evidence,
asserting that Emanuel could have done more to prevent
Whitley from shooting, perhaps even “by trying to take the gun
from [him].” (Emanuel, supra, H049147.) The district attorney
at the resentencing hearing would have gone a step further,
asserting that Emanuel should have “taken the bullet, if
necessary.” Although we consider whether a defendant acts as
a restraining influence on his cohorts, it is not incumbent on a
defendant to actually prevent the violence or attempt to do so by
any means necessary. The Attorney General acknowledges that
Emanuel need not have gone “so far as succeeding in preventing
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Opinion of the Court by Evans, J.
the shooting, such as by disarming Whitley” (italics added), but
nevertheless suggests other, more efficacious actions he might
have taken, such as trying to distract Whitley. This too misses
the point. The essential question underpinning our analysis is
not whether Emanuel did enough to try to stop Whitley’s
unplanned act of violence; it is whether Emanuel acted with the
requisite mens rea, i.e., reckless indifference to human life. The
focus should not be on the ultimate efficacy of his actions, but on
what his actions reveal about his mental state. The courts below
did not carefully consider evidence bearing on Emanuel’s state
of mind but rather simply judged that he had not employed an
adequate measure of restraint. That is not the standard by
which we assess reckless indifference. Efforts at restraint serve
as only one of several factors that should be assessed in deciding
whether, in light of the totality of the circumstances, the
defendant acted with reckless indifference to human life.8
Moreover, even setting aside Emanuel’s actions before
Whitley pulled out the gun, the evidence is insufficient to
support a finding that Emanuel’s failure to intervene reflected
intentional inaction indicative of reckless indifference to human
life. (See People v. Keel (2022) 84 Cal.App.5th 546, 560 (Keel)
[concluding this factor was neutral where the accomplice’s
decision to shoot was made quickly in response to unexpected
resistance]; Moore, supra, 68 Cal.App.5th at p. 452 [the “short
duration of the robbery and the sudden and unprovoked nature
8
The trial court also posited that Emanuel’s actions may
have been motivated by a desire to “avoid criminal liability,”
rather than a “desire to protect Cody.” However, so long as
Emanuel did not act with reckless indifference to the life of the
victim, he need not have acted with the purpose of protecting
the victim.
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of the shooting” reinforced the conclusion that the defendant
could not have restrained his accomplice’s actions].) The trial
court reasoned “there was at least a minimal period of time in
which [Emanuel] was aware of the gun and in which he could
have tried to prevent the shooting.” In almost every case, “at
least a minimal period of time” will elapse between the display
of a gun and its firing. But where violence unfolds “quickly,” a
defendant may “lack control” over the actions of his
confederates. (Scoggins, supra, 9 Cal.5th at p. 679.) This
contrasts with cases like Tison, “where a long sequence of events
culminated in murder,” giving the defendants time to intervene.
(Scoggins, at p. 679, citing Tison, supra, 481 U.S. at pp. 139–
141.)
We do not suggest that a rapidly unfolding crime may
never allow for a finding of reckless indifference to human life.
But where a crime unfolds quickly, this factor — the failure to
restrain a cohort — cannot be said to weigh in favor of a finding
of reckless indifference without some evidence in the record
indicating that the defendant had a meaningful opportunity to
do so. (Keel, supra, 84 Cal.App.5th at p. 560.) This requires
some awareness of the risk of impending lethal violence and
time to react. In Loza and McDowell, for example, although the
opportunity for intervention may have been brief, the shooters
in both cases made their intentions clear, affording each
defendant “the time to observe and react before the murder.”
(Loza, supra, 10 Cal.App.5th at p. 53.) The shooters made
express threats to shoot and either counted down or fired a
warning shot. In this case, Whitley took no such actions.
Nor was Whitley’s intent immediately clear. The trial
court found, based on its review of the evidence, that “simply
pulling out the gun and hitting [Sonenberg] with it did not
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necessarily inform [Emanuel] that Whitley was willing to
shoot.” The evidence suggests that Whitley’s acts were not
anticipated, but rather, “a spontaneous response” to unexpected
resistance from the victim. (Banks, supra, 61 Cal.4th at p. 807;
see Scoggins, supra, 9 Cal.5th at p. 687 [observing that, as the
crime unfolded, the defendants in Tison “knew that their father
was debating whether to kill the victims and had ample
opportunity to restrain the crime and aid the victims,” but did
neither]; id. at p. 681 [again observing that the defendants in
Tison “had advance knowledge that lethal force might be
used”].) Without forewarning that Whitley would deploy lethal
violence, Emanuel’s inaction is less probative. Based on the
findings of the trial court, the murder was not “a culmination or
a foreseeable result of several intermediate steps,” nor did
Whitley “exhibit[] behavior tending to suggest a willingness to
use lethal force” prior to committing the fatal act itself. (Clark,
supra, 63 Cal.4th at p. 619.)
The courts below also considered Emanuel’s failure to
render aid to Sonenberg. The Court of Appeal observed: “There
is also no evidence that Emanuel made any effort to assist
[Sonenberg], even by calling for an ambulance, after the
shooting itself. Instead, Emanuel joined Whitley in fleeing the
scene and leaving [Sonenberg] to his fate.” (Emanuel, supra,
H049147.) Although acknowledging that Emanuel’s actions
“after he fled the scene are inherently of less value,” the trial
court also considered that he “remained in Whitley’s presence,”
made efforts to avoid arrest (such as disposing of the phone and
asking Santos to lie to the police), and “made no effort to assist
the police in solving the crime.” The Court of Appeal, on the
other hand, found Emanuel’s postflight conduct “ambiguous at
best,” observing that “it is unclear whether these actions
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demonstrated that he acquiesced or approved of Whitley’s use of
lethal violence, or whether he simply wanted to avoid arrest.”
(Emanuel, supra, H049147.) The Court of Appeal further noted
that, according to Santos, both Emanuel and Whitley “were
panicked after the shooting.” (Ibid.)
We have recognized that a defendant’s conduct following
the use of lethal force may be reflective of his or her mental state
during the offense, noting that the United States Supreme
Court considered the failure to render aid to the victims in
Tison. (Scoggins, supra, 9 Cal.5th at p. 679, citing Clark, supra,
63 Cal.4th at p. 619; Tison, supra, 481 U.S. at pp. 151–152.) The
defendants in Tison guarded the victims at gunpoint while their
murderous cohorts deliberated whether to kill them. (Tison, at
p. 151.) The high court observed that the defendants “stood by
and watched the killing, making no effort to assist the victims
before, during, or after the shooting.” (Ibid.) At least one of the
victims initially survived the shooting but later succumbed to
her severe injuries. (Id. at p. 141.) Notably, the defendants
abandoned the victims in the remote desert after disabling the
only vehicle — and chance of survival — available to them. (Id.
at pp. 140–141.) The high court opined that these facts
indicated, not only that the defendants’ participation in the
crime was “anything but minor,” but also that they “subjectively
appreciated that their acts were likely to result in the taking of
innocent life.” (Id. at p. 152.)
This court has also observed that “when different
inferences may be drawn from the circumstances, the
defendant’s actions after the shooting may not be very probative
of his mental state.” (Scoggins, supra, 9 Cal.5th at p. 679.) In
Clark, for example, we observed that the “ambiguous
circumstances surrounding [the defendant’s] hasty departure”
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from the scene of the shooting made it “difficult to infer his
frame of mind concerning [the victim’s] death.” (Clark, supra,
63 Cal.4th at p. 620.) There, the defendant fled from the scene
in his vehicle, leaving behind the shooter and the victim. (Ibid.)
We said it could be inferred that the defendant “was motivated
to flee the scene by that point to avoid arrest, whether or not he
had seen the body of the victim.” (Ibid.) Abandonment of the
shooter could be interpreted as a rejection of the shooter’s
actions or simply indicative of the defendant’s desire to “flee the
scene as quickly as possible, without regard for [the shooter’s]
welfare or that of the shooting victim.” (Ibid.) Unlike in Tison,
the defendant in Clark would have known that help was on the
way because a patrol car approached as he fled the scene. (Ibid.)
Looking at the instant case, we note that Emanuel had no
meaningful opportunity to aid Sonenberg before the shooting.
(Cf. Tison, supra, 481 U.S. at p. 151.) Where a defendant is
aware of the risk of impending lethal violence, he or she may opt
to aid the victims — for example, by permitting them to flee —
rather than attempt to restrain his or her coperpetrator.
Because there was no prolonged period of restraint or
forewarning that Whitley would deploy lethal violence,
Emanuel had no such opportunity. We further note that
Emanuel took no actions after the shooting that might prevent
or interfere with Sonenberg’s ability to obtain or chances of
receiving aid. (Cf. Tison, at pp. 140–141, 151.)
On the record here, we conclude the circumstances of
Emanuel’s flight make it difficult to infer his frame of mind
concerning Sonenberg’s death. (Clark, supra, 63 Cal.4th at
p. 620.) The shooting occurred in the afternoon in a residential
area adjacent to a public park. The sound of the gun firing was
followed immediately by screeching tires and the collision of
32
PEOPLE v. EMANUEL
Opinion of the Court by Evans, J.
Sonenberg’s truck with a tree. The evidence shows that
numerous witnesses were nearby and heard the commotion, and
at least two of them called 911. Sirens could be heard
approaching shortly after the shooting and first responders
arrived on the scene within minutes. Much as in Clark, these
circumstances are susceptible to differing interpretations.
(Ibid.) Considering the location and timing of the shooting, it
could be inferred that Emanuel was motivated to flee the scene
as quickly as possible to avoid arrest, whether or not he
understood the extent of Sonenberg’s injuries. (Clark, at p. 620.)
Particularly where the presence of other persons nearby makes
it more likely that Sonenberg would receive aid without
intervention by Emanuel. (See Scoggins, supra, 9 Cal.5th at
p. 680 [observing there was “no occasion for [the defendant] to
seek further assistance” when “other bystanders had already
called the police”].)
The other postflight conduct relied upon by the trial court
is simply too attenuated. Reckless indifference requires that the
defendant “consciously disregard ‘the significant risk of death
his or her actions create.’ ” (Scoggins, supra, 9 Cal.5th at p. 677.)
This state of mind must exist at the time of the underlying
felony. While postflight conduct may shed light on a defendant’s
state of mind, conduct temporally removed from the violent act
must clearly evince a culpable mental state. (See id. at p. 680
[concluding the defendant’s conduct and demeanor after the
shooting was ambiguous where it “might indicate” that he
“anticipated the use of lethal force” but also “might indicate” a
less culpable mind state].) As the lower courts readily
acknowledged, Emanuel’s postflight conduct reflects a desire to
avoid arrest. Some of that conduct, such as disposing of the
phone used to contact Sonenberg, was incriminating as a
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Opinion of the Court by Evans, J.
general matter. But on this record it reveals little about
whether he acted with the requisite state of mind when the
shooting occurred. (See People v. Pearson (2013) 56 Cal.4th 393,
461 [observing that the defendant’s expressions of remorse
during a police interview were not “relevant to his state of mind
at the time of the murders”].) However contemptable we may
find a defendant’s conduct following a killing, the governing
standard is not satisfied by evidence that the defendant was
generally indifferent to the fact that someone has been killed; it
requires evidence that, at the time of the shooting, the
defendant acted with indifference toward the grave risk that
someone could be killed. Though the former may be evidence of
the latter, it is insufficient, standing alone, to support murder
liability.
As the Court of Appeal acknowledged (see Emanuel,
supra, H049147, quoting In re Taylor (2019) 34 Cal.App.5th 543,
560), even if a defendant is unconcerned that the planned felony
resulted in a death, there must also be evidence that the
defendant was aware of and willingly involved in the violent
manner in which the felony was committed and consciously
disregarded the significant risk of death that his or her actions
created. Here, based on the trial court’s findings, there is no
evidence Emanuel planned anything other than a strong-arm
daylight robbery in a public park. Nor is there evidence that his
actions created a grave risk of death. Accordingly, although
Emanuel’s conduct after the shooting may be offensive, given
the “relative paucity” of other evidence supporting a finding of
reckless indifference to human life, his culpability falls short of
the benchmark set by section 189, subdivision (e)(3). (Clark,
supra, 63 Cal.4th at p. 623 [evidence of reckless indifference was
insufficient despite the fact that the defendant fled the scene
34
PEOPLE v. EMANUEL
Opinion of the Court by Evans, J.
without rendering aid to the victim]; Taylor, supra, 34
Cal.App.5th at p. 560 [evidence was insufficient to support a
finding of reckless indifference, even though the defendant
made no attempt to aid the victim and instead helped the
shooter flee the scene].)
5. Totality of the Circumstances
In sum, the evidence shows Emanuel set out to commit a
robbery in a public place in the middle of the afternoon. He was
not armed, and the trial court found he did not know Whitley
was armed or likely to use lethal force. Accordingly, there was
nothing in the plan that “elevated the risk to human life beyond
those risks inherent in any armed robbery,” much less a planned
unarmed robbery. (Clark, supra, 63 Cal.4th at p. 623.) The
crime unfolded without a prolonged period of restraint. When
met with unexpected resistance, Emanuel told Whitley, “let’s
go,” and began to walk away. This tends to show that Emanuel
was unwilling to engage in further violence to accomplish the
aims of the robbery. Whitley, on the other hand, pulled out a
gun, hit Sonenberg with it, and fatally shot him in the neck.
The trial court acknowledged that many of the Clark
factors were neutral or did not weigh in favor of a finding of
reckless indifference. In its view, however, Emanuel “started
the chain of events” that endangered Sonenberg’s life, i.e., the
robbery, and then tried to “wash” his hands of it after Whitley
pulled out a gun. This, the trial court found, was insufficient to
avoid murder liability. The courts below would have had
Emanuel do more to intercede, such as attempt to disarm
Whitley. But such a mechanical focus on unsuccessful or
inadequate efforts at restraint risks imposing murder liability
based solely on a defendant’s participation in an underlying
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PEOPLE v. EMANUEL
Opinion of the Court by Evans, J.
felony in which a death occurs. This is precisely what Senate
Bill No. 1437 and our case law prohibit.
Although Emanuel fled the scene without rendering aid to
Sonenberg, his conduct after the shooting is ambiguous. It may
reflect a lack of regard for Sonenberg’s welfare; it may reflect a
desire to avoid arrest; or it may reflect both. Standing alone,
however, it is insufficient to demonstrate that Emanuel acted
with reckless indifference to human life. In concluding
otherwise, the courts below applied the Clark factors in a
manner divorced from their animating principles. The
nonexhaustive list of factors identified as relevant to the
reckless indifference inquiry must not supplant the standard
they are meant to elucidate.
III. DISPOSITION
We reverse the judgment of the Court of Appeal with
instructions to remand the case to the trial court to grant
Emanuel’s petition for resentencing, vacate his murder
conviction, and resentence him. (See § 1172.6, subds. (d)(3), (e).)
EVANS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
36
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Emanuel
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 5/12/23 – 6th Dist.
Rehearing Granted
__________________________________________________________
Opinion No. S280551
Date Filed: June 2, 2025
__________________________________________________________
Court: Superior
County: Santa Clara
Judge: Vanessa A. Zecher
__________________________________________________________
Counsel:
Solomon Wollack, under appointment by the Supreme Court, for
Defendant and Appellant.
Galit Lipa, State Public Defender, and AJ Kutchins, Deputy State
Public Defender, for the Office of the State Public Defender as Amicus
Curiae on behalf of Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Assistant Attorney General,
Seth K. Schalit, Bridget Billeter, Linda M. Murphy, Amit Arun
Kurlekar and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff
and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Solomon Wollack
Attorney at Law
P.O. Box 23933
Pleasant Hill, CA 94523
(925) 671-2501
Sarah J. Farhat
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 510-3792