People v. Banks

Filed 7/9/15

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S213819

v. )

) Ct.App. 2/2 B236152

LEON BANKS et al., )

) Los Angeles County

Defendants and Appellants. ) Super. Ct. No. BA347305

____________________________________)

In 1990, the voters passed Proposition 115, which adopted a wide range of

criminal justice reforms, including extending death penalty eligibility to ―major

participant[s]‖ in felony murders. (Pen. Code, § 190.2, subd. (d)1 (section

190.2(d)), added by initiative, Primary Elec. (June 5, 1990) Prop. 115, § 10; see

Raven v. Deukmejian (1990) 52 Cal.3d 336, 342–345.) The issue before us is

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.

Section 190.2(d) was designed to codify the holding of Tison v. Arizona

(1987) 481 U.S. 137, 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, collectively place conduct on

a spectrum, with felony-murder participants eligible for death only when their

1 All further statutory citations are to the Penal Code.

involvement is substantial and they demonstrate a reckless indifference to the

grave risk of death created by their actions. Section 190.2(d) must be accorded the

same meaning.

Here, defendant Lovie Troy Matthews acted as the getaway driver for an

armed robbery in which Leon Banks and others participated. In the course of

escaping, Banks shot one of the robbery victims. A jury found Matthews guilty of

first degree murder under a felony-murder theory and found true a felony-murder

special circumstance. The People did not seek the death penalty; consequently,

Matthews received the mandatory lesser sentence for special circumstance murder,

life imprisonment without parole. (§ 190.2, subd. (a).) Section 190.2(d) must be

given the same interpretation irrespective of whether the defendant is subsequently

sentenced to death or life imprisonment without parole. Because the record

establishes Matthews was no more culpable than the getaway driver in Enmund v.

Florida, supra, 458 U.S. 782, the evidence was insufficient as a matter of law to

support the special circumstance, and Matthews is statutorily ineligible for life

imprisonment without parole. We reverse the Court of Appeal‘s contrary decision

and remand for resentencing.

PROCEDURAL AND FACTUAL BACKGROUND

Matthews‘s culpability for first degree felony murder is not in dispute. We

address only those facts relevant to the narrow issue on which we granted review,

whether Matthews can be found guilty of special circumstance murder and

sentenced to life imprisonment without parole. We recite the evidence in the light

most favorable to the jury‘s verdict. (People v. Jackson (2014) 58 Cal.4th 724,

749.)

The La Brea Collective is a Los Angeles medical marijuana dispensary. At

its 2008 location, the dispensary had a metal security door providing access from

the sidewalk and behind that door a sally port and second lockable door leading

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into the lobby. Patients who rang the front doorbell were required to pass

identification and a physician‘s medical marijuana recommendation through a slot

in the door to a security guard, Noe Gonzalez, stationed in the sally port. Once the

papers were verified, patients would be escorted through the sally port and second

locked door into the dispensary lobby. Surveillance cameras monitored the

premises.

On the afternoon of October 1, 2008, an employee looked at the camera

monitor and saw Gonzalez being escorted into the lobby by two men armed with

guns. The two men and a third accomplice, later identified as Leon Banks, David

Gardiner, and Brandon Daniels, began tying up employees and searching the

premises. One of them asked an employee, ―Where‘s the stuff at?‖ When shots

were fired, the three stopped and fled. An employee watched on the monitor as

the three reached the front door and struggled to exit. Banks returned to the lobby

and fired a shot out the front window. After additional shots were fired, the three

were able to escape.

A witness across the street saw Gonzalez trying to push the front door

closed from the outside. The witness saw Banks reach his hand around the door

from the inside and shoot Gonzalez. As Gonzalez fell, Banks stepped out and shot

him again. Banks, Gardiner, and Daniels fled on foot.

A driver passing the dispensary at approximately 3:45 p.m. heard popping

sounds and saw Banks and Gonzalez struggling at the dispensary‘s front door.

Both had guns and were reaching around the door and shooting at each other.

When the driver pulled over and looked back, he saw Gonzalez lying on the

sidewalk.

On a residential street one block from the dispensary, a man was standing

on the sidewalk in front of his house when Daniels ran by and asked to use his

bathroom. The man refused, causing Daniels to pause. An SUV with paper

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license plates reading ―Power‖ came around the corner, and Daniels screamed

―Troy, Troy‖ (Matthews‘s middle name). The SUV slowed without completely

stopping. Daniels jumped in, another man later identified as Gardiner came across

the street and jumped in as well, and Matthews drove off.

Police responding to the scene found Gonzalez dead on the sidewalk, a

revolver with his DNA on it on the ground near his outstretched arm.2 The

revolver contained two live rounds and three spent rounds. Within minutes, Banks

was captured on foot near the dispensary. Later that afternoon, an SUV with paper

Power plates was stopped a few blocks from the dispensary; Matthews, the driver

and sole occupant, was arrested. The SUV was registered to Banks and another

person, and clothing belonging to Banks was found inside. In a field show-up,

witnesses identified Banks as the shooter. Over the next few days, police found at

or near the dispensary a photocopy of a doctor‘s medical marijuana

recommendation and Banks‘s driver‘s license, zip ties, gloves, a holster, and a

semiautomatic handgun. DNA, fingerprint, and palm print testing tied Banks,

Daniels, and Gardiner to the dispensary, gloves, zip ties, and doctor‘s statement,

but excluded Matthews. Ballistics tests confirmed the semiautomatic handgun

was the murder weapon.

Cellphones were recovered from Banks and Matthews. Call records

showed Matthews called Banks six times during the afternoon of October 1. Each

call lasted between 20 and 50 seconds; the calls came at 2:53, 3:46, 3:49, 3:51,

3:53, and 3:56 p.m. It was not possible to determine whether the two spoke or

these calls went to voicemail. Banks called Matthews three times, at 1:49, 3:44,

2 Gonzalez‘s coworkers testified he was unarmed while on duty. The source

of Gonzalez‘s gun was never conclusively established.

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and 3:58 p.m., with each call lasting approximately 20 seconds; these calls were

answered.

Matthews was wearing a global positioning system (GPS) tracking device

that showed his movements to within 15 meters. An expert testified Matthews

was on the block containing the dispensary at 2:51 p.m., then three blocks away at

3:00 p.m., where he remained for approximately 45 minutes. At 3:46 p.m.,

Matthews moved toward the dispensary and made a series of stops within a few

blocks of it over the next few minutes.

A gang expert testified Matthews, Gardiner, and Daniels were members of

the same criminal street gang. The gang‘s primary activities were described

generally as narcotics sales, burglaries, robberies, shootings, attempted murders,

murders, and gun possession. No evidence was presented that Matthews,

Gardiner, or Daniels had killed before, or that Matthews knew any of the three had

killed before. The expert testified Banks was not a member of the gang.

Banks and Matthews were tried together. Matthews did not present any

evidence on his own behalf but argued the prosecution had failed to carry its

burden of proof.

A jury convicted Matthews of first degree murder and found true the

special circumstance that the murder was committed during an attempted robbery

or burglary. (§§ 187, subd. (a), 190.2, subd. (a)(17).) He was also convicted of

burglary and attempted robbery with gang and firearm enhancements. (§§ 186.22,

subd. (b)(1), 211, 459, 664, former 12022.53, subds. (d), (e).) Because the

prosecution did not seek the death penalty, Matthews was sentenced to life

imprisonment without parole.

On appeal, the Court of Appeal rejected Matthews‘s challenge to the

sufficiency of the evidence supporting the special-circumstance true finding. It

held his actions as a getaway driver in supporting the underlying robbery, with

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knowledge death was always a possibility in an armed robbery, were legally

sufficient under section 190.2(d). Given the significance of section 190.2(d) in

determining which felony murderers are eligible for either life imprisonment

without parole and death, or a lesser sentence, we granted review to address its

proper construction.

DISCUSSION

I. The Felony-murder Aider and Abettor Special Circumstance

The federal Constitution‘s Eighth Amendment does not prohibit the death

penalty, but it does require that states offer guidance to sentencing bodies tasked

with differentiating those for whom death is appropriate from those for whom it is

not. (Gregg v. Georgia (1976) 428 U.S. 153, 187–189; People v. Crittenden

(1994) 9 Cal.4th 83, 154; People v. Green (1980) 27 Cal.3d 1, 48.) California

provides this guidance through a two-step process. First, a list of special

circumstances identifies those crimes deemed sufficiently reprehensible to warrant

possible punishment by death. (§ 190.2; People v. Bacigalupo (1993) 6 Cal.4th

457, 467–468.) If a sentencer finds one or more special circumstances true, the

defendant becomes death eligible and must be sentenced to either death or life

without the possibility of parole. (§ 190.2, subd. (a).) Second, the sentencer must

consider potential statutory aggravating factors and weigh them against any

mitigating factors to determine whether death or life imprisonment without parole

is the appropriate punishment. (§ 190.3; see Tuilaepa v. California (1994) 512

U.S. 967, 975–980; Bacigalupo, at pp. 468–470.)

The special circumstances statute extends death eligibility not only to

killers, but also to certain aiders and abettors of first degree murder. (§ 190.2,

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subds. (c), (d).)3 In the case of first degree felony murder, ―every person, not the

actual killer, who, with reckless indifference to human life and as a major

participant‖ aids or abets the crime may be convicted of special-circumstance

murder. (Id., subd. (d).) The statute thus imposes both a special actus reus

requirement, major participation in the crime, and a specific mens rea requirement,

reckless indifference to human life.4

Section 190.2(d) does not define what qualifies as major participation, but

the statutory history shows where to find guidance. As noted, the provision was

adopted by voter initiative. (See Prop. 115, as approved by voters, Primary Elec.

(June 5, 1990), § 10.) Supporters argued the initiative‘s ― ‗BIRD COURT‘

DEATH PENALTY PROVISIONS [would] improve our death penalty law and

overturn decisions by Rose Bird and her allies which made it nearly inoperative.‖

(Ballot Pamp., Primary Elec. (June 5, 1990) argument in favor of Prop. 115,

p. 34.) Among those decisions, Carlos v. Superior Court (1983) 35 Cal.3d 131,

135, had held the felony-murder special circumstance (§ 190.2, subd. (a)(17))

required an intent to kill. The post-Bird Court decision People v. Anderson (1987)

43 Cal.3d 1104, 1147, had occasion to overrule Carlos only insofar as it had

required an intent to kill for actual killers, leaving in place the intent requirement

for aiders and abettors. Thus, as it stood in 1990, state law made only those

3 As relevant here, involvement in both burglary murder and robbery murder

can subject an aider and abettor to death. (§ 190.2, subds. (a)(17)(A) & (G), (d).)

4 Alternatively, aiders and abettors who act with the intent to kill become

death eligible whether or not their conduct makes them major participants in the

crime. (§ 190.2, subd. (c).) The prosecution did not argue Matthews had the

intent to kill, relying exclusively on the theory he was a major participant who

acted with reckless indifference to human life.

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felony-murder aiders and abettors who intended to kill eligible for a death

sentence. (People v. Mil (2012) 53 Cal.4th 400, 408.)

Proposition 115 revised the scope of capital liability for aiding and abetting

felony murders by looking to federal constitutional law. The text of new section

190.2(d) mirrored the holding of, and was intended to bring ―state law into

conformity with[,] Tison v. Arizona[, supra,] 481 U.S. 137,‖ the United States

Supreme Court‘s most recent word on capital punishment for involvement in

felony murders. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 298, fn. 16; see

People v. Estrada (1995) 11 Cal.4th 568, 575, 580.) The term ―major participant‖

is borrowed directly from Tison. (Tison, at p. 158, fn. 12.) Because ―Tison is the

source of the language of section 190.2(d)‖ (Estrada, at p. 575), we ―look[] to

Tison for the meaning of the statutory phrase[s]‖ derived from it (id. at p. 576).

II. Tison v. Arizona and Enmund v. Florida

To understand the import of Tison, we start with an earlier case upon which

Tison builds, Enmund v. Florida, supra, 458 U.S. 782. In that case, defendant Earl

Enmund purchased a calf from victim Thomas Kersey and in the process learned

Kersey was in the habit of carrying large sums of cash on his person. A few

weeks later, Enmund drove two armed confederates to Kersey‘s house and waited

nearby while they entered. When Kersey‘s wife appeared with a gun, the

confederates shot and killed both Kerseys. Enmund thereafter drove his

confederates away from the scene and helped dispose of the murder weapons,

which were never found. He was convicted of robbery and first degree murder

and sentenced to death. (Id. at pp. 784–787; Enmund v. State (1981) 399 So.2d

1362, 1363–1367, revd. sub nom. Enmund v. Florida, supra, 458 U.S. 782.)

On these facts, the United States Supreme Court reversed Enmund‘s death

sentence as prohibited by the federal Constitution. The court found a broad

consensus against imposing death in cases ―where the defendant did not commit

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the homicide, was not present when the killing took place, and did not participate

in a plot or scheme to murder.‖ (Enmund v. Florida, supra, 458 U.S. at p. 795.)

Accordingly, it held the Eighth Amendment bars the death penalty for any felony-

murder aider and abettor ―who does not himself kill, attempt to kill, or intend that

a killing take place or that lethal force will be employed.‖ (Enmund, at p. 797.)

The intent to commit an armed robbery is insufficient; absent the further ―intention

of participating in or facilitating a murder‖ (id. at p. 798), a defendant who acts as

―the person in the car by the side of the road at the time of the killings, waiting to

help the robbers escape‖ (id. at p. 788) cannot constitutionally be sentenced to

death.

In Tison v. Arizona, supra, 481 U.S. 137, the Supreme Court revisited the

issue of death sentences for those guilty of felony murder as accomplices.

Prisoner Gary Tison‘s sons Ricky and Raymond Tison, with their brother Donald,

conducted an armed breakout of Gary and his cellmate from prison, holding

guards and visitors at gunpoint. During the subsequent escape, their car, already

down to its spare tire, suffered another flat, so the five men agreed to flag down a

passing motorist in order to steal a replacement car. Raymond waved down a

family of four; the others then emerged from hiding and captured the family at

gunpoint. Raymond and Donald drove the family into the desert in the Tisons‘

original car with the others following. Ricky and the cellmate removed the

family‘s possessions from their car and transferred the Tison gang‘s possessions to

it; Gary and his cellmate then killed all four family members. When the Tisons

were later apprehended at a roadblock, Donald was killed and Gary escaped into

the desert, only to die of exposure. (Id. at pp. 139–141.) Ricky and Raymond

Tison and the cellmate were tried and sentenced to death. The trial court made

findings that Ricky and Raymond‘s role in the series of crimes was ― ‗very

substantial‘ ‖ and they could have foreseen their actions would ― ‗create a grave

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risk of . . . death.‘ ‖ (Id. at p. 142.) The Arizona Supreme Court denied relief.

(Id. at pp. 143–145.)

The United States Supreme Court granted Ricky‘s and Raymond‘s petitions

to consider the application of Enmund to these facts. The court began by

discussing at length and endorsing Enmund‘s holding that the Eighth Amendment

limits the ability of states to impose death for ―felony murder simpliciter.‖ (Tison

v. Arizona, supra, 481 U.S. at p. 147; see id. at pp. 146–150.) Specifically, Tison

described the range of felony-murder participants as a spectrum. At one extreme

were people like ―Enmund himself: the minor actor in an armed robbery, not on

the scene, who neither intended to kill nor was found to have had any culpable

mental state.‖ (Id. at p. 149.) At the other extreme were actual killers and those

who attempted or intended to kill. (Id. at p. 150.) Under Enmund, Tison held,

death was disproportional and impermissible for those at the former pole, but

permissible for those at the latter. (Ibid.) The Supreme Court then addressed the

gray area in between, the proportionality of capital punishment for felony-murder

participants who, like the two surviving Tison brothers, fell ―into neither of these

neat categories.‖ (Ibid.) Here, the court announced, ―major participation in the

felony committed, combined with reckless indifference to human life, is sufficient

to satisfy the Enmund culpability requirement.‖ (Id. at p. 158.) This is the

language the electorate codified in section 190.2(d).

The Supreme Court has yet to revisit Tison and Enmund. The only

guidance its subsequent cases offer comes from Kennedy v. Louisiana (2008) 554

U.S. 407, 421, where the court in dicta characterized the governing standard as

permitting the death penalty for nonkillers whose ―involvement in the events

leading up to the murders was active, recklessly indifferent, and substantial.‖ Nor,

save once, have this state‘s courts elaborated on the test for death eligibility for

nonkillers. The exception is People v. Proby (1998) 60 Cal.App.4th 922, which

10

concluded ―major participation‖ should be understood as the phrase is used in

common parlance, as including those whose involvement is ― ‗notable or

conspicuous in effect or scope‘ ‖ and who are ― ‗one of the larger or more

important members . . . of a . . . group.‘ ‖ (Id. at pp. 933–934, quoting Webster‘s

3d New Internat. Dict. (3d ed. 1971) p. 1363; see People v. Smith (2005) 135

Cal.App.4th 914, 928 [adopting Proby‘s gloss]; People v. Hodgson (2003) 111

Cal.App.4th 566, 579–580 [same].)

We agree with People v. Proby, supra, 60 Cal.App.4th 922 that there is no

reason to think either the United States Supreme Court in Tison or the drafters of

Proposition 115 had in mind a specialized or technical meaning for ―major

participant.‖ Proby‘s gloss on that phrase and the Kennedy v. Louisiana dictum,

that a defendant must have been actively and substantially involved in the events

leading up to a murder (Kennedy v. Louisiana, supra, 554 U.S. at p. 421), are of

some help. But rephrasing Tison‘s dictates in essentially synonymous words takes

us only so far. To gain a deeper understanding of the governing test and offer

further guidance, we examine more closely Tison and Enmund.

The two cases embrace the United States Supreme Court‘s long-standing

recognition that, in capital cases above all, punishment must accord with

individual culpability. States may ―make aiders and abettors equally responsible,

as a matter of law, with principals, or . . . enact felony-murder statutes‖ that make

individual involvement in an underlying crime enough to hold a nonkiller liable

for first degree murder. (Lockett v. Ohio (1978) 438 U.S. 586, 602.) However,

―the definition of crimes generally has not been thought automatically to dictate

what should be the proper penalty.‖ (Ibid.) When it comes time to determine a

proportionate punishment, the Constitution requires more: ―an individualized

decision is essential in capital cases.‖ (Lockett, at p. 605; see Tison v. Arizona,

supra, 481 U.S. at p. 149 [a state must ―inquire into the relevant facets of ‗the

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character and record of the individual offender‘ ‖]; id. at p. 156 [noting the

―individualized determination of culpability required in capital cases‖]; Enmund v.

Florida, supra, 458 U.S. at p. 798 [―The focus must be on his culpability, not on

that of those who committed the robbery and shot the victims‖].) A sentencing

body must examine the defendant‘s personal role in the crimes leading to the

victim‘s death and weigh the defendant‘s individual responsibility for the loss of

life, not just his or her vicarious responsibility for the underlying crime. (See

Tison, at p. 158 [evaluating ―[t]he petitioners‘ own personal involvement in the

crimes‖]; Enmund, at p. 798 [though Earl Enmund participated in an armed

robbery, he ―did not kill or intend to kill and thus his culpability is plainly

different from that of the robbers who killed‖].)

With respect to the mental aspect of culpability, Tison, and in turn section

190.2(d), look to whether a defendant has ― ‗knowingly engag[ed] in criminal

activities known to carry a grave risk of death.‘ ‖ (People v. Estrada, supra, 11

Cal.4th at p. 577, quoting Tison v. Arizona, supra, 481 U.S. at p. 157.) The

defendant must be aware of and willingly involved in the violent manner in which

the particular offense is committed, demonstrating reckless indifference to the

significant risk of death his or her actions create. There is an ―apparent consensus

that substantial participation in a violent felony under circumstances likely to

result in the loss of innocent human life may justify the death penalty‖ (Tison, at

p. 154); accordingly, the death penalty may be applied to those who, like the

Tisons, ―subjectively appreciated that their acts were likely to result in the taking

of innocent life‖ (id. at p. 152).

With respect to conduct, Tison and Enmund establish that a defendant‘s

personal involvement must be substantial, greater than the actions of an ordinary

aider and abettor to an ordinary felony murder such as Earl Enmund. The

defendants‘ actions in Tison v. Arizona, supra, 481 U.S. 137 and Enmund v.

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Florida, supra, 458 U.S. 782 represent points on a continuum. (Tison, at pp. 149–

151.) Somewhere between them, at conduct less egregious than the Tisons‘ but

more culpable than Earl Enmund‘s, lies the constitutional minimum for death

eligibility. Because the Supreme Court found it unnecessary to ―precisely

delineate the particular types of conduct and states of mind warranting imposition

of the death penalty‖ (id. at p. 158), it follows that a jury presented with this

question must consider the totality of the circumstances. The specific facts of the

two cases illuminate the sort of considerations that may be relevant to a jury‘s

deliberations.

In Tison, Ricky and Raymond Tison helped plan and carry out the escape of

two convicted murderers from prison—one of whom, Gary Tison, was serving a

life sentence for killing a guard in the course of a previous escape. (Tison v.

Arizona, supra, 481 U.S. at p. 139.) This entailed their bringing a cache of

weapons to prison, arming both murderers, and holding at gunpoint guards and

visitors alike. (Id. at p. 151.) There was no similar evidence that Enmund‘s

confederates were killers, or that he knew they were. Raymond Tison ―[b]y his

own admission . . . was prepared to kill in furtherance of the prison break.‖ (Ibid.)

There was no similar admission from Enmund. As part of the ongoing escape,

Ricky and Raymond Tison later participated in stopping and capturing an

―innocent family whose fate was then entrusted to the known killers [they] had

previously armed.‖ (Ibid.) They robbed the family and held them at gunpoint

while the two murderers deliberated whether the family should live or die, then

stood by while all four members were shot. (Ibid.) Enmund, in contrast, was

absent from the scene, with no opportunity to contribute to or prevent the actual

killing.

The Tisons did not assist in a garden-variety armed robbery, where death

might be possible but not probable, but were substantially involved in a course of

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conduct that could be found to entail a likelihood of death; distinguishing Enmund,

the Supreme Court said: ―Far from merely sitting in a car away from the actual

scene of the murders acting as the getaway driver to a robbery, each petitioner was

actively involved in every element of the kidnaping-robbery and was physically

present during the entire sequence of criminal activity culminating in the murder

of the Lyons family and the subsequent flight.‖ (Tison v. Arizona, supra, 481 U.S.

at p. 158.) Unlike the Tisons, Earl Enmund was just a getaway driver, sitting in a

car away from the murders. Execution of minor, absent participants like Enmund

remained disproportionate and constitutionally intolerable. (Id. at p. 149.)

Among those factors that distinguish the Tisons from Enmund, and thus

may play a role in determining whether a defendant‘s culpability is sufficient to

make him or her death eligible, are these: 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 inactions play a particular role in the

death?5 What did the defendant do after lethal force was used? No one of these

5 In cases where lethal force is not part of the agreed-upon plan, absence

from the scene may significantly diminish culpability for death. (See Enmund v.

Florida, supra, 458 U.S. at p. 795 [identifying a national consensus against death

for nonkillers who did not plot murder and were ―not present when the killing took

place‖].) Those not present have no opportunity to dissuade the actual killer, nor

to aid the victims, and thus no opportunity to prevent the loss of life. Nor,

conversely, are they in a position to take steps that directly and immediately lead

to death, as with the Tisons‘ capturing and standing guard over the victims. (See

Tison v. Arizona, supra, 481 U.S. at p. 158 [emphasizing the Tisons‘ physical

presence and active involvement in every step].)

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considerations is necessary, nor is any one of them necessarily sufficient. All may

be weighed in determining the ultimate question, whether the defendant‘s

participation ―in criminal activities known to carry a grave risk of death‖ (Tison v.

Arizona, supra, 481 U.S. at p. 157) was sufficiently significant to be considered

―major‖ (id. at p. 152; see Kennedy v. Louisiana, supra, 554 U.S. at p. 421.)

The People propose we treat as a major participant potentially eligible for

death anyone ―whose conduct involves the intentional assumption of some

responsibility for the completion of the crime regardless of whether the crime is

ultimately successful. As such, participation in planning with the intent of

facilitating the commission of the crime, or participating in conduct integral to or

for the purpose of facilitating the commission of the crime, constitutes major

participation.‖ This test cannot be reconciled with the holdings of Tison and

Enmund. Requiring only ―the intentional assumption of some responsibility for

the completion of the crime‖ would sweep in essentially every felony murderer—

indeed, even Earl Enmund himself—whether an actual killer or not. Doing so

would violate the Supreme Court‘s requirement that each felony murderer‘s

culpability be considered individually and disregard the court‘s corresponding

recognition that, for many nonkillers, death is disproportionate to that individual

culpability and thus unconstitutional.

Finally, we note the standards we articulate, although developed in death

penalty cases, apply equally to cases like this one involving statutory eligibility

under section 190.2(d) for life imprisonment without parole. As a purely

constitutional matter, nothing would foreclose California from imposing life

imprisonment without parole sentences on felony murderers with Matthews‘s

degree of culpability. (See People v. Estrada, supra, 11 Cal.4th at p. 575

[― ‗reckless indifference to human life‘ ‖ is not constitutionally required for a life

imprisonment without parole sentence]; People v. Johnson (2010) 183

15

Cal.App.4th 253, 296–299 [rejecting an 8th Amend. challenge to a life

imprisonment without parole sentence for a robbery-murder getaway driver].)

Section 190.2(d) does not, however, extend eligibility for life imprisonment

without parole to every defendant exhibiting the constitutionally minimum degree

of culpability for that sentence. Instead, by importing the Tison-Enmund standard,

it permits such a sentence only for those felons who constitutionally could also be

subjected to the more severe punishment, death. As a matter of state statute, then,

the Tison-Enmund standard is ―applicable to all allegations of a felony-murder

special circumstance, regardless of whether the People seek and exact the death

penalty or a sentence of life without parole.‖ (Estrada, at p. 576.) Accordingly,

the considerations that informed the Supreme Court‘s distinctions between

differing levels of culpability in Tison v. Arizona, supra, 481 U.S. 137 should

guide juries faced with making those same distinctions under section 190.2(d).

III. Application

When reviewing a challenge to the sufficiency of the evidence, we ask

― ‗whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.‘ ‖ (People v. Edwards (2013) 57 Cal.4th

658, 715, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) Because the

sufficiency of the evidence is ultimately a legal question, we must examine the

record independently for ― ‗substantial evidence—that is, evidence which is

reasonable, credible, and of solid value‘ ‖ that would support a finding beyond a

reasonable doubt. (People v. Boyce (2014) 59 Cal.4th 672, 691.) These same

standards apply to challenges to the evidence underlying a true finding on a

special circumstance. (Edwards, at p. 715.)

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A. Major participation

Considering the record in the light most favorable to the judgment, there

was substantial evidence to show Matthews acted as the getaway driver for an

armed robbery. The jury could infer from Matthews‘s movements that he dropped

his confederates off near the dispensary. Matthews then waited three blocks away

for approximately 45 minutes. Moments after the shooting and a call from Banks,

he drove toward the dispensary. A witness saw Daniels flag Matthews down. He

slowed, Daniels and Gardiner got in, and he drove them away.

The evidence in the record places Matthews at the Enmund pole of the

Tison-Enmund spectrum. Indeed, as Matthews argues, his conduct is virtually

indistinguishable from Earl Enmund‘s. No evidence was introduced establishing

Matthews‘s role, if any, in planning the robbery.6 No evidence was introduced

establishing Matthews‘s role, if any, in procuring weapons. Matthews and two

confederates—though not the shooter—were gang members, but, in contrast to the

convicted murderers the Tison brothers chose to free and arm, no evidence was

introduced that Matthews, Gardiner or Daniels had themselves previously

committed murder, attempted murder, or any other violent crime. The crime itself

was an armed robbery; Enmund and Tison together demonstrate that participation

in an armed robbery, without more, does not involve ―engaging in criminal

6 The People argue Matthews had a greater role than Enmund in planning

their respective armed robberies, but the prosecution introduced no evidence that

would support this. At most, there was evidence Matthews participated in the

robbery, from which a jury might reasonably infer he had some role in planning it,

but the nature of that role is, on the record before us, a matter of pure conjecture.

In Enmund, in contrast, the trial court made express findings that Earl Enmund had

planned the robbery. (See Enmund v. Florida, supra, 458 U.S. at pp. 803–806,

809 (dis. opn. of O‘Connor, J.); Enmund v. State, supra, 399 So.2d at pp. 1365,

1372–1373.)

17

activities known to carry a grave risk of death.‖ (Tison v. Arizona, supra, 481

U.S. at p. 157.) During the robbery and murder, Matthews was absent from the

scene, sitting in a car and waiting. There was no evidence he saw or heard the

shooting, that he could have seen or heard the shooting, or that he had any

immediate role in instigating it or could have prevented it.

On this record, Matthews was, in short, no more than a getaway driver,

guilty like Earl Enmund of ―felony murder simpliciter‖ (Tison v. Arizona, supra,

481 U.S. at p. 147; see Enmund v. Florida, supra, 458 U.S. at pp. 784–787;

Enmund v. State, supra, 399 So.2d at p. 1370) but nothing greater. As such, he is

ineligible for the death penalty under Tison and Enmund. Because section

190.2(d) incorporates the Tison-Enmund standard, if the evidence was insufficient

to make Matthews death eligible under these cases, the evidence was also

insufficient to find the special circumstance true and Matthews eligible for life

imprisonment without parole under state law.

The Court of Appeal dismissed the relevance of comparisons to the facts of

Enmund v. Florida, supra, 458 U.S. 782, treating Enmund as applicable only to

the constitutionality of certain death sentences and immaterial to the present

inquiry, whether as a statutory matter the section 190.2(d) special circumstance

applies to Matthews. The People also argue Enmund has no bearing, noting that

section 190.2(d)‘s statutory language is drawn from Tison, not Enmund. But

Enmund cannot be dismissed so easily. As we have explained, Tison did not

overrule Enmund, but rather elaborated on the constitutional limits to punishment

of felony-murder accomplices first announced there. (Tison v. Arizona, supra, 481

U.S. at p. 158 [defining what conduct would ―satisfy the Enmund culpability

requirement‖]; see Graham v. Florida (2010) 560 U.S. 48, 69 [treating Tison and

Enmund as of equal continuing vitality in marking the bounds of the 8th Amend.];

Kennedy v. Louisiana, supra, 554 U.S. at p. 421 [same]; Ring v. Arizona (2002)

18

536 U.S. 584, 594 [Tison represents a qualification of the rule in Enmund].)

Under the spectrum of culpable felony-murderer behavior Tison constructs, Earl

Enmund‘s conduct marks one end. (Tison, at pp. 149–150.) The facts and holding

of Enmund are thus essential to an understanding of that spectrum and where each

new case should be deemed to fall on it. Enmund is inseparable from Tison.

In the alternative, the People offer the prosecutor‘s closing argument below

to illustrate how Matthews‘s conduct can be distinguished from Earl Enmund‘s.

Tellingly, however, the closing argument offers no distinction; were one simply to

replace the names of those involved in this case with those involved in Enmund v.

Florida, supra, 458 U.S. 782, it would apply equally—save for the fact Enmund,

unlike Matthews, contributed to not one but two homicides: ―And what ‗major

participant‘ means is this: what was his involvement, how important was Mr.

[Enmund‘s] involvement in the crime, and with that you look at his actions. As

I‘ve stated multiple times, Mr. [Enmund] is the one that gets everyone to this

location. Mr. [Enmund] is the guy that drives the getaway vehicle. Mr. [Enmund]

is the one that‘s supposed to pick up everybody at this location. [¶] You know,

short of Mr. [Armstrong] who actually killed Mr. [and Mrs. Kersey], next most

involved person had to be Mr. [Enmund], right? Mr. [Enmund] is the one that

started all this process. He gets everyone to the location, waits around, and his job

was to get everyone to safety afterwards. [¶] I submit to you, ladies and

gentlemen, that Mr. [Enmund] was a major participant. Without him, you don‘t

even have an attempted robbery. Without him, you don‘t have a burglary. And

honestly, without him taking Mr. [Armstrong] to this location, you wouldn‘t have

the murder of [the Kerseys].‖

The People also highlight the evidence of cellphone contact between

Matthews and Banks, the shooter. The record shows a series of nine cellphone

calls between Matthews and Banks, each lasting less than one minute, and as

19

many as six of which may simply have gone to voicemail. No evidence about the

content of the calls was introduced, and the bare evidence of the call records tells

us nothing additional about Matthews‘s awareness of or involvement in the

shooting. Banks and Matthews apparently spoke either hours before or shortly

after the killing, and GPS evidence established Matthews was away from the scene

until after the victim was dead. Earl Enmund, too, no doubt found out after the

robbery that his coconspirators had killed two people, yet he still drove them away

to safety and apparently directed disposal of the murder weapons. (Enmund v.

State, supra, 399 So.2d at p. 1366.) Matthews, like Enmund and unlike the

Tisons, did not see the shooting happen, did not have reason to know it was going

to happen, and could not do anything to stop the shooting or render assistance.

The call records do nothing to increase Matthews‘s role beyond that of Enmund‘s;

instead, they show only that technology has changed.

The other facts the People cite—that Matthews drove near the crime scene,

sat in a parked car blocks away waiting for a signal to pick up his confederates,

and afterward drove toward the dispensary and picked up two accomplices—show

simply that he acted as a getaway driver. Earl Enmund, too, was a getaway driver

who may have been involved in planning an armed robbery, but as a matter of

precedent Enmund is the quintessential ―minor actor.‖ (Tison v. Arizona, supra,

481 U.S. at p. 149.) It follows that Matthews is as well and, as a matter of law,

cannot qualify as a major participant under section 190.2(d).

B. Reckless Indifference to Human Life

Consideration of Matthews‘s mens rea also leads us to conclude he is

legally ineligible for a sentence of life imprisonment without parole. Reckless

indifference to human life ―requires the defendant be ‗subjectively aware that his

or her participation in the felony involved a grave risk of death.‘ ‖ (People v. Mil,

supra, 53 Cal.4th at p. 417, quoting People v. Estrada, supra, 11 Cal.4th at

20

p. 577.) There was evidence from which the jury could infer Matthews knew he

was participating in an armed robbery. But nothing at trial supported the

conclusion beyond a reasonable doubt that Matthews knew his own actions would

involve a grave risk of death. There was no evidence Matthews intended to kill or,

unlike the Tisons, knowingly conspired with accomplices known to have killed

before. Instead, as in Enmund, Banks‘s killing of Gonzalez was apparently a

spontaneous response to armed resistance from the victim.

The Court of Appeal, in a line of reasoning endorsed by the People,

concluded that ―[w]ith advance knowledge of the planned robbery and burglary,

Matthews had to be aware of the risk of resistance and the extreme likelihood that

death could result.‖7 According to the appellate court, Matthews‘s confederates

surely ―anticipated as much because they were armed,‖ and although Matthews

was not armed, the jury could readily infer Matthews knew his confederates were.

The problem with the sufficiency of such evidence to prove reckless

indifference to human life is that Enmund and Tison deem identical evidence

inadequate. In Enmund, the Supreme Court rejected exactly this argument, that

the risk of death inherent in an armed robbery justifies the death penalty simply for

knowingly participating in such a crime. ―It would be very different if the

likelihood of a killing in the course of a robbery were so substantial that one

should share the blame for the killing if he somehow participated in the felony.

But competent observers have concluded that there is no basis in experience for

the notion that death so frequently occurs in the course of a felony for which

killing is not an essential ingredient that the death penalty should be considered as

7 The prosecutor‘s closing argument rested on the same theory: Matthews

knowingly participated in a robbery, and the fact armed robberies carry with them

―a possibility someone may get killed‖ is common knowledge.

21

a justifiable deterrent to the felony itself.‖ (Enmund v. Florida, supra, 458 U.S. at

p. 799.)

In Tison as well, the Arizona Supreme Court had employed the same logic

as the Court of Appeal here, reasoning that the constitutional culpability

requirement was satisfied by the fact a participant in an armed robbery could

anticipate lethal force might be used. The United States Supreme Court was

unpersuaded, observing Earl Enmund himself might well have anticipated the use

of lethal force as a possibility, for ―the possibility of bloodshed is inherent in the

commission of any violent felony and this possibility is generally foreseeable and

foreseen; it is one principal reason that felons arm themselves.‖ (Tison v. Arizona,

supra, 481 U.S. at p. 151.) This understanding of the requisite culpability

―amounts to little more than a restatement of the felony-murder rule itself‖ (ibid.),

rendering death eligible every felony-murder accomplice and running afoul of the

Enmund court‘s holding that death is a disproportionate penalty for participation in

―felony murder simpliciter.‖ (Tison, at p. 148; id. at pp. 146–149.) Awareness of

no more than the foreseeable risk of death inherent in any armed crime is

insufficient; only knowingly creating a ―grave risk of death‖ satisfies the

constitutional minimum. (Id. at p. 157.)

The People attempt to distinguish Tison‘s discussion of the issue by noting

it arose as part of the high court‘s rejection of the Arizona Supreme Court‘s

equating knowledge of the foreseeability of possible death with the intent to kill

called for by Enmund. However true, this point does not sap the discussion of its

force. While Tison slightly revised the mental culpability necessary for death

eligibility, from intent to kill to reckless indifference toward human life, it

simultaneously concluded knowledge of the possible risk of death inherent in

certain felonies (like armed robbery) would not satisfy this lesser standard either.

The Tison court distinguished the defendants before it from ―the category of

22

felony murderers for whom Enmund explicitly held the death penalty

disproportional,‖ because for the Tisons, unlike for Earl Enmund and his ilk, ―the

record would support a finding of the culpable mental state of reckless

indifference to human life.‖ (Tison v. Arizona, supra, 481 U.S. at p. 151.) The

Supreme Court thus made clear felony murderers like Enmund, who simply had

awareness their confederates were armed and armed robberies carried a risk of

death, lack the requisite reckless indifference to human life. The Court of

Appeal‘s equating Matthews‘s similar awareness with reckless indifference to

human life cannot be squared with Enmund and Tison.8

Alternatively, the People highlight the United States Supreme Court‘s

recognition that ―there are some felonies as to which one could properly conclude

that any major participant necessarily exhibits reckless indifference to the value of

8 In People v. Lopez (2011) 198 Cal.App.4th 1106, the defendant was

sentenced to life imprisonment without parole after she lured a man into an alley

under the pretext of engaging in prostitution, whereupon he was robbed and

murdered by her accomplice. The Court of Appeal opined that evidence the

defendant knew her accomplice ―had a gun shows that she acted with reckless

indifference to the life of the man she lured into the alley.‖ (Id. at p. 1116.) That

the defendant may have acted with the requisite reckless indifference was

supported by other evidence as well, and we need not resolve whether Lopez was

correctly decided based on that other evidence. However, we disapprove People

v. Lopez, supra, 198 Cal.App.4th 1106 to the extent it holds the knowledge one‘s

accomplice is armed can, by itself, establish reckless indifference to human life

under section 190.2(d).

In People v. Hodgson, supra, 111 Cal.App.4th 566, the Court of Appeal

upheld a robbery-murder special circumstance, reasoning in part that the defendant

―had to be aware use of a gun to effect the robbery presented a grave risk of

death.‖ (Id. at p. 580.) As with Lopez, there was other evidence to support the

special circumstance, but we disapprove People v. Hodgson, supra, 111

Cal.App.4th 566 to the extent it may be read to hold awareness a robbery

accomplice is armed, without more, establishes the necessary subjective awareness

of a grave risk of death.

23

human life.‖ (Tison v. Arizona, supra, 481 U.S. at p. 158, fn. 12.) They argue

each crime listed in section 189 qualifies and thus Matthews, because he

participated in two such crimes, robbery and burglary, has automatically exhibited

reckless indifference to human life.

Section 189 codifies the first degree felony-murder rule (People v. Harris

(2008) 43 Cal.4th 1269, 1294); participation in the crimes it lists subjects one to

liability for first degree murder. To make participation in such crimes also

sufficient, without more, to establish categorically reckless indifference to human

life would collapse the Tison inquiry into the felony-murder inquiry and treat all

felony murderers as equally culpable and eligible for death. But the central

holding of Enmund, and Tison after it, was that for purposes of the death penalty,

not all felony murderers are equally culpable and eligible for death. The People‘s

position embraces the very punishment—death eligibility for participation in

felony murder simpliciter—the Supreme Court has declared unconstitutional. (See

Tison v. Arizona, supra, 481 U.S. at pp. 147–150; Enmund v. Florida, supra, 458

U.S. at p. 797.)

That one may infer the felonies listed in section 189 are those the

Legislature views as ―inherently dangerous‖ (People v. Cavitt (2004) 33 Cal.4th

187, 197) does not change the analysis. Whether a category of crimes is

sufficiently dangerous to warrant felony-murder treatment, and whether an

individual participant has acted with reckless indifference to human life, are

different inquiries. Section 189 cannot be read as attempting to conflate them, and

in any event under Enmund and Tison it would be impermissible for a state

legislature to declare all participation in broad classes of felony murders, such as

burglaries or robberies, punishable by death without further inquiry into each

24

individual defendant‘s mental state. (See Tison v. Arizona, supra, 481 U.S. at

p. 149; Enmund v. Florida, supra, 458 U.S. at p. 798.)9

Finally, the People note two case-specific features of the armed robbery

here that they suggest demonstrate reckless indifference to human life. First,

Matthews, Daniels, and Gardiner—but not Banks—were members of the same

gang. An expert testified their gang included 750 members, divided into cliques.

In a single line of testimony, the expert identified the primary activities of the

entire gang as ―narcotics sales, burglaries, robberies, shootings, attempted

murders, murders, gun—carrying guns.‖ No evidence indicated Matthews or his

two confederates had ever participated in shootings, murder, or attempted murder,

or even that any member of their clique had.10

This evidence does not materially distinguish this case from Enmund or

bring it any closer to Tison. The evidence connecting Daniels and Gardiner

personally to past acts of violence was so attenuated as to be essentially non-

existent; as to Banks, the actual shooter, it was entirely nonexistent. The contrast

with Tison, where the Tison brothers freed and armed Gary Tison, who had killed

before in the course of a previous prison escape, is stark.

9 Tison does not specify those few felonies for which any major participation

would ―necessarily exhibit[] reckless indifference to the value of human life.‖

(Tison v. Arizona, supra, 481 U.S. at p. 158, fn. 12.) One could surmise a partial

list of crimes the United States Supreme Court might agree on—say, the

manufacture and planting of a live bomb. But we need not speculate. Even the

Tisons‘ prison break of two convicted murderers was remanded, rather than

treated as per se demonstrating the requisite reckless indifference. Plainly, armed

robbery does not qualify. (See id. at pp. 147–150.)

10 The only specific gang crimes the expert testified to were two firearm

possession convictions committed by other members uninvolved in the instant

robbery. (See § 186.22, subd. (e)(31) & (32).)

25

Second, the dispensary had a sally port, security cameras, and a guard. To

get through the sally port, the robbers had a medical marijuana authorization; to

deal with the guard and others, they brought zip ties to subdue employees.

Gonzalez‘s coworkers testified they believed he was an unarmed guard, and there

was no evidence Matthews believed otherwise, or even that he knew a guard

would be present. Because nothing in the record reflects that Matthews knew

there would be a likelihood of resistance and the need to meet that resistance with

lethal force, the evidence failed to show Matthews ―knowingly engag[ed] in

criminal activities known to carry a grave risk of death.‖ (Tison v. Arizona, supra,

481 U.S. at p. 157.)

The insufficiency of these details to distinguish Enmund aside, a larger

consideration is at issue here. The actions of Earl Enmund, the Tison brothers,

and countless other nonkiller felony murderers fall on a continuum, a spectrum of

culpability. To ask whether there is any variation at all between Matthews‘s

conduct and Enmund‘s is certainly relevant, but in doing so we do not simply

assume Enmund‘s conduct represents a constitutional maximum, i.e., the most

culpable one can be and yet still be constitutionally ineligible for death, such that

any variation would move one into the death-eligible zone. Nationally, thousands

of armed robberies occur each year; per Enmund, only roughly 1 in 200 results in

death. (Enmund v. Florida, supra, 458 U.S. at p. 800, fn. 24.) If Enmund‘s

actions represented the outer limit of conduct immune from death eligibility, Tison

would have been an easy case. It was not. We do not view Enmund as defining a

maximum for ineligibility for the death penalty, any more than we view the

egregious actions of the Tison brothers as a constitutional minimum level of

culpability for death eligibility.

26

Because on the evidence in the record no rational trier of fact could have

found Matthews‘ conduct supported a felony-murder special circumstance, the

jury‘s special-circumstance true finding cannot stand.

27

DISPOSITION

We reverse the Court of Appeal‘s judgment as to defendant Lovie Troy

Matthews and remand for further proceedings not inconsistent with this opinion.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

28

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Banks

__________________________________________________________________________________

Unpublished Opinion NP opn. filed 8/29/13 – 2d Dist., Div. 2

Original Appeal

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S213819

Date Filed: July 9, 2015

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Gail Ruderman Feuer

__________________________________________________________________________________

Counsel:

Sharon M. Jones, under appointment by the Supreme Court, for Defendant and Appellant Leon Banks

Danalynn Pritz, under appointment by the Supreme Court, for Defendant and Appellant Lovie Troy

Matthews.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,

Assistant Attorney General, Marc A. Kohm, Peggy Z. Huang, Keith H. Borjon and Paul M. Roadarmel, Jr.,

Deputy Attorneys General, for Plaintiff and Respondent.

1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Danalynn Pritz

3625 East Thousand Oaks Boulevard, Suite 182

Westlake Village, CA 91362

(844) 805-3262

Paul M. Roadarmel, Jr.

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 897-2396

2