        IN THE SUPREME COURT OF
               CALIFORNIA

                  In re WILLIE SCOGGINS
                      on Habeas Corpus.

                           S253155

                   Third Appellate District
                          C084358

             Sacramento County Superior Court
                        08F04643



                        June 25, 2020

Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar,
Kruger, and Groban concurred.
                      In re SCOGGINS
                           S253155


                Opinion of the Court by Liu, J.


      In 2008, petitioner Willie Scoggins planned an unarmed
assault and robbery that resulted in a death. In 2011, a jury
convicted Scoggins of first degree murder (Pen. Code, § 187,
subd. (a)) and attempted robbery (id., §§ 211, 664). It also
found true the special circumstance allegation that the murder
was committed during an attempted robbery (id., § 190.2,
subd. (a)(17)) and the enhancement that a principal was armed
during the commission of the offenses (id., § 12022,
subd. (a)(1)). Scoggins was sentenced to life imprisonment
without the possibility of parole. After Scoggins’s conviction
became final, we decided People v. Banks (2015) 61 Cal.4th 788
(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark),
which clarified the meaning of the special circumstances
statute. We granted review to determine whether Scoggins’s
conduct supported a robbery-murder special-circumstance
finding under Banks and Clark. We hold that Scoggins did not
act with reckless indifference to human life and thus the
special circumstance finding must be reversed.
                              I.
      In June 2008, Scoggins purchased what he believed to be
three large flat-panel televisions from Samuel Wilson for $300
each.    When Scoggins opened the television boxes, he
discovered that they contained packaging paper and wood.
Scoggins was angry that he had been swindled by Wilson.

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      Scoggins’s girlfriend, Shaneil Cooks, and her friend,
Jennifer Kane, met Wilson a few days later by coincidence.
After Cooks and Kane told Scoggins about the encounter,
Scoggins quickly devised a plan to exact revenge against
Wilson: Cooks and Kane would pretend to be interested in
purchasing a television and meet up with Wilson; two of
Scoggins’s close friends, Randall Powell and James Howard,
would hide inside Cooks’s van during the meeting; and then
Powell and Howard would jump out, “beat the shit” out of
Wilson, and get Scoggins’s money back. The plan did not call
for Scoggins to be involved in the attack; Scoggins was
concerned that Wilson might recognize him from their earlier
encounter and thought his presence would raise Wilson’s
suspicions. There is no evidence that the plan involved the use
of weapons.
      Soon after, Scoggins and his friends set the plan in
motion. Cooks and Kane pretended that Kane’s mother was
interested in buying a television and arranged a meeting with
Wilson. Later that evening, Cooks, Kane, Powell, and Howard
went to the parking lot of a strip mall to meet Wilson. Shortly
after they arrived, Powell and Howard stepped out of the van
and spoke briefly with Wilson. Then, Powell pulled out a gun
and fired several shots at Wilson. When Wilson ran, Powell
fired a few more shots and killed Wilson. After that, Powell
and Howard got into Cooks’s van, and the van sped away from
the scene. Throughout these events, Scoggins, as planned, was
not present at the crime scene. He exchanged numerous phone
calls with Powell and Howard in the hour leading up to the
shooting and waited at a nearby gas station as the events
unfolded.



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       After the shooting, Scoggins walked over to Wilson and
checked if he was still breathing. At that point, several
bystanders had already gathered around Wilson and had called
the police. After speaking with the bystanders for a while,
Scoggins moved his car and returned to the crime scene. The
police arrived and interviewed Scoggins as a witness. The
officer who interviewed Scoggins described him as cooperative.
       Scoggins’s first trial ended in a mistrial. At the second
trial in 2011, the jury convicted Scoggins of first degree murder
(Pen. Code, § 187, subd. (a)) and attempted robbery (id., §§ 211,
664). The jury also found true the special circumstance that
the murder was committed during an attempted robbery (id.,
§ 190.2, subd. (a)(17)) and the enhancement that a principal
was armed during the commission of the offenses (id., § 12022,
subd. (a)(1)).   The trial court sentenced Scoggins to life
imprisonment without the possibility of parole. The court
stayed the imposition of the sentence as to the attempted
robbery conviction and the firearm enhancement. The Court of
Appeal affirmed the judgment, rejecting Scoggins’s claim that
insufficient evidence supported the robbery-murder special-
circumstance finding.        We denied Scoggins’s petition for
review.
      In 2015 and 2016, Scoggins filed several petitions for writ
of habeas corpus in the trial court and the Court of Appeal,
challenging the sufficiency of evidence supporting the special
circumstance finding. These petitions were denied. In May
2016, Scoggins filed a petition for writ of habeas corpus in this
court, again challenging the special circumstance finding. We
issued an order to show cause, returnable to the Court of
Appeal, as to why Scoggins is not entitled to relief in light of
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522,

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both of which were filed after Scoggins’s conviction became
final.
       The Court of Appeal denied relief in a divided opinion.
The court observed that Banks and Clark clarified the meaning
of the special circumstances statute as intended by the
electorate and that the finality of Scoggins’s conviction does
not bar him from challenging the special circumstance finding
through a petition for habeas corpus. If the undisputed facts
rendered Scoggins ineligible for the special circumstance
finding, the court explained, then the trial court would have
imposed the sentence of life without parole “ ‘in excess of its
jurisdiction’ ” (People v. Mutch (1971) 4 Cal.3d 389, 396
(Mutch)), and Scoggins would be entitled to habeas corpus
relief. (See id. at pp. 395, 396 [where a defendant has been
“convicted under a statute which did not prohibit his acts at
the time he committed them,” “finality for purposes of appeal is
no bar to relief, and . . . habeas corpus or other appropriate
extraordinary remedy will lie to rectify the error”].)
       The court then analyzed whether Scoggins satisfied the
two requirements for the special circumstance: major
participation in the crime and reckless indifference to human
life. (Banks, supra, 61 Cal.4th at p. 798.) The court concluded
that Scoggins was a major participant in the attempted
robbery resulting in Wilson’s death because Scoggins planned
the robbery. The court acknowledged that whether Scoggins
acted with reckless indifference to human life was a “closer
call” but ultimately concluded that the record supported such a
finding. In the court’s view, the evidence showed that Scoggins
knew about Powell’s propensity for violence and that Scoggins
did not take steps to minimize risk of violence during the
robbery. Justice Renner, in a concurring and dissenting

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opinion, agreed that Scoggins was a major participant but
concluded that the evidence did not show that Scoggins
exhibited reckless indifference to human life.
      We granted review.
                                II.
      At the outset, we consider whether Scoggins’s claim is
procedurally barred. On direct appeal, Scoggins challenged, as
he does here, the sufficiency of the evidence supporting the
special circumstance finding. Generally, claims that have been
raised and rejected on direct appeal cannot be raised again in a
habeas corpus petition. (In re Waltreus (1965) 62 Cal.2d 218,
225 [“[H]abeas corpus ordinarily cannot serve as a second
appeal.”].) In addition, sufficiency of the evidence claims are
generally not cognizable on habeas corpus. (In re Lindley
(1947) 29 Cal.2d 709, 723.)
      But, as the Court of Appeal recognized, an exception to
these procedural bars applies here. Where a decision clarifies
the kind of conduct proscribed by a statute, a defendant whose
conviction became final before that decision “is entitled to post-
conviction relief upon a showing that his [or her] conduct was
not prohibited by the statute” as construed in the decision.
(Mutch, supra, 4 Cal.3d at p. 392.) “In such circumstances, it is
settled that finality for purposes of appeal is no bar to relief,
and that habeas corpus or other appropriate extraordinary
remedy will lie to rectify the error: ‘Habeas corpus is available
in cases where the court has acted in excess of its jurisdiction.
[Citations.] For purposes of this writ as well as prohibition or
certiorari, the term “jurisdiction” is not limited to its
fundamental meaning, and in such proceedings judicial acts
may be restrained or annulled if determined to be in excess of


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                   Opinion of the Court by Liu, J.


the court’s powers as defined by constitutional provision,
statute, or rules developed by courts.       [Citations.]  In
accordance with these principles a defendant is entitled to
habeas corpus if there is no material dispute as to the facts
relating to his conviction and if it appears that the statute
under which he was convicted did not prohibit his conduct.’ ”
(Id. at p. 396.)
       In Mutch, the defendant’s conviction under the
aggravated kidnapping statute became final before this court
issued a decision clarifying the type of conduct prohibited by
that statute.     (Mutch, supra, 4 Cal.3d at p. 392.)       We
determined that there was no material dispute as to the facts
relating to his conviction and that his conduct did not
constitute aggravated kidnapping under the proper
construction of the aggravated kidnapping statute. (Id. at
pp. 397–399; see id. at p. 399 [“on the undisputed facts
defendant was convicted of kidnap[ping] under a statute which
did not prohibit his conduct at the time” he committed the
acts].) Thus, the defendant was convicted in excess of the trial
court’s jurisdiction and was entitled to post-conviction relief.
(Id. at p. 399.)
      In this case, Banks and Clark clarified the meaning of
the special circumstances statute after Scoggins’s conviction
became final. There is no material dispute as to the facts
relating to Scoggins’s conviction. The question is whether on
this record Scoggins’s conduct is proscribed by the special
circumstances statute, as construed in Banks and Clark. If it
is not, then the trial court acted in excess of its jurisdiction
when it sentenced Scoggins to life imprisonment without the
possibility of parole, and habeas corpus relief would be
available.

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       Penal Code section 190.2, subdivision (d), enacted by
initiative in 1990, provides that “every person, not the actual
killer, who, with reckless indifference to human life and as a
major participant” aids or abets an enumerated felony,
including attempted robbery, that results in death may be
convicted of special circumstance murder and sentenced to
death or to life imprisonment without the possibility of parole.
The statute, by its text, imposes an actus reus requirement,
major participation in the enumerated felony, and a mens rea
requirement, reckless indifference to human life. (Banks,
supra, 61 Cal.4th at p. 798.)
      In Banks, we explained that the special circumstances
statute incorporated the holding of Tison v. Arizona (1987) 481
U.S. 137 (Tison). (Banks, supra, 61 Cal.4th at p. 798.) In
Tison, the high court addressed the level of culpability required
to impose the death penalty on an accomplice to felony murder.
(Tison, at pp. 145–146.) It held that “major participation in
the felony committed, combined with reckless indifference to
human life,” is sufficient to justify the death penalty. (Id. at
p. 158.)
      Because the language of the special circumstances
statute is directly borrowed from that holding, it is instructive
to consider the high court’s analysis in Tison and a related
decision, Enmund v. Florida (1982) 458 U.S. 782 (Enmund).
In Enmund, the high court ruled that it is unconstitutional to
impose the death penalty on a getaway driver for an armed
robbery that results in death. (Id. at p. 788.) The court noted
that Enmund was a minor participant in the crime and did not
intend to kill or have any other culpable mental state. (Id. at
pp. 791, 801; accord, Tison, supra, 481 U.S. at p. 149.)



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      By contrast, the court upheld the death sentences
imposed on the defendants in Tison, who were major
participants in the felonies resulting in death and acted with
reckless indifference to human life. (Tison, supra, 481 U.S. at
p. 158.) The defendants in that case were brothers who helped
their father and his cellmate, both convicted murderers, escape
from prison. (Id. at p. 139.) The brothers armed the two
prisoners, locked up the prison guards, and helped the
prisoners escape. (Ibid.) A few days later, the group got a flat
tire and flagged down a passing car for help. (Id. at pp. 139–
140.) They kidnapped the family that was in the car and
robbed them. (Id. at p. 140.) The two brothers then guarded
the family while their father considered what to do next.
(Ibid.) Eventually, the father shot all of the family members,
and the group of perpetrators left the victims to die without
rendering aid. (Id. at p. 141.)
      In Banks, we applied the high court’s analysis in Tison
and Enmund and concluded that the evidence was insufficient
to support a robbery-murder special-circumstance finding
under section 190.2. (Banks, supra, 61 Cal.4th at p. 794.) We
explained that when analyzing a defendant’s culpability under
the special circumstances statute, it is important to consider
where the defendant’s conduct falls on the “spectrum of
culpability” that Enmund and Tison established. (Id. at
p. 811.) On one end of the spectrum is Enmund, “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.” (Tison, supra, 481 U.S. at p. 149.) At the other end is
“the felony murderer who actually killed, attempted to kill, or
intended to kill.” (Id. at p. 150.) Because the defendant in
Banks, like Enmund, was a mere getaway driver in an armed


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robbery, we concluded that the evidence was insufficient to
show that he was a major participant or acted with reckless
indifference to human life. (Banks, at pp. 805, 807.) We
therefore reversed the special circumstance finding. (Id. at
p. 811.)
      In Clark, we similarly held that insufficient evidence
supported a robbery-murder special-circumstance finding for a
defendant who planned a robbery that resulted in a death.
(Clark, supra, 63 Cal.4th at pp. 610–611.) The defendant in
that case planned and organized the robbery of a computer
store. (Id. at p. 536.) The defendant planned for the robbery to
take place after the store closed, when there would be few
people in the store, and to involve only one gun without any
bullets in it. (Id. at pp. 621–622.) But an employee’s mother
unexpectedly entered the store during the robbery, and the
defendant’s accomplice shot her with a bullet he had loaded
into the gun. (Id. at p. 537.) Soon after the shooting, the
defendant fled the scene and abandoned his accomplice. (Id. at
p. 620.) We concluded that although the “defendant had a
prominent, if not the most prominent, role in planning the
criminal enterprise that led to the death” (id. at p. 613), the
record did not establish that he exhibited reckless indifference
to human life (id. at p. 623). We therefore vacated the special
circumstance finding. (Ibid.)
                                III.
      Banks and Clark clarified the meaning of the special
circumstances statute after Scoggins’s conviction became final.
Thus, Scoggins is entitled to habeas corpus relief “ ‘if there is
no material dispute as to the facts relating to his conviction
and if it appears that the statute under which he was convicted


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did not prohibit his conduct.’ ” (Mutch, supra, 4 Cal.3d at
p. 396.) We find no material dispute as to the basic facts of
Scoggins’s participation in the attempted robbery resulting in
Wilson’s death.      The question is whether the special
circumstances statute as construed in Banks and Clark
prohibited Scoggins’s conduct. We conclude on this record that
Scoggins did not exhibit reckless indifference to human life and
thus his conduct was not within the scope of the special
circumstances statute. (Scoggins does not challenge the Court
of Appeal’s determination that he was a major participant in
the crime resulting in Wilson’s death, so we do not address
that question here.)
      Reckless indifference to human life is “implicit in
knowingly engaging in criminal activities known to carry a
grave risk of death.” (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.”    (Ibid.)   Reckless indifference “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, supra, 63
Cal.4th at p. 617.)
      Reckless indifference to human life has a subjective and
an objective element. (Clark, supra, 63 Cal.4th at p. 617.) As
to the subjective element, “[t]he defendant must be 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

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                   Opinion of the Court by Liu, J.


actions create.” (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.’ ” (Clark,
at p. 617, quoting Model Pen. Code, § 2.02, subd. (2)(c).)
“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.
(Banks, at p. 808.) Notably, “the fact a participant [or planner
of] an armed robbery could anticipate lethal force might be
used” is not sufficient to establish reckless indifference to
human life. (Ibid.; see Clark, at p. 623.)
       We analyze the totality of the circumstances to
determine whether Scoggins acted with reckless indifference to
human life. Relevant factors include: Did the defendant use or
know that a gun would be used during the felony? How many
weapons were ultimately used? Was the defendant physically
present at the crime? Did he or she have the opportunity to
restrain the crime or aid the victim? What was the duration of
the interaction between the perpetrators of the felony and the
victims? What was the defendant’s knowledge of his or her
confederate’s propensity for violence or likelihood of using
lethal force? What efforts did the defendant make to minimize
the risks of violence during the felony? (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.’ ” (Id.
at p. 618, quoting Banks, supra, 61 Cal.4th at p. 803.)


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        First, Scoggins did not use a gun, nor did he know that a
gun would be used during the felony. The record shows that
Scoggins’s plan did not involve shooting Wilson. As mentioned,
Scoggins planned for the assault and robbery of Wilson to be
unarmed, and there is no evidence that Scoggins knew that
Powell would use a gun. With respect to this factor, Scoggins
was far less culpable than the defendants in Tison, who
“brought an arsenal of lethal weapons into the Arizona State
Prison” to help their father and his cellmate escape. (Tison,
supra, 481 U.S. at p. 151.) Indeed, Scoggins was less culpable
than the defendant in Clark, who expected his accomplice to
use an unloaded gun to carry out the robbery. (Clark, supra,
63 Cal.4th at p. 613; see id. at p. 618 [“The mere fact of a
defendant’s awareness that a gun will be used in the felony is
not sufficient to establish reckless indifference to human
life.”].)
      Second, “[p]roximity 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 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.)
     The defendants in Tison were physically present during
the entire sequence of events that resulted in the victims’

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deaths. (Tison, supra, 481 U.S. at p. 158.) The Tison brothers
flagged down the car containing the victims, kidnapped and
robbed them, guarded them while their father decided what to
do, and eventually watched their father shoot the victims. (Id.
at pp. 139–141.) During that time, the defendants knew that
their father was debating whether to kill the victims and had
ample opportunity to restrain the crime and aid the victims.
(Id. at p. 140.) Because the defendants did neither, the high
court reasoned, they exhibited reckless indifference to human
life. (Id. at pp. 151–152.)
       Here, by contrast, Scoggins was not physically present at
the crime scene and was not in a position to restrain Powell
once the meeting with Wilson began. Scoggins remained at a
nearby gas station during the course of the crime and did not
arrive at the crime scene until after the shooting occurred.
Moreover, it is not clear whether Scoggins could even see the
confrontation between his accomplices and Wilson from his
position at the gas station. The record contains two pieces of
evidence regarding Scoggins’s location: cell tower data and
Scoggins’s statements to the police. The cell tower data placed
Scoggins within a half-mile radius of the crime scene but did
not provide any information on his exact location. In his
statements to the police, Scoggins denied that he could see the
shooting from his location at the gas station. The evidence at
trial lends some support to his claim. According to eyewitnesses,
Powell and Howard confronted Wilson near Cooks’s van, which
was parked in the lot next to the gas station. Shell casings
recovered after the shooting indicate that Powell was standing on
the side of the van opposite from the gas station when he first
shot Wilson. Thus, the van would have blocked Scoggins’s view of
the confrontation between his accomplices and Wilson, leaving


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him unaware in real time that Powell was deviating from the
original plan. (Clark, supra, 63 Cal.4th at p. 619.)
      The Attorney General contends that Scoggins could have
restrained the crime because he was in constant
communication with Powell and Howard before the shooting
and could have instructed them to avoid using lethal force.
But Scoggins had no reason to give such an instruction; his
plan for Powell and Howard to beat up Wilson did not
contemplate any use of lethal force, and unlike the Tison
brothers, he had no reason to suspect that his accomplices were
armed or planning to kill Wilson. (Post, at pp. 17–20.) In
addition, although Scoggins was in close contact with his
accomplices before the shooting, he lacked control over their
actions once they arrived on the crime scene, especially given
how quickly the shooting occurred.          This distinguishes
Scoggins from the Tison brothers, who were physically present
at the scene where a long sequence of events culminated in
murder. (See Tison, supra, 481 U.S. at pp. 139–141.)
      We emphasize that “physical presence is not invariably a
prerequisite to demonstrating reckless indifference to human
life.” (Clark, supra, 63 Cal.4th at p. 619.) “Where, for
example, a defendant instructs other members of a criminal
gang carrying out carjackings at his behest to shoot any
resisting victims, he need not be present when his
subordinates carry out the instruction in order to be found to
be recklessly indifferent to the lives of the victims.” (Ibid.,
citing People v. Williams (2015) 61 Cal.4th 1244, 1281–1282.)
Especially in light of emerging technologies, a defendant who
plans and directs a murder from afar may be just as culpable
as a defendant who is physically present at the scene of the
crime. But there is no evidence here that Scoggins instructed

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his confederates to kill Wilson under any scenario; as noted,
Scoggins had planned for the beating and robbery to be
unarmed. Nor does the record show that he directed his
accomplices to deviate from the plan once they arrived at the
crime scene.
      A defendant’s actions after the shooting may also bear on
the defendant’s mental state. (Clark, supra, 63 Cal.4th at
p. 619.) For example, the high court took into account the
Tison brothers’ failure to render aid to the victims after the
shooting when it concluded that they acted with reckless
indifference to human life. (Tison, supra, 481 U.S. at pp. 151–
152.) But we have said 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. In
Clark, the defendant fled the scene and abandoned his
accomplice immediately after the shooting. (Clark, at p. 620.)
We said that the defendant’s actions could have suggested
either that the defendant rejected his accomplice’s actions in
committing the shooting or that he wanted to flee the scene as
quickly as possible to avoid arrest. (Ibid.) Ultimately, we
concluded that the “[d]efendant’s absence from the scene of the
killing and the ambiguous circumstances surrounding his
hasty departure make it difficult to infer his frame of mind
concerning [the victim’s] death.” (Ibid.)
      Here, Scoggins walked over to the crime scene and
checked if Wilson was still breathing after the shooting. At
that point, other bystanders had already called the police, so
there was no occasion for Scoggins to seek further assistance.
After the police arrived, Scoggins gave a statement as a
witness. There is conflicting evidence as to exactly when
Scoggins arrived at the crime scene. Some accounts suggested

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that his arrival was delayed, occurring 20 to 30 minutes after
the shooting. Other accounts suggested that Scoggins arrived
soon after the shooting, perhaps two to five minutes later.
Relying on the latter version of events, the Attorney General
argues that Scoggins’s quick arrival indicates that he had
anticipated the shooting and was thus unfazed by it. If
Scoggins had not anticipated the outcome, the Attorney
General contends, “he would have panicked and left.” The
Attorney General also argues that Scoggins continued to stay
until the police arrived in order to gather information from
other bystanders and deflect suspicion from himself.
      In this case, as in Clark, the ambiguity inherent in the
petitioner’s actions after the shooting “make[s] it difficult to
infer his frame of mind concerning [the victim’s] death.”
(Clark, supra, 63 Cal.4th at p. 620.) As the Attorney General
asserts, Scoggins’s calm behavior after the shooting might
indicate that he had anticipated the use of lethal force and was
thus not entirely shocked by the deadly turn of events.
Alternatively, Scoggins’s actions might indicate that he in fact
intended to check on Wilson and render aid. At the very least,
his behavior could suggest that he had not planned for his
accomplices to kill Wilson; that is, he might have stayed at the
crime scene precisely because he did not think he was culpable
for Wilson’s death. Overall, Scoggins’s actions after the
shooting do not weigh substantially in favor of a finding of
reckless indifference to human life.
      Third, the duration of the interaction between the
perpetrators and the victim in this case was very limited.
Courts have considered “whether a murder came at the end of
a prolonged period of restraint of the victims by defendant” in
analyzing the defendant’s culpability.       (Clark, supra, 63

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Cal.4th at p. 620.) For example, the defendants in Tison
kidnapped and guarded the victims at gunpoint while their
father decided whether to kill the victims. (See Tison, supra,
481 U.S. at p. 151.) Because prolonged restraint of the victims
provides “ ‘a greater window of opportunity for violence’
[citation], possibly culminating in murder,” it can indicate that
the defendant exhibited reckless indifference to human life.
(Clark, at p. 620.)
      In this case, eyewitnesses testified that Powell and
Wilson had only a brief conversation before Powell pulled out a
gun and shot Wilson. The witnesses estimated that the entire
interaction lasted between a few seconds and three to five
minutes. Thus, Wilson was not restrained for a prolonged
period, and this factor does not weigh in favor of finding that
Scoggins exhibited reckless indifference to human life.
      Fourth, there is no evidence that Scoggins knew Powell
or Howard was likely to use lethal force. A defendant’s
knowledge of a confederate’s likelihood of using lethal force,
which may be evident before or during the felony, is significant
to the analysis of the defendant’s mental state. (Clark, supra,
63 Cal.4th at p. 621.) For example, the Tison brothers knew
they were helping two convicted murderers escape from prison,
one of whom had killed a prison guard during an earlier
escape. (Tison, supra, 481 U.S. at p. 151.) In addition, after
the group kidnapped the victims, the brothers heard that their
father was “ ‘thinking about’ ” killing the victims. (Id. at
p. 140.) The Tison brothers thus had advance knowledge that
lethal force might be used and “subjectively appreciated that
their acts were likely to result in the taking of innocent life.”
(Id. at p. 152.)



                                 17
                         In re SCOGGINS
                   Opinion of the Court by Liu, J.


      In this case, there is affirmative evidence that Scoggins
did not plan for his accomplices to kill Wilson. At trial, the key
prosecution witness testified that Scoggins “was not part of any
plan to kill [Wilson].” The prosecutor essentially conceded as
much to the jury: During closing argument, the prosecutor
said there was no “proof that Scoggins and the group conspired
to murder Wilson” and no “evidence of intent to kill by
Scoggins.”
      The Court of Appeal concluded that Scoggins had some
knowledge that Powell was likely to use lethal force. It pointed
out that during one of Scoggins’s police interviews, he claimed
he did not know Powell was the shooter but said that if Powell
did shoot Wilson, “his hot head got him in trouble.” Because
Scoggins and Powell were close friends, the court explained,
“the jury could have reasonably concluded he was in a position
to know Powell was prone to quickly become angry or was
easily provoked to violence.” The court also said that because
Scoggins’s plan called for Powell and Howard to “beat the shit”
out of Wilson, “using a hothead for that purpose does make a
resulting murder more likely than using someone with a more
even disposition.”      The Attorney General echoes those
assertions as to Powell and argues that Scoggins knew Howard
was likely to use lethal force as well. The Attorney General
notes that Scoggins was also close friends with Howard and
that Scoggins had said Howard was not one to be “punk[ed]”
and would “have [Scoggins’s back] through whatever.”
      We conclude that this evidence does not show that
Scoggins knew Powell or Howard was likely to kill Wilson. As
Justice Renner observed in his concurring and dissenting
opinion, “the fact that after the crime was committed
[Scoggins] said, if Powell did shoot Wilson, ‘his hot head got

                                 18
                         In re SCOGGINS
                   Opinion of the Court by Liu, J.


him in trouble’ is interesting, but this after-the-fact
explanation for Powell’s behavior is insufficient to support a
conclusion that defendant knew before the felony that Powell
was likely to inflict either a deadly beating or carry and use a
gun.” Similarly, Scoggins’s comment after the shooting that
Howard would “have [Scoggins’s back] through whatever” and
was not one to be “punk[ed]” is insufficient to show that
Scoggins knew before the shooting that Howard was likely to
use lethal force.
       Even if Scoggins knew that Powell and Howard were
prone to some degree of violence, and even though the planned
assault of Wilson necessarily contemplated the use of violence,
the evidence does not support a finding that Scoggins acted
with reckless indifference to human life.             As noted,
“[a]wareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient”; reckless
indifference to human life requires “knowingly creating a
‘grave risk of death.’ ” (Banks, supra, 61 Cal.4th at p. 808,
italics added.) The degree of risk to human life is crucial to the
analysis. We have said that any person who plans or
participates in an armed robbery can be said to anticipate that
lethal violence might be used, given that “roughly 1 in 200
[armed robberies] results in death.” (Id. at p. 811.) But that
fact, without more, does not establish reckless indifference to
human life. (Id. at p. 808; see Clark, supra, 63 Cal.4th at
p. 623 [finding insufficient evidence of reckless indifference to
life where “there appears to be nothing in the plan that one can
point to that elevated the risk to human life beyond those risks
inherent in any armed robbery”].) Here, Scoggins planned an
unarmed robbery and assault. That the planned beating never
occurred and Scoggins never got his money back shows his


                                 19
                         In re SCOGGINS
                   Opinion of the Court by Liu, J.


accomplices’ deviation from the original plan. The record does
not show that Scoggins knew his accomplices were likely to
deviate from the plan and use lethal force. We agree with
Justice Renner that the evidence in this case “does not suggest
an elevated risk to human life beyond those risks inherent in
an unarmed beating and robbery.”
       Fifth, a defendant’s efforts to minimize the risk of
violence in the commission of a felony is relevant to assessing
reckless indifference to human life. (Clark, supra, 63 Cal.4th
at p. 622.) In Clark, we found significant the fact that the
defendant arranged for the robbery to take place after business
hours, when few employees would be present, and planned for
the robbery to involve only one unloaded gun. (Id. at pp. 621–
622.) But we also noted that the existence of efforts to
minimize violence does not necessarily foreclose a finding of
reckless indifference to human life.         (Id. at p. 622 [“a
defendant’s good faith but unreasonable belief that he or she
was not posing a risk to human life in pursuing the felony does
not suffice to foreclose a determination of reckless indifference
to human life”].) For example, the Tison brothers made an
agreement with their father that no one would get hurt during
the prison escape and expressed surprise and regret when
their father killed the victims. (Tison, supra, 481 U.S. at
p. 166 (dis. opn. of Brennan, J.).) Despite the brothers’
agreement, an objective evaluation of the circumstances
suggests that the prison escape was likely to pose serious risks
of violence. (Clark, at pp. 622–623.)
      The Court of Appeal concluded, and the Attorney General
argues, that unlike the defendant in Clark, Scoggins made no
efforts to minimize the risk of violence. They note that
Scoggins instructed Powell and Howard to launch a surprise,

                                 20
                          In re SCOGGINS
                    Opinion of the Court by Liu, J.


two-on-one attack on Wilson and to “beat the shit out of him.”
In their view, Scoggins, instead of minimizing the risk of
violence, assured that the robbery would include violence. But,
as Justice Renner explained, “Scoggins’s plan included
violence, certainly, but the need to minimize the risk of
violence when planning an unarmed beating is less pressing
than the need to minimize the risk of violence when planning
an armed robbery. The record does not contain any indication
the defendant planned a beating involving the use of weapons.
This fact is, by itself, a significant step towards minimizing the
likelihood that the plan would result in a ‘grave risk of death.’ ”
In addition, Scoggins agreed to have the confrontation take
place in a public parking lot during the daytime, when the
possible presence of witnesses might reasonably be thought to
keep his accomplices within the bounds of the plan. We do not
suggest that planning an unarmed robbery or a robbery
involving the use of non-lethal weapons can never, under any
scenario, show reckless indifference to human life. But under
the circumstances here, this factor does not weigh in favor of
finding that Scoggins acted with reckless indifference to
human life.
      Determining a defendant’s culpability under the special
circumstances statute requires a fact-intensive, individualized
inquiry. (See Enmund, supra, 458 U.S. at p. 798 [when
analyzing culpability, courts must “focus on ‘relevant facets of
the character and record of the individual offender’ ”].) In this
case, Scoggins planned an unarmed assault and robbery, and
his accomplices deviated from that plan and shot the victim
instead. The evidence does not show that Scoggins knew his
accomplices were likely to use lethal force. On the facts here,



                                  21
                         In re SCOGGINS
                   Opinion of the Court by Liu, J.


we hold that Scoggins did not “knowingly creat[e] a ‘grave risk
of death.’ ” (Banks, supra, 61 Cal.4th at p. 808.)
                        CONCLUSION
    We reverse the judgment of the Court of Appeal and
remand for further proceedings consistent with this opinion.


                                             LIU, J.


We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.




                                 22
        See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Scoggins
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 12/17/18 – 3d Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________

Opinion No. S253155
Date Filed: June 25, 2020
__________________________________________________________________________________

Court: Superior
County: Sacramento
Judge: David F. De Alba

__________________________________________________________________________________

Counsel:

Victor J. Morse, under appointment by the Supreme Court, for Petitioner Willie Scoggins.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell,
Assistant Attorney General, Daniel B. Bernstein, Rachelle A. Newcomb and Tia M. Coronado, Deputy
Attorneys General, for Respondent the People.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Victor J. Morse
3145 Geary Blvd., PMB #232
San Francisco, CA 94118-3316
(415) 387-5828

Tia Coronado
Deputy Attorney General
1300 I St., Suite 125
Sacramento, CA 94244-2550
(916) 210-7690
