Filed 8/25/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION FIVE


In re TYRONE A. MILLER                    B278902

                                          (Los Angeles County
       on Habeas Corpus.                  Super. Ct. No. BA226937)




      ORIGINAL PROCEEDINGS; petition for writ of habeas
corpus. Norman P. Tarle, Judge. Petition granted.
      Leslie Conrad, under appointment by the Court of Appeal,
for Petitioner.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy
Attorney General, Allison H. Chung, Deputy Attorney General,
for Respondent.
       In August 2002, a jury convicted petitioner Tyrone A.
Miller (defendant) of the first degree felony murder of Rene
Franco (Franco) (Pen. Code, § 187, subd. (a))1 and the second
degree robbery of Ana Saravia (Saravia) (§ 211). Defendant was
not the person who shot Franco, nor was he present at the scene
when the shooting occurred; instead, he was convicted of murder
for aiding and abetting an associate who shot Franco after
snatching Saravia’s purse. The jury found the killing occurred in
the commission of a robbery within the meaning of section 190.2,
subdivision (a)(17)(A)—a “special circumstance” that required a
sentence of life in prison without the possibility of parole (§ 190.2,
subd. (d)). Years later, our Supreme Court decided People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark), which discuss when section 190.2
authorizes a special circumstance life without parole sentence for
a felony-murder defendant convicted as an aider and abettor. We
consider whether Banks and Clark, which explain what it means
for an aiding and abetting defendant to be a “major participant”
who acted with a “reckless indifference to human life,” entitle
defendant to a writ of habeas corpus ordering resentencing
because the special circumstance finding cannot stand.

                       I. BACKGROUND
       On May 26, 2000, defendant, Derrick Patton (Patton), and
Melvin Tate (Tate)—who was 17 years old at the time—met at
Tate’s house where they discussed defendant’s plan to commit a
“follow-home robbery.” Defendant, Patton, and Tate were all


1
     Undesignated statutory references that follow are to the
Penal Code.



                                  2
members of the 4-Deuce Crips street gang and had committed
follow-home robberies with one another, and with others, in the
past.
       The robberies were typically conducted as follows: A
“spotter” would go into a bank, locate a person withdrawing a
large amount of cash, and identify that person for the others
involved in committing the robbery. The “driver” would tail the
victim to his or her destination, and the “getter” would take the
money. According to Tate, who testified as a witness for the
prosecution at trial, they did not always carry a gun during
follow-home robberies; it depended on the age, size, and sex of the
victim, as well as whether the victim was alone.
       Tate estimated he had participated in six prior robberies
with Patton and seven or eight with defendant. Tate recalled, in
particular, two prior follow-home robberies he committed with
defendant. In one, defendant served as the spotter and Tate
carried a fake gun. In the other, the victim was a woman and
defendant’s role was not specified. As for robberies he committed
with Patton, Tate recalled only one instance involving a gun.
Patton was carrying the gun in his pocket during the robbery.
When the victim grabbed onto him during a scuffle, the gun went
off, shooting Patton in the arm.
       On the date of Franco’s murder, defendant was the spotter,
Patton the driver, and Tate the getter. Defendant entered a bank
with his young daughter while Patton and Tate remained in
Patton’s car across the street. Saravia and Franco were inside
the bank at the time, and Saravia withdrew $7,500 she planned
to use to buy a car. Defendant exited the bank after Saravia and
Franco and instructed Patton and Tate to “follow the blue van.”
He told them Saravia had “a lot of money” in her purse.



                                3
      Saravia and Franco drove to an automobile dealership and
parked about half a block from its entrance. Patton parked his
car in the dealership’s driveway. He retrieved a gun from the
driver’s side door panel and tossed it to Tate, saying, “[m]ake
sure you get the purse.”
      Saravia was “short” and “kind of heavyset.” Franco was a
“big guy” but “older” and “walked like he had a limp.” As Franco
and Saravia walked past Tate, he grabbed Saravia’s purse.
Saravia fell to the ground, and Tate told her not to get up. When
Franco moved towards Tate, Tate shot him in the chest. Franco,
despite being shot, managed to get back in his van, but he was
unable to drive on account of his wound. He died before he could
be treated at a hospital.
      Tate jumped back into Patton’s car, and they went to
defendant’s house to divide the money. Tate received $500 of the
$7,500.
      Police connected Tate to the scene of Franco’s murder with
DNA evidence found during their investigation. Tate pled guilty
to one count of first degree murder and agreed to testify against
defendant and Patton in the expectation he would receive a
prison sentence of 25 years to life (with the possibility of parole)
and the prosecution would drop several robbery charges against
him. When the police arrested Patton, they found a gun in his
car that resembled the gun Tate said he used to kill Franco.
      Defendant and Patton were jointly tried in August 2002.
The jury convicted both men of the first degree murder of Franco
on an aiding and abetting theory, as well as the second degree
robbery of Saravia. The jury found true the section 190.2
robbery-murder special circumstance alleged by the prosecution,
as well as a section 12022.53, subdivision (d) sentence



                                 4
enhancement alleging a principal personally and intentionally
discharged a firearm, causing death. The trial court sentenced
defendant to a prison term of life without the possibility of parole
based on the robbery-murder special circumstance, plus 25 years
to life (with the possibility of parole) pursuant to the section
12022.53, subdivision (d) enhancement. The court stayed
sentences imposed on the robbery conviction and other
enhancements the jury found true.
        Defendant appealed his conviction and argued, among
other things, the evidence was insufficient to support the
robbery-murder special circumstance finding. We affirmed the
judgment in an unpublished opinion. (People v. Patton (Oct. 20,
2003, B163619) [nonpub. opn.].)
        Much later, in September 2016, defendant filed a petition
for a writ of habeas corpus in the superior court, contending our
Supreme Court’s recent decision in Banks, supra, 61 Cal.4th 788
required the court to vacate his sentence of life imprisonment
without parole, which rested on the special circumstance finding.
The court denied his petition. Defendant then filed a pro se
petition for a writ of habeas corpus in this court, again seeking
relief based on Banks. We appointed counsel to represent
defendant, and counsel filed an amended petition on his behalf.
We subsequently ordered the Department of Corrections and
Rehabilitation to show cause why a writ should not issue.

                          II. DISCUSSION
      Defendant contends our Supreme Court’s recent decisions
in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522,
which explain when a felony-murder aider and abettor may be
sentenced to life in prison without the possibility of parole,



                                 5
compel the conclusion that the evidence against him was
insufficient to justify the special circumstance finding. In
response, the Attorney General argues defendant is not entitled
to rely on Banks and Clark for a host of reasons, most of which
are procedural: because claims of insufficient evidence are not
reviewable by way of a habeas corpus petition; because defendant
is procedurally barred from asserting his claim following this
court’s prior rejection of it on direct appeal; because Banks and
Clark should not apply “retroactively”; and, on the merits, the
evidence against him is sufficient to show he was a major
participant who acted with reckless indifference to human life
even on the understanding espoused in Banks and Clark.
       We conclude the Banks and Clark decisions govern the
disposition of defendant’s habeas petition and, further, that the
standards articulated in those decisions entitle him to the relief
he seeks. After reviewing the record of defendant’s conduct
against the requirements for section 190.2, subdivision (d)
discussed in Banks and Clark, we are convinced the evidence
against defendant would not permit a jury to rationally conclude
he exhibited a reckless indifference to human life. Among other
relevant considerations, defendant was not present at the scene
of the crime and there was no evidence he knew lethal force was
appreciably more likely than that inherent in a “garden-variety
armed robbery, where death might be possible but not
probable . . . .” (Banks, supra, 61 Cal.4th at p. 802.)

      A.    The Robbery-Murder Special Circumstance, and the
            Banks and Clark Decisions
      In 1990, state voters passed Proposition 115, which
“revised the scope of capital liability for aiding and abetting



                                6
felony murders by looking to federal constitutional law.” (Banks,
supra, 61 Cal.4th at p. 798.) Section 190.2, subdivision (d)
provides that “every person, not the actual killer, who, with
reckless indifference to human life and as a major participant,
aids, abets, counsels, commands, induces, solicits, requests, or
assists in the commission of a [specified felony, including
robbery,] which results in the death of some person or persons,
and who is found guilty of murder in the first degree therefor,
shall be punished by death or imprisonment in the state prison
for life without the possibility of parole if a[n enumerated] special
circumstance . . . has been found to be true under Section 190.4.”
“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.” (Banks, supra,
at p. 798, fn. omitted.) Participating in a robbery-murder is one
of the special circumstances for which an aider and abettor may
be punished by death or life imprisonment without parole.
(§ 190.2, subd. (a)(17)(A).)

              1.    Banks
       In the 2015 Banks case, our Supreme Court discussed
“under what circumstances an accomplice who lacks the intent to
kill may qualify as a major participant so as to be statutorily
eligible for the death penalty” or life imprisonment without
parole.2 (Banks, supra, 61 Cal.4th at p. 794.)



2
     The Banks court noted that its analysis of section 190.2,
subdivision (d) applied equally to sentences of life imprisonment
without parole. (Banks, supra, 61 Cal.4th at p. 804.)



                                  7
       Before the Supreme Court was the appeal of Lovie Troy
Matthews (Matthews), who served as the getaway driver for an
armed robbery in which a security guard was killed. (Banks,
supra, 61 Cal.4th at p. 794.) Leon Banks (Banks), David
Gardiner (Gardiner), and Brandon Daniels (Daniels) attempted
to rob a medical marijuana dispensary. (Id. at p. 795.) Banks
and at least one of the other men were armed. (Ibid.) When
Banks, Gardiner, and Daniels were fleeing the dispensary, Banks
and a security guard began shooting at each other, and Banks
killed the guard. (Ibid.) Matthews was not present at the scene
of the robbery, but he picked up Daniels and Gardiner a block
away shortly thereafter. (Ibid.)
       Matthews, Daniels, and Gardiner were all members of the
same criminal street gang. (Banks, supra, 61 Cal.4th at p. 796.)
At a joint trial of Matthews and Banks, no evidence was
presented that Matthews, Daniels, or Gardiner had killed in the
past, or that Matthews knew Banks had killed anyone before the
marijuana dispensary robbery when he shot the guard. (Ibid.)
The jury convicted Matthews of first degree murder and found
true the robbery-murder special circumstance, which resulted in
Matthews receiving a prison sentence of life without the
possibility of parole. (Id. at p. 797.)
       To determine whether Matthews’s sentence was permitted
under section 190.2, subdivision (d), our state’s high court looked
to two United States Supreme Court decisions: Tison v. Arizona
(1987) 481 U.S. 137 (Tison), the holding of which was “mirrored”
in the language of section 190.2, subdivision (d) (Banks, supra, 61
Cal.4th at p. 798), and an earlier case, Enmund v. Florida (1982)
458 U.S. 782 (Enmund). Enmund and Tison both addressed the
constitutionality of sentencing a felony-murder defendant to



                                 8
death where the defendant did not actually commit the killing
and there was no proof the defendant specifically intended to kill.
The decisions have come to embody two points on a continuum of
culpability, with the defendant in Enmund presenting an
example of conduct insufficient to permit capital punishment
while the defendants in Tison serve as an example of conduct
plainly sufficient to demonstrate major participation and reckless
disregard for human life, which justifies a sentence of death.
       In Enmund, the defendant was the getaway driver in an
armed robbery in which his associates killed two people. There
was some evidence Enmund planned the robbery (Enmund,
supra, 458 U.S. at p. 803 (dis. opn. of O’Connor, J.)) but no
evidence he was present when the killing occurred (id. at p. 786
(maj. opn. of White, J.)). The high court held sentencing to death
“one such as Enmund who aids and abets a felony in the course of
which a murder is committed by others but who does not himself
kill, attempt to kill, or intend that a killing take place or that
lethal force will be employed” violated the Eighth Amendment.
(Id. at p. 797.) The court emphasized imposing a sentence of
death must be commensurate with the defendant’s individual
culpability, “not on that of those who committed the robbery and
shot the victims . . . .” (Id. at p. 798.) Because “Enmund himself
did not kill or attempt to kill” and the record did “not warrant a
finding that Enmund had any intention of participating in or
facilitating a murder,” his culpability could not be equated with
that of his confederates who actually robbed and killed. (Ibid.)
The high court further observed that the probability a robbery
would result in a killing was not “so substantial that one should
share the blame for the killing if he somehow participated in the
felony.” (Id. at p. 799.)



                                 9
       In Tison, on the other hand, the United States Supreme
Court concluded the defendants, Ricky (Ricky) and Raymond
(Raymond) Tison, could be sentenced to death even though they
did not actually commit the murders in question and did not
specifically intend the victims to die. Ricky and Raymond, along
with another brother and other relatives, planned to break their
father, Gary Tison (Gary), and his cellmate out of prison. (Tison,
supra, 481 U.S. at p. 139.) The sons accomplished the escape by
entering the prison with an ice chest full of guns, arming Gary
and his cellmate, and locking guards and visitors in a closet.
(Ibid.) Both Gary and his cellmate were convicted murderers;
Gary had killed a guard in a previous prison escape. (Ibid.)
       The escape vehicle got a flat tire during the course of their
flight from the prison, and they decided to steal a car. (Tison,
supra, 481 U.S. at pp. 139-140.) Raymond flagged down a
passing vehicle while the others armed themselves and hid. (Id.
at p. 140.) The car was occupied by a married couple, their
toddler, and their teenage niece (hereafter the Lyons family), and
the others in hiding emerged when the car stopped and then
forced the Lyons family into the backseat of their car. (Ibid.)
Raymond drove the escape vehicle into the desert, while Ricky,
Gary, and his cellmate followed in the Lyons family car. (Ibid.)
       Once out in the desert, the Lyons family father pleaded
with the group not to kill them. (Tison, supra, 481 U.S. at p.
140.) Gary, however, was clearly contemplating it. (Ibid.) Ricky
and Raymond went to get some water, and when they returned
and were within sight of the others, they saw Gary and his
cellmate raise their shotguns and shoot the Lyons family. (Id. at
p. 141.) According to Ricky and Raymond, they were surprised by




                                10
the shooting but they did nothing to stop it or to aid the victims.3
(Ibid.)
       The police apprehended the Tisons and Gary’s cellmate
several days later. (Tison, supra, 481 U.S. at p. 141.) Raymond
and Ricky were tried and convicted of the murder of the Lyons
family, plus associated felonies, and sentenced to death. (Ibid.)
       In considering Raymond and Ricky’s challenges to their
capital sentences, the high court relied on and distinguished its
prior decision in Enmund. The court reaffirmed the principle
announced in Enmund that imposing the death sentence on an
aider and abettor who had no intent or purpose that life would be
taken would violate the Eighth and Fourteenth Amendments.
(Tison, supra, 481 U.S. at p. 148.) In addition, mere
foreseeability that a murder might occur in the course of an
armed robbery does not establish a defendant specifically intends
to kill “in the traditional sense” because “[p]articipants in violent
felonies like armed robberies can frequently ‘anticipat[e] that
lethal force . . . might be used’” and that anticipation “amounts to
little more than a restatement of the felony-murder rule itself.”
(Id. at pp. 150-151.) The high court held, however, that even
without a specific intent to kill, an aiding and abetting felony-
murder defendant who exhibited substantial participation in the
felony, combined with a mental state of reckless indifference to
human life, could be sentenced to death. (Id. at pp. 157-158.)
       As it had done in Enmund, the Tison court conducted an
individualized assessment of Raymond and Ricky’s culpability.
In doing so, the court found Raymond and Ricky’s participation in


3
      There was evidence the niece was still alive for a time after
the shooting. (Tison, supra, 481 U.S. at p. 141.)



                                 11
the deaths of the Lyons family to be “anything but minor.”
(Tison, supra, 481 U.S. at p. 152.) The brothers knowingly armed
two convicted murderers, one of whom had killed a guard in a
previous prison escape. (Id. at p. 151.) Raymond admitted he
was prepared to kill during the subsequent escape. (Ibid.)
Raymond lured the Lyons family into the clutches of his armed
confederates, and Ricky guarded them at gunpoint while Gary
considered killing them. (Id. at pp. 140, 151.) Both brothers
watched Gary and his cellmate kill the Lyons family without
attempting to help the victims before, during, or after. (Id. at p.
151.) “Far from merely sitting in a car away from the actual
scene of the murders acting as the getaway driver to a robbery,
[Raymond and Ricky were each] actively involved in every
element of the kidnapping-robbery and [were] physically present
during the entire sequence of criminal activity culminating in the
murder of the Lyons family and the subsequent flight.” (Id. at p.
158.)
       The brothers’ conduct showed their participation in the
crime was “major” and their mental state was “one of reckless
indifference to human life.” (Tison, supra, 481 U.S. at p. 158.)
The high court held that combination of conduct and mental state
was “sufficient to satisfy the Enmund culpability requirement.”
(Ibid.)
       In considering the import of Enmund and Tison, our
Supreme Court in Banks observed that capital-eligible felony-
murder cases require an individualized assessment of “the
defendant’s personal role in the crimes leading to the victim’s
death and . . . the defendant’s individual responsibility for the
loss of life, not just his or her vicarious responsibility for the
underlying crime.” (Banks, supra, 61 Cal.4th at p. 801.) To



                                12
satisfy section 190.2, subdivision (d)’s conduct requirement
(major participation), the 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.”
(Id. at p. 802.) To satisfy the mental state required by section
190.2, subdivision (d) (reckless indifference), the defendant must
have ‘“‘‘knowingly engag[ed] in criminal activities known to carry
a grave risk of death.’” [Citations.] 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.” (Id. at p. 801.)
       To help guide the analysis of whether a defendant can be
found to have been a major participant in a felony murder, the
Banks court listed the following questions designed to
“distinguish the Tisons from Enmund,” noting no individual
factor was necessary nor was any one of them necessarily
sufficient: “What role did the defendant have in planning the
criminal enterprise that led to one or more deaths? What role did
the defendant have in supplying or using lethal weapons? What
awareness did the defendant have of particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at
the scene of the killing, in a position to facilitate or prevent the
actual murder, and did his or her own actions or inaction play a
particular role in the death? What did defendant do after lethal
force was used?” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted;
see also id. at p. 803, fn. 5 [“In cases where lethal force is not part
of the agreed-upon plan, absence from the scene may significantly
diminish culpability for death”].)



                                  13
       Applying the foregoing factors to Matthews’s case, the
Banks court concluded he was not a major participant. There
was no evidence Matthews planned the robbery, obtained the
guns used in its commission, knew his confederates had killed
before, or was present at the scene of the robbery and killing.
(Banks, supra, 61 Cal.4th at p. 805.)
       Our Supreme Court further held Matthews did not exhibit
a reckless indifference to human life. (Banks, supra, 61 Cal.4th
at p. 807.) In the court’s view, Enmund and Tison established
that “participation in an armed robbery, without more, does not
involve ‘engaging in criminal activities known to carry a grave
risk of death.’ [Citation.]” (Id. at p. 805.) Like Enmund,
Matthews was “no more than a getaway driver . . . .” (Ibid.)
There was no evidence Matthews knew the marijuana dispensary
was guarded or that the guard might be armed. (Id. at p. 811.)
He “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.” (Id. at p. 807.) Evidence
Matthews may have known he was taking part in an armed
robbery was insufficient to show he “subjectively” knew “his own
actions would involve a grave risk of death.” (Ibid.)

            2.    Clark
       Our high court built upon its discussion in Banks, with
greater emphasis on the requirements of reckless indifference,
when it decided Clark, supra, 63 Cal.4th 522 the following year.
The defendant, William Clinton Clark (Clark), was convicted of
two murders on an aiding and abetting theory, and the court
sentenced him to death on the basis of five special circumstance
findings, two of which related to the first murder and three to the



                                14
second. (Id. at pp. 534-535.) The Clark court concluded the
burglary-murder and robbery-murder special circumstance
findings that related to the first murder were not supported by
sufficient evidence. (Id. at p. 611.) The facts, in sum, were these.
       Nokkuwa Ervin (Ervin) shot the mother of a store employee
during an attempted robbery of a CompUSA store. (Clark, supra,
63 Cal.4th at p. 535.) Ervin entered the store after closing time
and handcuffed its employees so that his accomplices, including
Clark, could remove computers. (Id. at pp. 536, 613.) While the
nighttime robbery was underway, Ervin was apparently taken by
surprise when Kathy Lee, the mother of one of the employees,
unexpectedly appeared at the store to pick up her son. (Id. at pp.
537, 539.) Ervin shot and killed her with the single bullet loaded
in his revolver. (Id. at p. 537.) Although Clark was not “in the
immediate area where Ervin shot Kathy Lee” (id. at p. 614), he
drove to the store soon after and fled when he saw a woman on
the ground, police cars approaching, and Ervin attempting to
escape (id. at p. 537).
       The Clark court found there was substantial evidence
Clark “was the mastermind who planned and organized the
attempted robbery and who was orchestrating the events at the
scene of the crime.” (Clark, supra, 63 Cal.4th at p. 612.) A
factfinder could infer from the evidence presented that Clark’s
plans called for one of the participants to carry a gun, although
the expectation was that it would be unloaded. (Id. at p. 613.)
There was no evidence, however, regarding Clark’s “awareness of
the past experience or conduct of Ervin, the shooter” or of his
“awareness of the particular dangers posed by the crime, beyond
his concern to schedule the robbery after the store’s closing time.”
(Id. at p. 614.)



                                15
       Our Supreme Court declined to decide whether Clark was a
“major participant” for purposes of section 190.2, subdivision (d).
(Clark, supra, 63 Cal.4th at p. 614.) The court noted it had
previously upheld a finding, in People v. Williams (2015) 61
Cal.4th 1244, 1281, that a defendant was a major participant
despite not being present at the scene of the felony murder where
he was “‘the founder, ringleader, and mastermind behind’ a
criminal gang engaged in carjacking” and where he had
instructed his subordinates “‘that a resisting victim was to be
shot.’” (Ibid.) Thus, Clark’s absence from the scene of the killing
did not necessarily preclude the applicability of section 190.2,
subdivision (d).
       Even though Clark might qualify as a major participant,
the court concluded the jury’s robbery-murder and burglary-
murder findings were not backed by sufficient evidence that
Clark exhibited a reckless indifference to human life. Tison had
“held that the necessary mens rea for death eligibility may be
‘implicit in knowingly engaging in criminal activities known to
carry a grave risk of death.’ [Citation.]” (Clark, supra, 63
Cal.4th at p. 616.) Enmund made clear, however, that a
defendant’s participation in an armed robbery, without more, was
insufficient to show the defendant knew his activities carried a
grave risk of death. (Id. at pp. 617-618.)
       The Clark court recognized there was a “‘significant[ ]
overlap’” in the requirements for the major participant and
reckless indifference elements to section 190.2, subdivision (d).
(Clark, supra, 63 Cal.4th at pp. 614-615, citing Tison, supra, 481
U.S. at p. 153.) To focus the analysis that must be undertaken to
decide the sufficiency of proof of reckless indifference, the Clark
court highlighted a number of factors that warrant consideration:



                                16
the defendant’s knowledge of weapons, and the use and number
of weapons; the defendant’s proximity to the crime and
opportunity to stop the killing or aid the victim; the duration of
the offense conduct, that is, “whether a murder came at the end
of a prolonged period of restraint of the victims by defendant”; the
defendant’s awareness his or her confederate was likely to kill;
and the defendant’s efforts to minimize the possibility of violence
during the crime. (Id. at pp. 618-623.)
       Applying these factors in Clark’s case, the court concluded
there was insufficient evidence Clark was recklessly indifferent
to human life. The crime involved only one gun, holding just one
bullet, and it was carried by Ervin, not Clark. (Clark, supra, 63
Cal.4th at p. 619.) Clark was not physically present when Ervin
killed Kathy Lee and was therefore unable to intervene. (Ibid.)
Nor was there evidence Clark instructed Ervin to kill, or that he
knew Ervin was predisposed to be violent. (Id. at pp. 619, 621.)
Finally, Clark planned for the robbery to take place after the
store closed, and the gun was not supposed to be loaded (id. at pp.
620-622)—two facts that evinced some intent to avoid loss of life
rather than a reckless obliviousness to homicide. In sum, the
court believed there was “nothing in [Clark’s] plan that one can
point to that elevated the risk to human life beyond those risks
inherent in any armed robbery.” (Id. at p. 623.)

            3.    The sufficiency of the evidence to support the
                  jury’s special circumstance finding in this case
      We now apply the principles set forth in Banks, Clark,
Enmund, and Tison to defendant’s claim on habeas. “The
standard of review for a sufficiency of the evidence claim as to a
special circumstance is whether, when evidence that is



                                17
reasonable, credible, and of solid value is viewed ‘in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the allegation beyond a
reasonable doubt.’ [Citations.] The standard is the same under
the state and federal due process clauses. [Citation.] We
presume, in support of the judgment, the existence of every fact
the trier of fact could reasonably deduce from the evidence,
whether direct or circumstantial. [Citation.]” (Clark, supra, 63
Cal.4th at p. 610.)
        Considering the “totality of the circumstances” derived
from the evidence presented in defendant’s trial (Banks, supra,
61 Cal.4th at p. 802), we conclude the robbery-murder special
circumstance finding must be vacated. On the continuum of
culpability for felony-murder defendants, defendant (who was not
the actual killer and was not shown to have harbored an intent to
kill) is decidedly closer to Enmund, Matthews, and Clark than he
is to the Tison brothers.4




4
      When the Banks court considered the “spectrum of
culpability” described in Enmund and Tison, it maintained those
cases did not represent a ceiling or floor for determining when an
aider and abettor felony-murder defendant was eligible for
capital punishment or life imprisonment without parole. (Banks,
supra, 61 Cal.4th at p. 811.) Thus, the fact a particular
defendant may appear more culpable than Enmund does not
automatically make him death eligible. (Ibid.) Nor must a
defendant be as culpable as Raymond or Ricky Tison for section
190.2, subdivision (d) to apply. (Ibid.) The question is one of
degree, and for reasons we explain, the balance for defendant
strongly tips toward the non-liability end of the spectrum.



                                18
       Like Clark, there is evidence defendant was the
“mastermind” behind the robbery that resulted in Franco’s death.
Tate testified the robbery was defendant’s plan, and the jury
could certainly conclude defendant received a larger share of the
robbery proceeds than Tate. At the same time, defendant is
similar to Clark and Enmund (and Matthews) in mitigating
respects: He was not present at the scene of the killing and
therefore had no opportunity to thwart it or assist the victim.
The gun used in the crime was supplied by Patton, not defendant,
and there was no evidence defendant believed Tate or Patton had
killed in the past (unlike the Tison brothers’ knowledge of Gary
Tison and his cellmate’s history).
       But again like Clark, we need not determine whether
defendant’s planning activity sufficed to make him a major
participant under section 190.2, subdivision (d) because we are
convinced the evidence was insufficient to show defendant acted
with a reckless indifference to human life.
       As instructed by Clark, we consider defendant’s knowledge
of weapons used in the crime, and their actual use and number;
defendant’s proximity to the crime and opportunity to stop the
killing or aid Franco; the duration of the crime; defendant’s
knowledge of Tate’s propensity to kill; and defendant’s efforts to
minimize the possibility of violence during the crime.
       Here, there was no evidence defendant knew a gun would
be used in the robbery. The gun Tate used apparently belonged
to Patton, and Tate said he would not have used it had Saravia
exited the van alone. In the previous robberies Tate testified to
committing with defendant, a fake gun had been used in one and
there was no evidence a gun had been used in the other.
Defendant was aware that Patton had carried a gun and



                               19
accidentally shot himself in one of the numerous follow-home
robberies committed in the past, but that says nothing about
defendant’s knowledge Tate would be given (and use) a gun in the
robbery of Saravia. Thus, evidence of defendant’s awareness a
gun would be used was less than that established in Clark, where
the defendant knew an operable firearm would be used, even
though it was supposed to be unloaded.
       Defendant was also absent from the scene of the killing,
and therefore had no opportunity to stop it or to help Franco.
This is another respect in which the evidence of reckless
indifference here was weaker than in Clark (where the defendant
was found ineligible for a special circumstance finding)—Clark
appeared at the scene soon after the killing and was conceivably
in a position to aid the victim.
       The duration of the crime also counsels against finding
defendant exhibited reckless indifference to human life. Tate’s
killing of Franco appeared to be somewhat impulsive, much like
the shootings in Banks and Clark; all three shootings occurred
when the shooter was unexpectedly confronted. In Banks, the
security guard was shot when he was pushing on the front door of
the establishment from the outside in an attempt to keep the
robbers inside. (Banks, supra, 61 Cal.4th at p. 795; see also id. at
p. 807 [observing that the shootings in that case and in Enmund
were both apparently spontaneous, in contrast to the killing of
the Lyons family in Tison].) In Clark, the shooter was surprised
by the arrival of a store employee’s mother. (Clark, supra, 63
Cal.4th at p. 539.) In this case, Tate seemed not to expect Franco
would go after him. Tate testified the shooting was accidental,
and that he fired the gun because he got scared. Tison starkly
contrasts with these three cases. Ricky and Raymond Tison



                                20
intentionally lured the Lyons family into a trap, drove them into
the desert, stood guard as they pleaded for their lives and Gary
contemplated aloud whether to kill them, and watched as the
victims were shot. (Tison, supra, 481 U.S. at pp. 140-141.)
       Even though defendant and Tate belonged to the same
gang and had committed follow-home robberies together in the
past, “[n]o evidence indicated [defendant and Tate] had ever
participated in shootings, murder, or attempted murder . . . .”5
(Banks, supra, 61 Cal.4th at pp. 810-811.) In one of the two prior
robberies Tate described committing with defendant, a fake gun
was used. In the other, the victim was a woman, and evidence
indicated defendant and his associates did not carry guns when
they robbed women. The prosecution’s gang expert testified the
4-Deuce Crips’s primary activities were robberies and narcotics;
murder or attempted murder were not on the expert’s list of
crimes often committed by the gang.6


5
      A witness who personally knew Patton, Tate, and
defendant told police in an interview during the investigation
that she knew Tate “to be a killer” and knew “of him shooting up
places.” At trial, the witness said she did not recall making those
statements and they were untrue in any event. She maintained
she did not know Tate killed or was likely to kill anyone, and
explained she may have told the police otherwise based on
“rumors,” because Tate “st[ood] his own ground,” and because of
“the way he carr[ied] guns and he was so young.” Tate testified
he had never shot a .38 caliber revolver before he shot Franco.
6
       The expert testified the gang resorted to violence to protect
their territory from “rival gangs” and “rival narcotics dealers.”
The victim in this case and in other follow-home robberies were
obviously not rival gang members.



                                 21
      The evidence that Tate regularly used PCP, including on
the day he killed Franco, also cannot support a reasonable
inference defendant knew Tate was likely to kill. For one thing,
and as we have already discussed, there was no evidence
defendant even knew Tate would be armed during the Saravia
robbery. In addition, there was no expert testimony at trial
about the effects of PCP; Tate himself testified the drug made
him “a little slow” or “relaxed,” which would not support an
inference he was more prone to kill.
      Considering all the evidence against defendant, “there
appears to be nothing in the plan that one can point to that
elevated the risk to human life beyond those risks inherent in
any armed robbery.” (Clark, supra, 63 Cal.4th at p. 623;
compare, e.g., In re Loza (2017) 10 Cal.App.5th 38, 50 [even if
defendant believed killer was joking when he said he had shot
someone in the head prior to defendant arming him to commit
robbery, the killer’s statement “at the very least revealed that
[the defendant] with eyes wide open embarked upon an armed
robbery with the type of cohort who callously bragged about
having shot another human being moments earlier”].) Like the
defendant in Banks, defendant here “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.”
(Banks, supra, 61 Cal.4th at p. 807.) He was not “aware of and
willingly involved in the violent manner in which the particular
offense [was] committed . . . .” (Id. at p. 801.) Under Banks and
Clark, the evidence of defendant’s individual culpability was
insufficient to support the special circumstance finding that
resulted in a sentence of life in prison without the possibility of
parole.



                                22
       B.     The Attorney General’s Procedural Arguments
       Although we conclude the evidence cannot support a special
circumstance finding, we must separately assess whether the
Attorney General’s procedural arguments bar relief. The
Attorney General contends defendant’s petition should be denied
because his argument was previously considered and rejected on
direct appeal and because claims of insufficient evidence are not
cognizable in a habeas corpus petition. The Attorney General
further contends Banks and Clark do not apply, as his brief puts
it, “retroactively.” Each of these arguments is unconvincing, for
reasons we now explain.
       We begin with an overarching, dispositive point: Federal
due process guarantees require reversal of the special
circumstance finding in this case regardless of the Attorney
General’s California-law-based procedural arguments. That
much is clear from the United States Supreme Court’s decision in
Fiore v. White (2001) 531 U.S. 225 (Fiore). There, the high court
considered whether Fiore was entitled to habeas corpus relief
when—after his conviction—the Pennsylvania Supreme Court
interpreted the relevant penal statute in a manner that made
clear Fiore’s conduct was not within its scope. (Id. at p. 226.) In
response to a certified question from the high court, the
Pennsylvania Supreme Court stated its interpretation of the
statute “‘did not announce a new rule of law’” but rather “‘merely
clarified the plain language of the statute.’” (Id. at p. 228.) With
that answer in hand, the United States Supreme Court
recognized Fiore’s case “present[ed] no issue of retroactivity” and
instead raised only the question of “whether Pennsylvania can,
consistently with the Federal Due Process Clause, convict Fiore




                                23
for conduct that its criminal statute, as properly interpreted, does
not prohibit.” (Ibid.)
      The high court’s answer, unanimously, was “no.” The court
held “the Due Process Clause of the Fourteenth Amendment
forbids a State to convict a person of a crime without proving the
elements of that crime beyond a reasonable doubt.” (Fiore, supra,
531 U.S. at pp. 228-229 [citing Jackson v. Virginia (1979) 443
U.S. 307 and In re Winship (1970) 397 U.S. 358].) Thus, in
Fiore’s words, “[t]he simple, inevitable conclusion is that Fiore’s
conviction fails to satisfy the Federal Constitution’s demands.”
(Fiore, supra, at p. 229.)
      The parallels to our case are exact, and the result must be
identical. Like the Pennsylvania Supreme Court’s opinion at
issue in Fiore, our Supreme Court’s opinions in Banks and Clark
merely clarified the meaning of section 190.2—Banks and Clark
merely clarified the “major participant” and “reckless indifference
to human life” principles that existed when defendant’s
conviction became final. The Federal Constitution therefore
requires reversal of the special circumstance finding against
defendant, and the Attorney General’s procedural arguments can
be no match for the United States Constitution’s demands.
      Felicitously, though, California law in fact stands in
harmony with Federal due process principles. The decisions of
the courts of this state invoked by the Attorney General—when
correctly understood—pose no bar to relief.
      What is known as the Waltreus rule7 provides that “legal
claims that have previously been raised and rejected on direct
appeal ordinarily cannot be reraised in a collateral attack by

7
      In re Waltreus (1965) 62 Cal.2d 218 (Waltreus).



                                24
filing a petition for a writ of habeas corpus.” (In re Reno (2012)
55 Cal.4th 428, 476 (Reno).) The rule is venerable, but it has no
application in the unusual circumstance here where our Supreme
Court has revisited the meaning of a penal statute. Banks and
Clark are correctly understood to have clarified the plain textual
requirements of section 190.2 that have existed since the
statute’s inception, and so understood, section 190.2 went
unsatisfied by the proof at defendant’s trial and the resulting
sentence must be vacated regardless of our prior determination of
defendant’s appeal. We concede this view of Banks and Clark is
subject to the criticism that it relies on what some have called a
legal fiction, namely, that our Supreme Court’s recent decisions
declared (or, more colorfully, unearthed) the always-existing
meaning of the statute. But years ago, in People v. Mutch (1971)
4 Cal.3d 389 (Mutch), our Supreme Court rejected precisely that
mode of criticism in favor of a result akin to the result we reach
here.
       The defendant in Mutch collaterally attacked the validity of
his aggravated kidnapping convictions based on a case decided
only after the convictions had become final, People v. Daniels
(1969) 71 Cal.2d 1119 (Daniels). Daniels construed the
kidnapping statute of conviction to require proof of asportation
that had not been adduced at Mutch’s trial, and our Supreme
Court held his challenged convictions must accordingly be
vacated. (Mutch, supra, 4 Cal.3d at pp. 393-394, 399.) The
dissent in Mutch engaged in an extended discussion of common
law retroactivity principles and criticized the result reached by
the majority—believing it depended on the “fiction or myth” that
a decision like Daniels that changed the prevailing
understanding of the law was not “new law” but rather a



                                25
discovery of what was, and theretofore had been, the true law.
(Id. at p. 403 (dis. opn. of Burke, J.).)
       The majority rejected the dissent’s view and explained
Mutch was entitled to rely on Daniels without need of resorting to
an analysis of whether the decision was “retroactive.” (Mutch,
supra, 4 Cal.3d at p. 394.) In the majority’s view, Daniels “did
not overturn a judge-made rule of common law” and “did not
change any . . . evidentiary or procedural rules . . . .” (Id. at pp.
394-395.) Rather, Daniels simply “recognized a statutory
rule . . . to which courts had not previously given appropriate
effect” (id. at p. 394); in other words, “‘what [Mutch] did was
never proscribed under [the aggravated kidnapping statute]’” (id.
at p. 396).8 The Mutch court accordingly held “finality for
purposes of appeal [was] no bar to relief” because habeas corpus
(and other extraordinary remedies) are available in a case where
a court acts in excess of its jurisdiction by imposing a punishment
for conduct not prohibited by the relevant penal statute. (Mutch,
supra, at p. 396.)



8
          Our Supreme Court reiterated the same principle more
recently in Woosley v. State of California (1992) 3 Cal.4th 758:
“‘To determine whether a decision should be given retroactive
effect, the California courts first undertake a threshold inquiry:
does the decision establish a new rule of law? If it does, the new
rule may or may not be retroactive . . . ; but if it does not, “no
question of retroactivity arises,” because there is no material
change in the law. [Citations.]’ [Citation.] An example of a
decision which does not establish a new rule of law is one in
which we give effect ‘to a statutory rule that the courts had
theretofore misconstrued ([ ]Mutch[, supra,] 4 Cal.3d [at p.] 394)
 . . . .’ [Citations.]” (Id. at p. 794.)



                                 26
       Banks and Clark are the equivalent of Daniels in Mutch.
For purposes of legal analysis, Banks and Clark did not create
new law; they simply state what section 190.2, subdivision (d)
has always meant. And that means defendant’s life without
parole sentence was not authorized by section 190.2 and the
Waltreus rule does not bar defendant’s habeas corpus claim.
       Nor is defendant’s claim prohibited by the rule set forth in
Lindley9 against permitting habeas corpus review of “routine
claims that the evidence presented at trial was insufficient . . . .”
(Reno, supra, 55 Cal.4th at p. 505.) In Lindley, a petitioner
sought habeas corpus relief on the ground that various trial
witnesses had lied under oath or lacked credibility. Our Supreme
Court found that while some of the testimony showed “serious
conflicts and unexplainable discrepancies,” the evidence did not
establish perjury. (Lindley, supra, 29 Cal.2d at p. 723.) Absent a
finding of perjury, the existence of testimony that was “uncertain,
questionable or directly in conflict with other testimony [did] not
afford a ground for relief upon habeas corpus” because “all of
[the] discrepancies and any probable falsehoods [in the
testimony] relate[d] to issues of fact or matters of defense, and
were, or could have been, brought to the attention of the jury.”
(Id. at pp. 722, 724.)
       Defendant’s claim that the evidence presented against him
failed to support the robbery-murder special circumstance (and
therefore a sentence of life without the possibility of parole) is not
a “routine” claim of insufficient evidence as described in Lindley.
His claim does not require resolution of disputed facts; the facts
are a given, they are just legally insufficient under section 190.2

9
      In re Lindley (1947) 29 Cal.2d 709 (Lindley).



                                 27
as elucidated in Banks and Clark. Defendant’s assertion of error,
therefore, falls outside the limitation on insufficient evidence
claims described in Lindley. (See In re Harris (1993) 5 Cal.4th
813, 840-841 [habeas relief unavailable if the reviewing court
must “reopen factual issues already sifted, evaluated, and
decided at trial” but appropriate “where such review does not
require a redetermination of the facts, and thus poses a strictly
legal issue”].)

                          DISPOSITION
      The petition for habeas corpus is granted. The true finding
on the robbery-murder special circumstance allegation under
section 190.2, subdivision (a)(17)(A) is vacated. The matter is
remanded with directions to resentence defendant consistent
with the views expressed in this opinion.

              CERTIFIED FOR PUBLICATION



                            BAKER, J.

We concur:


                                                       
      KRIEGLER, Acting P.J.                LANDIN, J.




      Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.



                                28
