Filed 11/27/19
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                       DIVISION EIGHT


In re                                 B292582

KAHEAL JEVON PARRISH                  (Los Angeles County
                                      Super. Ct. No. BA260528)
        On Habeas Corpus.


     ORIGINAL PROCEEDING. Petition for writ of habeas
corpus. Kathleen Kennedy, Judge. Petition denied.
     James M. Crawford, under appointment by the Court of
Appeal, for Petitioner.
     Xavier Becerra, Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Zee Rodriguez, Supervising
Deputy Attorney General, Michael C. Keller, Deputy Attorney
General, for Respondent.
                       ____________________
       This habeas corpus petition requires us to assay culpability
for a 2004 murder. The felony murder doctrine can saddle a
person with a murder conviction even when that person was not
the main killer. Here, for instance, Kahael Jevon Parrish was
one of three who, in 2004, went to rob a market. Parrish had no
gun, but both his partners did. One fired a deadly shot into a
customer’s head. Parrish pulled no trigger, but a jury convicted
Parrish of felony murder. The trial court imposed life in prison
without parole. Was that unconstitutionally harsh? We conclude
it was not. Parrish was a major participant in the robbery and
showed reckless indifference to human life, so we deny his habeas
corpus petition. Code references are to the Penal Code.
                                    I
       We review the record to see if rational jurors could have
found the elements of the special circumstances allegation
beyond a reasonable doubt. We view evidence in a light favorable
to the prosecution. (People v. Clark (2016) 63 Cal.4th 522, 610
(Clark).) In this light, the facts are as follows.
       Three men planned to rob a market. The three were
Parrish, Earl Childs, and Zack Gaines. Parrish and Gaines
reconnoitered the market the day before the robbery. (People v.
Parrish (2007) 152 Cal.App.4th 263, 267, 276 & fn. 2 (Parrish).)
       The deadly day was February 4, 2004. Parrish drove
Childs and Gaines to the market. Parrish had given Gaines a
.380 handgun to use, and Parrish knew Gaines carried it.
Parrish also knew Childs had a gun. Parrish and Childs entered
the market and walked around. Gaines came in to complain they
were taking too long. Childs drew his gun, announced the
robbery, and told Parrish to jump over a counter to search an
employee for weapons. Parrish did that. Parrish saw the store




                                2
owner pushing an alarm and said “she is calling the police.”
Parrish was leaping the counter heading for the exit when he
heard a gunshot and saw a flame. Video recorded Childs
shooting a customer in the head as Parrish jumped the counter.
Parrish, Childs, and Gaines got in Parrish’s car. Parrish drove
them away. (Parrish, supra, 152 Cal.App.4th at p. 268.)
       Parrish’s trial defense was duress. (Parrish, supra, 152
Cal.App.4th at p. 277.) Parrish testified he joined the Rolling 30s
Harlem Crips gang before age 13. Gaines too was a Rolling 30s
member. Parrish said fellow gang members had beat him in the
past for cooperating with law enforcement. Parrish claimed he
abandoned the gang, but gang members coerced him, on pain of
death, into participating in this robbery. (Id. at p. 279.)
       The prosecution responded that Parrish’s robbery motive
was not to avoid injury but to renew and to improve his position
in the gang after having cooperated with law enforcement.
(Parrish, supra, 152 Cal.App.4th at p. 279.)
       The jury convicted Parrish on all counts, evidently rejecting
his duress defense and accepting the prosecution’s theory. The
special circumstance allegation was the murder was committed
in the course of a robbery. The jury found this allegation true.
       We affirmed Parrish’s conviction on appeal. (Parrish,
supra, 152 Cal.App.4th at p. 280.) The Supreme Court denied
review on September 25, 2007.
       In 2015 and 2016, the California Supreme Court decided
People v. Banks (2015) 61 Cal.4th 788 (Banks) and Clark. We
return to these cases shortly.
       After Banks and Clark, Parrish filed a habeas corpus
petition challenging his convictions of attempted robbery and
first degree murder. The Superior Court denied the petition




                                 3
because evidence “overwhelmingly supported” Parrish’s role as a
major robbery participant. “The jury did not believe” Parrish’s
claim that gang members who had become his enemies coerced
his actions. Parrish raised the same claims in this court, which
we rejected.
       On June 12, 2019, the California Supreme Court issued an
order to show cause returnable in this court as to why Parrish is
not entitled to relief under Banks and Clark.
       The decisions in Banks and Clark summarized the
constitutional issue and the constitutional result, as follows.
       The constitutional issue arises when there is a murder and
a defendant is involved in some way but perhaps only
peripherally and is not the chief agent of death. Thus a
defendant with relatively low culpability might get an extremely
grave sentence signaling extremely high culpability. Federal
constitutional law bars cruel and unusual mismatches of
culpability and consequence. (See Enmund v. Florida (1982) 458
U.S. 782; Tison v. Arizona (1987) 481 U.S. 137.) The problem is
to define how much culpability is required before a state may
impose very grave sentences on relatively less culpable actors.
       The Banks and Clark decisions formulated the rule to
which we now hew.
       In Banks, the California Supreme Court found it was not
enough for the defendant merely to be a minor participant who
never knew his actions would involve a grave risk of death.
(Banks, supra, 61 Cal.4th at p. 807.)
       In Clark, the court reached a similar result. The defendant
was a mastermind who sought to minimize the risk of violence at
his planned robbery. (See Clark, supra, 63 Cal.4th at pp. 621–
623.) This mastermind timed the robbery for closing time and




                                4
arranged for his robbery team to interact with victims only
briefly. (Id. at p. 620.) He also tried to minimize or eliminate
bullets for the one gun at the scene. (Id. at pp. 612–613, 618–
619, and 621–622.) Although one of his team began shooting
anyway, the mastermind did not know this shooter had a
propensity for violence. (Id. at p. 621.)
       In essence, Clark held it unconstitutional to impose a death
sentence on a safety-conscious mastermind just because his
minion unexpectedly killed someone during the robbery.
       Clark laid down two requirements. Parrish satisfies both.
       The first requirement is the defendant — here, Parrish —
was a “major participant” in the underlying felony, which here
was robbery. (Clark, supra, 63 Cal.4th at p. 611.) Parrish
satisfied this requirement by actively participating in every
stage: supplying a gun, casing the target, entering the store to
rob it, going to search the employee, announcing the police alert,
and driving the robbery team to and from the market.
       The second requirement is more complex: the required
mental state, or mens rea. The Clark decision went to
considerable lengths to make precise its analysis of the required
mental state. It mentioned the phrase “specific intent” only once.
(See Clark, supra, 63 Cal.4th at p. 615.) Following the lead of the
Supreme Court of the United States, Clark relied heavily on the
Model Penal Code. (See id. at pp. 616–617 & fn. 73, 622.)
       The second requirement thus demands proof Parrish acted
with reckless disregard for human life. In particular, the Model
Penal Code asks whether Parrish “consciously disregard[ed] a
substantial and unjustifiable risk” to human life. (Clark, supra,
63 Cal.4th at p. 617.)




                                 5
       Parrish’s actions satisfy this second requirement. The
Clark decision structured this analysis in five steps.
       FIRST, was Parrish ignorant of the guns at the robbery?
(See Clark, supra, 63 Cal.4th at p. 618.) No. Parrish supplied
one of the guns. He knew about the other. Two guns for three
robbers is more than minimal. The more guns, the greater the
chance of gunfire and death. Parrish knew this risk and took it.
       SECOND, was Parrish physically absent from the robbery
scene? (Clark, supra, 63 Cal.4th at p. 619.) No. Parrish was
there start to finish. He had an “opportunity to act as a
restraining influence on murderous cohorts.” (Ibid.) He likewise
had a chance to help the victim. (Ibid.) But Parrish passed up
these opportunities. That shows reckless disregard for life.
       THIRD, did Parrish take steps to limit the duration and
extent of interaction with innocents so as to minimize risk? No.
The robbery was not planned for a low-traffic moment, like
closing time. (Cf. Clark, supra, 63 Cal.4th at p. 620 [“defendant
planned the robbery for after closing time, when most of the store
employees were gone”].) This conduct displays a reckless
indifference to risk.
       FOURTH, did Parrish have reason to trust his cohorts to be
peaceable? No. One was a fellow longtime Crips gang member.
The other, according to Parrish’s own testimony, was threatening
to kill Parrish himself. One cannot equate this situation with the
facts in Clark, where the defendant had no reason to suspect his
robbery team was prone to violence. (Clark, supra, 63 Cal.4th at
p. 621.)
       FIFTH, did Parrish make efforts to minimize the risks of
violence during the robbery? (Clark, supra, 63 Cal.4th at pp.
621–623.) No. Unlike the defendant in Clark, Parrish took no




                                6
actions “with an eye to minimizing the possibilities for violence.”
(Id. at p. 623.) In this analysis the Clark decision again cited the
Model Penal Code’s definition of recklessness, now to emphasize
it contains both a subjective and an objective element. (Id. at pp.
622–623.) Neither element helps Parrish. Subjectively, Parrish
was indifferent to the risks he was creating. Objectively, he took
no steps to reduce risk of harm or to alleviate actual harm. He
did not pause, for instance, to see if the victim was dead.

                            DISPOSITION
      The petition is denied.

                                           WILEY, J.

We concur:

             BIGELOW, P. J.



             GRIMES, J.




                                 7
