Filed 7/9/15




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                           )
                                      )
           Plaintiff and Respondent,  )
                                      )                             S213819
           v.                         )
                                      )                       Ct.App. 2/2 B236152
LEON BANKS et al.,                    )
                                      )                      Los Angeles County
           Defendants and Appellants. )                    Super. Ct. No. BA347305
____________________________________)


        In 1990, the voters passed Proposition 115, which adopted a wide range of
criminal justice reforms, including extending death penalty eligibility to ―major
participant[s]‖ in felony murders. (Pen. Code, § 190.2, subd. (d)1 (section
190.2(d)), added by initiative, Primary Elec. (June 5, 1990) Prop. 115, § 10; see
Raven v. Deukmejian (1990) 52 Cal.3d 336, 342–345.) The issue before us is
under what circumstances an accomplice who lacks the intent to kill may qualify
as a major participant so as to be statutorily eligible for the death penalty.
        Section 190.2(d) was designed to codify the holding of Tison v. Arizona
(1987) 481 U.S. 137, which articulates the constitutional limits on executing
felony murderers who did not personally kill. Tison and a prior decision on which
it is based, Enmund v. Florida (1982) 458 U.S. 782, collectively place conduct on
a spectrum, with felony-murder participants eligible for death only when their

1       All further statutory citations are to the Penal Code.
involvement is substantial and they demonstrate a reckless indifference to the
grave risk of death created by their actions. Section 190.2(d) must be accorded the
same meaning.
        Here, defendant Lovie Troy Matthews acted as the getaway driver for an
armed robbery in which Leon Banks and others participated. In the course of
escaping, Banks shot one of the robbery victims. A jury found Matthews guilty of
first degree murder under a felony-murder theory and found true a felony-murder
special circumstance. The People did not seek the death penalty; consequently,
Matthews received the mandatory lesser sentence for special circumstance murder,
life imprisonment without parole. (§ 190.2, subd. (a).) Section 190.2(d) must be
given the same interpretation irrespective of whether the defendant is subsequently
sentenced to death or life imprisonment without parole. Because the record
establishes Matthews was no more culpable than the getaway driver in Enmund v.
Florida, supra, 458 U.S. 782, the evidence was insufficient as a matter of law to
support the special circumstance, and Matthews is statutorily ineligible for life
imprisonment without parole. We reverse the Court of Appeal‘s contrary decision
and remand for resentencing.
                    PROCEDURAL AND FACTUAL BACKGROUND
        Matthews‘s culpability for first degree felony murder is not in dispute. We
address only those facts relevant to the narrow issue on which we granted review,
whether Matthews can be found guilty of special circumstance murder and
sentenced to life imprisonment without parole. We recite the evidence in the light
most favorable to the jury‘s verdict. (People v. Jackson (2014) 58 Cal.4th 724,
749.)
        The La Brea Collective is a Los Angeles medical marijuana dispensary. At
its 2008 location, the dispensary had a metal security door providing access from
the sidewalk and behind that door a sally port and second lockable door leading

                                          2
into the lobby. Patients who rang the front doorbell were required to pass
identification and a physician‘s medical marijuana recommendation through a slot
in the door to a security guard, Noe Gonzalez, stationed in the sally port. Once the
papers were verified, patients would be escorted through the sally port and second
locked door into the dispensary lobby. Surveillance cameras monitored the
premises.
       On the afternoon of October 1, 2008, an employee looked at the camera
monitor and saw Gonzalez being escorted into the lobby by two men armed with
guns. The two men and a third accomplice, later identified as Leon Banks, David
Gardiner, and Brandon Daniels, began tying up employees and searching the
premises. One of them asked an employee, ―Where‘s the stuff at?‖ When shots
were fired, the three stopped and fled. An employee watched on the monitor as
the three reached the front door and struggled to exit. Banks returned to the lobby
and fired a shot out the front window. After additional shots were fired, the three
were able to escape.
       A witness across the street saw Gonzalez trying to push the front door
closed from the outside. The witness saw Banks reach his hand around the door
from the inside and shoot Gonzalez. As Gonzalez fell, Banks stepped out and shot
him again. Banks, Gardiner, and Daniels fled on foot.
       A driver passing the dispensary at approximately 3:45 p.m. heard popping
sounds and saw Banks and Gonzalez struggling at the dispensary‘s front door.
Both had guns and were reaching around the door and shooting at each other.
When the driver pulled over and looked back, he saw Gonzalez lying on the
sidewalk.
       On a residential street one block from the dispensary, a man was standing
on the sidewalk in front of his house when Daniels ran by and asked to use his
bathroom. The man refused, causing Daniels to pause. An SUV with paper

                                         3
license plates reading ―Power‖ came around the corner, and Daniels screamed
―Troy, Troy‖ (Matthews‘s middle name). The SUV slowed without completely
stopping. Daniels jumped in, another man later identified as Gardiner came across
the street and jumped in as well, and Matthews drove off.
       Police responding to the scene found Gonzalez dead on the sidewalk, a
revolver with his DNA on it on the ground near his outstretched arm.2 The
revolver contained two live rounds and three spent rounds. Within minutes, Banks
was captured on foot near the dispensary. Later that afternoon, an SUV with paper
Power plates was stopped a few blocks from the dispensary; Matthews, the driver
and sole occupant, was arrested. The SUV was registered to Banks and another
person, and clothing belonging to Banks was found inside. In a field show-up,
witnesses identified Banks as the shooter. Over the next few days, police found at
or near the dispensary a photocopy of a doctor‘s medical marijuana
recommendation and Banks‘s driver‘s license, zip ties, gloves, a holster, and a
semiautomatic handgun. DNA, fingerprint, and palm print testing tied Banks,
Daniels, and Gardiner to the dispensary, gloves, zip ties, and doctor‘s statement,
but excluded Matthews. Ballistics tests confirmed the semiautomatic handgun
was the murder weapon.
       Cellphones were recovered from Banks and Matthews. Call records
showed Matthews called Banks six times during the afternoon of October 1. Each
call lasted between 20 and 50 seconds; the calls came at 2:53, 3:46, 3:49, 3:51,
3:53, and 3:56 p.m. It was not possible to determine whether the two spoke or
these calls went to voicemail. Banks called Matthews three times, at 1:49, 3:44,



2     Gonzalez‘s coworkers testified he was unarmed while on duty. The source
of Gonzalez‘s gun was never conclusively established.



                                         4
and 3:58 p.m., with each call lasting approximately 20 seconds; these calls were
answered.
       Matthews was wearing a global positioning system (GPS) tracking device
that showed his movements to within 15 meters. An expert testified Matthews
was on the block containing the dispensary at 2:51 p.m., then three blocks away at
3:00 p.m., where he remained for approximately 45 minutes. At 3:46 p.m.,
Matthews moved toward the dispensary and made a series of stops within a few
blocks of it over the next few minutes.
       A gang expert testified Matthews, Gardiner, and Daniels were members of
the same criminal street gang. The gang‘s primary activities were described
generally as narcotics sales, burglaries, robberies, shootings, attempted murders,
murders, and gun possession. No evidence was presented that Matthews,
Gardiner, or Daniels had killed before, or that Matthews knew any of the three had
killed before. The expert testified Banks was not a member of the gang.
       Banks and Matthews were tried together. Matthews did not present any
evidence on his own behalf but argued the prosecution had failed to carry its
burden of proof.
       A jury convicted Matthews of first degree murder and found true the
special circumstance that the murder was committed during an attempted robbery
or burglary. (§§ 187, subd. (a), 190.2, subd. (a)(17).) He was also convicted of
burglary and attempted robbery with gang and firearm enhancements. (§§ 186.22,
subd. (b)(1), 211, 459, 664, former 12022.53, subds. (d), (e).) Because the
prosecution did not seek the death penalty, Matthews was sentenced to life
imprisonment without parole.
       On appeal, the Court of Appeal rejected Matthews‘s challenge to the
sufficiency of the evidence supporting the special-circumstance true finding. It
held his actions as a getaway driver in supporting the underlying robbery, with

                                          5
knowledge death was always a possibility in an armed robbery, were legally
sufficient under section 190.2(d). Given the significance of section 190.2(d) in
determining which felony murderers are eligible for either life imprisonment
without parole and death, or a lesser sentence, we granted review to address its
proper construction.
                                     DISCUSSION
       I.     The Felony-murder Aider and Abettor Special Circumstance
       The federal Constitution‘s Eighth Amendment does not prohibit the death
penalty, but it does require that states offer guidance to sentencing bodies tasked
with differentiating those for whom death is appropriate from those for whom it is
not. (Gregg v. Georgia (1976) 428 U.S. 153, 187–189; People v. Crittenden
(1994) 9 Cal.4th 83, 154; People v. Green (1980) 27 Cal.3d 1, 48.) California
provides this guidance through a two-step process. First, a list of special
circumstances identifies those crimes deemed sufficiently reprehensible to warrant
possible punishment by death. (§ 190.2; People v. Bacigalupo (1993) 6 Cal.4th
457, 467–468.) If a sentencer finds one or more special circumstances true, the
defendant becomes death eligible and must be sentenced to either death or life
without the possibility of parole. (§ 190.2, subd. (a).) Second, the sentencer must
consider potential statutory aggravating factors and weigh them against any
mitigating factors to determine whether death or life imprisonment without parole
is the appropriate punishment. (§ 190.3; see Tuilaepa v. California (1994) 512
U.S. 967, 975–980; Bacigalupo, at pp. 468–470.)
       The special circumstances statute extends death eligibility not only to
killers, but also to certain aiders and abettors of first degree murder. (§ 190.2,




                                           6
subds. (c), (d).)3 In the case of first degree felony murder, ―every person, not the
actual killer, who, with reckless indifference to human life and as a major
participant‖ aids or abets the crime may be convicted of special-circumstance
murder. (Id., subd. (d).) The statute thus imposes both a special actus reus
requirement, major participation in the crime, and a specific mens rea requirement,
reckless indifference to human life.4
       Section 190.2(d) does not define what qualifies as major participation, but
the statutory history shows where to find guidance. As noted, the provision was
adopted by voter initiative. (See Prop. 115, as approved by voters, Primary Elec.
(June 5, 1990), § 10.) Supporters argued the initiative‘s ― ‗BIRD COURT‘
DEATH PENALTY PROVISIONS [would] improve our death penalty law and
overturn decisions by Rose Bird and her allies which made it nearly inoperative.‖
(Ballot Pamp., Primary Elec. (June 5, 1990) argument in favor of Prop. 115,
p. 34.) Among those decisions, Carlos v. Superior Court (1983) 35 Cal.3d 131,
135, had held the felony-murder special circumstance (§ 190.2, subd. (a)(17))
required an intent to kill. The post-Bird Court decision People v. Anderson (1987)
43 Cal.3d 1104, 1147, had occasion to overrule Carlos only insofar as it had
required an intent to kill for actual killers, leaving in place the intent requirement
for aiders and abettors. Thus, as it stood in 1990, state law made only those




3     As relevant here, involvement in both burglary murder and robbery murder
can subject an aider and abettor to death. (§ 190.2, subds. (a)(17)(A) & (G), (d).)
4       Alternatively, aiders and abettors who act with the intent to kill become
death eligible whether or not their conduct makes them major participants in the
crime. (§ 190.2, subd. (c).) The prosecution did not argue Matthews had the
intent to kill, relying exclusively on the theory he was a major participant who
acted with reckless indifference to human life.



                                           7
felony-murder aiders and abettors who intended to kill eligible for a death
sentence. (People v. Mil (2012) 53 Cal.4th 400, 408.)
       Proposition 115 revised the scope of capital liability for aiding and abetting
felony murders by looking to federal constitutional law. The text of new section
190.2(d) mirrored the holding of, and was intended to bring ―state law into
conformity with[,] Tison v. Arizona[, supra,] 481 U.S. 137,‖ the United States
Supreme Court‘s most recent word on capital punishment for involvement in
felony murders. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 298, fn. 16; see
People v. Estrada (1995) 11 Cal.4th 568, 575, 580.) The term ―major participant‖
is borrowed directly from Tison. (Tison, at p. 158, fn. 12.) Because ―Tison is the
source of the language of section 190.2(d)‖ (Estrada, at p. 575), we ―look[] to
Tison for the meaning of the statutory phrase[s]‖ derived from it (id. at p. 576).
       II.    Tison v. Arizona and Enmund v. Florida
       To understand the import of Tison, we start with an earlier case upon which
Tison builds, Enmund v. Florida, supra, 458 U.S. 782. In that case, defendant Earl
Enmund purchased a calf from victim Thomas Kersey and in the process learned
Kersey was in the habit of carrying large sums of cash on his person. A few
weeks later, Enmund drove two armed confederates to Kersey‘s house and waited
nearby while they entered. When Kersey‘s wife appeared with a gun, the
confederates shot and killed both Kerseys. Enmund thereafter drove his
confederates away from the scene and helped dispose of the murder weapons,
which were never found. He was convicted of robbery and first degree murder
and sentenced to death. (Id. at pp. 784–787; Enmund v. State (1981) 399 So.2d
1362, 1363–1367, revd. sub nom. Enmund v. Florida, supra, 458 U.S. 782.)
       On these facts, the United States Supreme Court reversed Enmund‘s death
sentence as prohibited by the federal Constitution. The court found a broad
consensus against imposing death in cases ―where the defendant did not commit

                                          8
the homicide, was not present when the killing took place, and did not participate
in a plot or scheme to murder.‖ (Enmund v. Florida, supra, 458 U.S. at p. 795.)
Accordingly, it held the Eighth Amendment bars the death penalty for any felony-
murder aider and abettor ―who does not himself kill, attempt to kill, or intend that
a killing take place or that lethal force will be employed.‖ (Enmund, at p. 797.)
The intent to commit an armed robbery is insufficient; absent the further ―intention
of participating in or facilitating a murder‖ (id. at p. 798), a defendant who acts as
―the person in the car by the side of the road at the time of the killings, waiting to
help the robbers escape‖ (id. at p. 788) cannot constitutionally be sentenced to
death.
         In Tison v. Arizona, supra, 481 U.S. 137, the Supreme Court revisited the
issue of death sentences for those guilty of felony murder as accomplices.
Prisoner Gary Tison‘s sons Ricky and Raymond Tison, with their brother Donald,
conducted an armed breakout of Gary and his cellmate from prison, holding
guards and visitors at gunpoint. During the subsequent escape, their car, already
down to its spare tire, suffered another flat, so the five men agreed to flag down a
passing motorist in order to steal a replacement car. Raymond waved down a
family of four; the others then emerged from hiding and captured the family at
gunpoint. Raymond and Donald drove the family into the desert in the Tisons‘
original car with the others following. Ricky and the cellmate removed the
family‘s possessions from their car and transferred the Tison gang‘s possessions to
it; Gary and his cellmate then killed all four family members. When the Tisons
were later apprehended at a roadblock, Donald was killed and Gary escaped into
the desert, only to die of exposure. (Id. at pp. 139–141.) Ricky and Raymond
Tison and the cellmate were tried and sentenced to death. The trial court made
findings that Ricky and Raymond‘s role in the series of crimes was ― ‗very
substantial‘ ‖ and they could have foreseen their actions would ― ‗create a grave

                                           9
risk of . . . death.‘ ‖ (Id. at p. 142.) The Arizona Supreme Court denied relief.
(Id. at pp. 143–145.)
       The United States Supreme Court granted Ricky‘s and Raymond‘s petitions
to consider the application of Enmund to these facts. The court began by
discussing at length and endorsing Enmund‘s holding that the Eighth Amendment
limits the ability of states to impose death for ―felony murder simpliciter.‖ (Tison
v. Arizona, supra, 481 U.S. at p. 147; see id. at pp. 146–150.) Specifically, Tison
described the range of felony-murder participants as a spectrum. At one extreme
were people like ―Enmund himself: the minor actor in an armed robbery, not on
the scene, who neither intended to kill nor was found to have had any culpable
mental state.‖ (Id. at p. 149.) At the other extreme were actual killers and those
who attempted or intended to kill. (Id. at p. 150.) Under Enmund, Tison held,
death was disproportional and impermissible for those at the former pole, but
permissible for those at the latter. (Ibid.) The Supreme Court then addressed the
gray area in between, the proportionality of capital punishment for felony-murder
participants who, like the two surviving Tison brothers, fell ―into neither of these
neat categories.‖ (Ibid.) Here, the court announced, ―major participation in the
felony committed, combined with reckless indifference to human life, is sufficient
to satisfy the Enmund culpability requirement.‖ (Id. at p. 158.) This is the
language the electorate codified in section 190.2(d).
       The Supreme Court has yet to revisit Tison and Enmund. The only
guidance its subsequent cases offer comes from Kennedy v. Louisiana (2008) 554
U.S. 407, 421, where the court in dicta characterized the governing standard as
permitting the death penalty for nonkillers whose ―involvement in the events
leading up to the murders was active, recklessly indifferent, and substantial.‖ Nor,
save once, have this state‘s courts elaborated on the test for death eligibility for
nonkillers. The exception is People v. Proby (1998) 60 Cal.App.4th 922, which

                                          10
concluded ―major participation‖ should be understood as the phrase is used in
common parlance, as including those whose involvement is ― ‗notable or
conspicuous in effect or scope‘ ‖ and who are ― ‗one of the larger or more
important members . . . of a . . . group.‘ ‖ (Id. at pp. 933–934, quoting Webster‘s
3d New Internat. Dict. (3d ed. 1971) p. 1363; see People v. Smith (2005) 135
Cal.App.4th 914, 928 [adopting Proby‘s gloss]; People v. Hodgson (2003) 111
Cal.App.4th 566, 579–580 [same].)
       We agree with People v. Proby, supra, 60 Cal.App.4th 922 that there is no
reason to think either the United States Supreme Court in Tison or the drafters of
Proposition 115 had in mind a specialized or technical meaning for ―major
participant.‖ Proby‘s gloss on that phrase and the Kennedy v. Louisiana dictum,
that a defendant must have been actively and substantially involved in the events
leading up to a murder (Kennedy v. Louisiana, supra, 554 U.S. at p. 421), are of
some help. But rephrasing Tison‘s dictates in essentially synonymous words takes
us only so far. To gain a deeper understanding of the governing test and offer
further guidance, we examine more closely Tison and Enmund.
       The two cases embrace the United States Supreme Court‘s long-standing
recognition that, in capital cases above all, punishment must accord with
individual culpability. States may ―make aiders and abettors equally responsible,
as a matter of law, with principals, or . . . enact felony-murder statutes‖ that make
individual involvement in an underlying crime enough to hold a nonkiller liable
for first degree murder. (Lockett v. Ohio (1978) 438 U.S. 586, 602.) However,
―the definition of crimes generally has not been thought automatically to dictate
what should be the proper penalty.‖ (Ibid.) When it comes time to determine a
proportionate punishment, the Constitution requires more: ―an individualized
decision is essential in capital cases.‖ (Lockett, at p. 605; see Tison v. Arizona,
supra, 481 U.S. at p. 149 [a state must ―inquire into the relevant facets of ‗the

                                          11
character and record of the individual offender‘ ‖]; id. at p. 156 [noting the
―individualized determination of culpability required in capital cases‖]; Enmund v.
Florida, supra, 458 U.S. at p. 798 [―The focus must be on his culpability, not on
that of those who committed the robbery and shot the victims‖].) A sentencing
body must examine the defendant‘s personal role in the crimes leading to the
victim‘s death and weigh the defendant‘s individual responsibility for the loss of
life, not just his or her vicarious responsibility for the underlying crime. (See
Tison, at p. 158 [evaluating ―[t]he petitioners‘ own personal involvement in the
crimes‖]; Enmund, at p. 798 [though Earl Enmund participated in an armed
robbery, he ―did not kill or intend to kill and thus his culpability is plainly
different from that of the robbers who killed‖].)
       With respect to the mental aspect of culpability, Tison, and in turn section
190.2(d), look to whether a defendant has ― ‗knowingly engag[ed] in criminal
activities known to carry a grave risk of death.‘ ‖ (People v. Estrada, supra, 11
Cal.4th at p. 577, quoting Tison v. Arizona, supra, 481 U.S. at p. 157.) The
defendant must be aware of and willingly involved in the violent manner in which
the particular offense is committed, demonstrating reckless indifference to the
significant risk of death his or her actions create. There is an ―apparent consensus
that substantial participation in a violent felony under circumstances likely to
result in the loss of innocent human life may justify the death penalty‖ (Tison, at
p. 154); accordingly, the death penalty may be applied to those who, like the
Tisons, ―subjectively appreciated that their acts were likely to result in the taking
of innocent life‖ (id. at p. 152).
       With respect to conduct, Tison and Enmund establish that a defendant‘s
personal involvement must be substantial, greater than the actions of an ordinary
aider and abettor to an ordinary felony murder such as Earl Enmund. The
defendants‘ actions in Tison v. Arizona, supra, 481 U.S. 137 and Enmund v.

                                           12
Florida, supra, 458 U.S. 782 represent points on a continuum. (Tison, at pp. 149–
151.) Somewhere between them, at conduct less egregious than the Tisons‘ but
more culpable than Earl Enmund‘s, lies the constitutional minimum for death
eligibility. Because the Supreme Court found it unnecessary to ―precisely
delineate the particular types of conduct and states of mind warranting imposition
of the death penalty‖ (id. at p. 158), it follows that a jury presented with this
question must consider the totality of the circumstances. The specific facts of the
two cases illuminate the sort of considerations that may be relevant to a jury‘s
deliberations.
       In Tison, Ricky and Raymond Tison helped plan and carry out the escape of
two convicted murderers from prison—one of whom, Gary Tison, was serving a
life sentence for killing a guard in the course of a previous escape. (Tison v.
Arizona, supra, 481 U.S. at p. 139.) This entailed their bringing a cache of
weapons to prison, arming both murderers, and holding at gunpoint guards and
visitors alike. (Id. at p. 151.) There was no similar evidence that Enmund‘s
confederates were killers, or that he knew they were. Raymond Tison ―[b]y his
own admission . . . was prepared to kill in furtherance of the prison break.‖ (Ibid.)
There was no similar admission from Enmund. As part of the ongoing escape,
Ricky and Raymond Tison later participated in stopping and capturing an
―innocent family whose fate was then entrusted to the known killers [they] had
previously armed.‖ (Ibid.) They robbed the family and held them at gunpoint
while the two murderers deliberated whether the family should live or die, then
stood by while all four members were shot. (Ibid.) Enmund, in contrast, was
absent from the scene, with no opportunity to contribute to or prevent the actual
killing.
       The Tisons did not assist in a garden-variety armed robbery, where death
might be possible but not probable, but were substantially involved in a course of

                                          13
conduct that could be found to entail a likelihood of death; distinguishing Enmund,
the Supreme Court said: ―Far from merely sitting in a car away from the actual
scene of the murders acting as the getaway driver to a robbery, each petitioner was
actively involved in every element of the kidnaping-robbery and was physically
present during the entire sequence of criminal activity culminating in the murder
of the Lyons family and the subsequent flight.‖ (Tison v. Arizona, supra, 481 U.S.
at p. 158.) Unlike the Tisons, Earl Enmund was just a getaway driver, sitting in a
car away from the murders. Execution of minor, absent participants like Enmund
remained disproportionate and constitutionally intolerable. (Id. at p. 149.)
       Among those factors that distinguish the Tisons from Enmund, and thus
may play a role in determining whether a defendant‘s culpability is sufficient to
make him or her death eligible, are these: What role did the defendant have in
planning the criminal enterprise that led to one or more deaths? What role did the
defendant have in supplying or using lethal weapons? What awareness did the
defendant have of particular dangers posed by the nature of the crime, weapons
used, or past experience or conduct of the other participants? Was the defendant
present at the scene of the killing, in a position to facilitate or prevent the actual
murder, and did his or her own actions or inactions play a particular role in the
death?5 What did the defendant do after lethal force was used? No one of these

5       In cases where lethal force is not part of the agreed-upon plan, absence
from the scene may significantly diminish culpability for death. (See Enmund v.
Florida, supra, 458 U.S. at p. 795 [identifying a national consensus against death
for nonkillers who did not plot murder and were ―not present when the killing took
place‖].) Those not present have no opportunity to dissuade the actual killer, nor
to aid the victims, and thus no opportunity to prevent the loss of life. Nor,
conversely, are they in a position to take steps that directly and immediately lead
to death, as with the Tisons‘ capturing and standing guard over the victims. (See
Tison v. Arizona, supra, 481 U.S. at p. 158 [emphasizing the Tisons‘ physical
presence and active involvement in every step].)



                                           14
considerations is necessary, nor is any one of them necessarily sufficient. All may
be weighed in determining the ultimate question, whether the defendant‘s
participation ―in criminal activities known to carry a grave risk of death‖ (Tison v.
Arizona, supra, 481 U.S. at p. 157) was sufficiently significant to be considered
―major‖ (id. at p. 152; see Kennedy v. Louisiana, supra, 554 U.S. at p. 421.)
       The People propose we treat as a major participant potentially eligible for
death anyone ―whose conduct involves the intentional assumption of some
responsibility for the completion of the crime regardless of whether the crime is
ultimately successful. As such, participation in planning with the intent of
facilitating the commission of the crime, or participating in conduct integral to or
for the purpose of facilitating the commission of the crime, constitutes major
participation.‖ This test cannot be reconciled with the holdings of Tison and
Enmund. Requiring only ―the intentional assumption of some responsibility for
the completion of the crime‖ would sweep in essentially every felony murderer—
indeed, even Earl Enmund himself—whether an actual killer or not. Doing so
would violate the Supreme Court‘s requirement that each felony murderer‘s
culpability be considered individually and disregard the court‘s corresponding
recognition that, for many nonkillers, death is disproportionate to that individual
culpability and thus unconstitutional.
       Finally, we note the standards we articulate, although developed in death
penalty cases, apply equally to cases like this one involving statutory eligibility
under section 190.2(d) for life imprisonment without parole. As a purely
constitutional matter, nothing would foreclose California from imposing life
imprisonment without parole sentences on felony murderers with Matthews‘s
degree of culpability. (See People v. Estrada, supra, 11 Cal.4th at p. 575
[― ‗reckless indifference to human life‘ ‖ is not constitutionally required for a life
imprisonment without parole sentence]; People v. Johnson (2010) 183

                                          15
Cal.App.4th 253, 296–299 [rejecting an 8th Amend. challenge to a life
imprisonment without parole sentence for a robbery-murder getaway driver].)
Section 190.2(d) does not, however, extend eligibility for life imprisonment
without parole to every defendant exhibiting the constitutionally minimum degree
of culpability for that sentence. Instead, by importing the Tison-Enmund standard,
it permits such a sentence only for those felons who constitutionally could also be
subjected to the more severe punishment, death. As a matter of state statute, then,
the Tison-Enmund standard is ―applicable to all allegations of a felony-murder
special circumstance, regardless of whether the People seek and exact the death
penalty or a sentence of life without parole.‖ (Estrada, at p. 576.) Accordingly,
the considerations that informed the Supreme Court‘s distinctions between
differing levels of culpability in Tison v. Arizona, supra, 481 U.S. 137 should
guide juries faced with making those same distinctions under section 190.2(d).
       III.   Application
       When reviewing a challenge to the sufficiency of the evidence, we ask
― ‗whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.‘ ‖ (People v. Edwards (2013) 57 Cal.4th
658, 715, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) Because the
sufficiency of the evidence is ultimately a legal question, we must examine the
record independently for ― ‗substantial evidence—that is, evidence which is
reasonable, credible, and of solid value‘ ‖ that would support a finding beyond a
reasonable doubt. (People v. Boyce (2014) 59 Cal.4th 672, 691.) These same
standards apply to challenges to the evidence underlying a true finding on a
special circumstance. (Edwards, at p. 715.)




                                         16
              A.     Major participation
       Considering the record in the light most favorable to the judgment, there
was substantial evidence to show Matthews acted as the getaway driver for an
armed robbery. The jury could infer from Matthews‘s movements that he dropped
his confederates off near the dispensary. Matthews then waited three blocks away
for approximately 45 minutes. Moments after the shooting and a call from Banks,
he drove toward the dispensary. A witness saw Daniels flag Matthews down. He
slowed, Daniels and Gardiner got in, and he drove them away.
       The evidence in the record places Matthews at the Enmund pole of the
Tison-Enmund spectrum. Indeed, as Matthews argues, his conduct is virtually
indistinguishable from Earl Enmund‘s. No evidence was introduced establishing
Matthews‘s role, if any, in planning the robbery.6 No evidence was introduced
establishing Matthews‘s role, if any, in procuring weapons. Matthews and two
confederates—though not the shooter—were gang members, but, in contrast to the
convicted murderers the Tison brothers chose to free and arm, no evidence was
introduced that Matthews, Gardiner or Daniels had themselves previously
committed murder, attempted murder, or any other violent crime. The crime itself
was an armed robbery; Enmund and Tison together demonstrate that participation
in an armed robbery, without more, does not involve ―engaging in criminal


6       The People argue Matthews had a greater role than Enmund in planning
their respective armed robberies, but the prosecution introduced no evidence that
would support this. At most, there was evidence Matthews participated in the
robbery, from which a jury might reasonably infer he had some role in planning it,
but the nature of that role is, on the record before us, a matter of pure conjecture.
In Enmund, in contrast, the trial court made express findings that Earl Enmund had
planned the robbery. (See Enmund v. Florida, supra, 458 U.S. at pp. 803–806,
809 (dis. opn. of O‘Connor, J.); Enmund v. State, supra, 399 So.2d at pp. 1365,
1372–1373.)



                                           17
activities known to carry a grave risk of death.‖ (Tison v. Arizona, supra, 481
U.S. at p. 157.) During the robbery and murder, Matthews was absent from the
scene, sitting in a car and waiting. There was no evidence he saw or heard the
shooting, that he could have seen or heard the shooting, or that he had any
immediate role in instigating it or could have prevented it.
       On this record, Matthews was, in short, no more than a getaway driver,
guilty like Earl Enmund of ―felony murder simpliciter‖ (Tison v. Arizona, supra,
481 U.S. at p. 147; see Enmund v. Florida, supra, 458 U.S. at pp. 784–787;
Enmund v. State, supra, 399 So.2d at p. 1370) but nothing greater. As such, he is
ineligible for the death penalty under Tison and Enmund. Because section
190.2(d) incorporates the Tison-Enmund standard, if the evidence was insufficient
to make Matthews death eligible under these cases, the evidence was also
insufficient to find the special circumstance true and Matthews eligible for life
imprisonment without parole under state law.
       The Court of Appeal dismissed the relevance of comparisons to the facts of
Enmund v. Florida, supra, 458 U.S. 782, treating Enmund as applicable only to
the constitutionality of certain death sentences and immaterial to the present
inquiry, whether as a statutory matter the section 190.2(d) special circumstance
applies to Matthews. The People also argue Enmund has no bearing, noting that
section 190.2(d)‘s statutory language is drawn from Tison, not Enmund. But
Enmund cannot be dismissed so easily. As we have explained, Tison did not
overrule Enmund, but rather elaborated on the constitutional limits to punishment
of felony-murder accomplices first announced there. (Tison v. Arizona, supra, 481
U.S. at p. 158 [defining what conduct would ―satisfy the Enmund culpability
requirement‖]; see Graham v. Florida (2010) 560 U.S. 48, 69 [treating Tison and
Enmund as of equal continuing vitality in marking the bounds of the 8th Amend.];
Kennedy v. Louisiana, supra, 554 U.S. at p. 421 [same]; Ring v. Arizona (2002)

                                         18
536 U.S. 584, 594 [Tison represents a qualification of the rule in Enmund].)
Under the spectrum of culpable felony-murderer behavior Tison constructs, Earl
Enmund‘s conduct marks one end. (Tison, at pp. 149–150.) The facts and holding
of Enmund are thus essential to an understanding of that spectrum and where each
new case should be deemed to fall on it. Enmund is inseparable from Tison.
       In the alternative, the People offer the prosecutor‘s closing argument below
to illustrate how Matthews‘s conduct can be distinguished from Earl Enmund‘s.
Tellingly, however, the closing argument offers no distinction; were one simply to
replace the names of those involved in this case with those involved in Enmund v.
Florida, supra, 458 U.S. 782, it would apply equally—save for the fact Enmund,
unlike Matthews, contributed to not one but two homicides: ―And what ‗major
participant‘ means is this: what was his involvement, how important was Mr.
[Enmund‘s] involvement in the crime, and with that you look at his actions. As
I‘ve stated multiple times, Mr. [Enmund] is the one that gets everyone to this
location. Mr. [Enmund] is the guy that drives the getaway vehicle. Mr. [Enmund]
is the one that‘s supposed to pick up everybody at this location. [¶] You know,
short of Mr. [Armstrong] who actually killed Mr. [and Mrs. Kersey], next most
involved person had to be Mr. [Enmund], right? Mr. [Enmund] is the one that
started all this process. He gets everyone to the location, waits around, and his job
was to get everyone to safety afterwards. [¶] I submit to you, ladies and
gentlemen, that Mr. [Enmund] was a major participant. Without him, you don‘t
even have an attempted robbery. Without him, you don‘t have a burglary. And
honestly, without him taking Mr. [Armstrong] to this location, you wouldn‘t have
the murder of [the Kerseys].‖
       The People also highlight the evidence of cellphone contact between
Matthews and Banks, the shooter. The record shows a series of nine cellphone
calls between Matthews and Banks, each lasting less than one minute, and as

                                         19
many as six of which may simply have gone to voicemail. No evidence about the
content of the calls was introduced, and the bare evidence of the call records tells
us nothing additional about Matthews‘s awareness of or involvement in the
shooting. Banks and Matthews apparently spoke either hours before or shortly
after the killing, and GPS evidence established Matthews was away from the scene
until after the victim was dead. Earl Enmund, too, no doubt found out after the
robbery that his coconspirators had killed two people, yet he still drove them away
to safety and apparently directed disposal of the murder weapons. (Enmund v.
State, supra, 399 So.2d at p. 1366.) Matthews, like Enmund and unlike the
Tisons, did not see the shooting happen, did not have reason to know it was going
to happen, and could not do anything to stop the shooting or render assistance.
The call records do nothing to increase Matthews‘s role beyond that of Enmund‘s;
instead, they show only that technology has changed.
       The other facts the People cite—that Matthews drove near the crime scene,
sat in a parked car blocks away waiting for a signal to pick up his confederates,
and afterward drove toward the dispensary and picked up two accomplices—show
simply that he acted as a getaway driver. Earl Enmund, too, was a getaway driver
who may have been involved in planning an armed robbery, but as a matter of
precedent Enmund is the quintessential ―minor actor.‖ (Tison v. Arizona, supra,
481 U.S. at p. 149.) It follows that Matthews is as well and, as a matter of law,
cannot qualify as a major participant under section 190.2(d).
              B.     Reckless Indifference to Human Life
       Consideration of Matthews‘s mens rea also leads us to conclude he is
legally ineligible for a sentence of life imprisonment without parole. Reckless
indifference to human life ―requires the defendant be ‗subjectively aware that his
or her participation in the felony involved a grave risk of death.‘ ‖ (People v. Mil,
supra, 53 Cal.4th at p. 417, quoting People v. Estrada, supra, 11 Cal.4th at

                                         20
p. 577.) There was evidence from which the jury could infer Matthews knew he
was participating in an armed robbery. But nothing at trial supported the
conclusion beyond a reasonable doubt that Matthews knew his own actions would
involve a grave risk of death. There was no evidence Matthews intended to kill or,
unlike the Tisons, knowingly conspired with accomplices known to have killed
before. Instead, as in Enmund, Banks‘s killing of Gonzalez was apparently a
spontaneous response to armed resistance from the victim.
       The Court of Appeal, in a line of reasoning endorsed by the People,
concluded that ―[w]ith advance knowledge of the planned robbery and burglary,
Matthews had to be aware of the risk of resistance and the extreme likelihood that
death could result.‖7 According to the appellate court, Matthews‘s confederates
surely ―anticipated as much because they were armed,‖ and although Matthews
was not armed, the jury could readily infer Matthews knew his confederates were.
       The problem with the sufficiency of such evidence to prove reckless
indifference to human life is that Enmund and Tison deem identical evidence
inadequate. In Enmund, the Supreme Court rejected exactly this argument, that
the risk of death inherent in an armed robbery justifies the death penalty simply for
knowingly participating in such a crime. ―It would be very different if the
likelihood of a killing in the course of a robbery were so substantial that one
should share the blame for the killing if he somehow participated in the felony.
But competent observers have concluded that there is no basis in experience for
the notion that death so frequently occurs in the course of a felony for which
killing is not an essential ingredient that the death penalty should be considered as

7      The prosecutor‘s closing argument rested on the same theory: Matthews
knowingly participated in a robbery, and the fact armed robberies carry with them
―a possibility someone may get killed‖ is common knowledge.



                                         21
a justifiable deterrent to the felony itself.‖ (Enmund v. Florida, supra, 458 U.S. at
p. 799.)
       In Tison as well, the Arizona Supreme Court had employed the same logic
as the Court of Appeal here, reasoning that the constitutional culpability
requirement was satisfied by the fact a participant in an armed robbery could
anticipate lethal force might be used. The United States Supreme Court was
unpersuaded, observing Earl Enmund himself might well have anticipated the use
of lethal force as a possibility, for ―the possibility of bloodshed is inherent in the
commission of any violent felony and this possibility is generally foreseeable and
foreseen; it is one principal reason that felons arm themselves.‖ (Tison v. Arizona,
supra, 481 U.S. at p. 151.) This understanding of the requisite culpability
―amounts to little more than a restatement of the felony-murder rule itself‖ (ibid.),
rendering death eligible every felony-murder accomplice and running afoul of the
Enmund court‘s holding that death is a disproportionate penalty for participation in
―felony murder simpliciter.‖ (Tison, at p. 148; id. at pp. 146–149.) Awareness of
no more than the foreseeable risk of death inherent in any armed crime is
insufficient; only knowingly creating a ―grave risk of death‖ satisfies the
constitutional minimum. (Id. at p. 157.)
       The People attempt to distinguish Tison‘s discussion of the issue by noting
it arose as part of the high court‘s rejection of the Arizona Supreme Court‘s
equating knowledge of the foreseeability of possible death with the intent to kill
called for by Enmund. However true, this point does not sap the discussion of its
force. While Tison slightly revised the mental culpability necessary for death
eligibility, from intent to kill to reckless indifference toward human life, it
simultaneously concluded knowledge of the possible risk of death inherent in
certain felonies (like armed robbery) would not satisfy this lesser standard either.
The Tison court distinguished the defendants before it from ―the category of

                                           22
felony murderers for whom Enmund explicitly held the death penalty
disproportional,‖ because for the Tisons, unlike for Earl Enmund and his ilk, ―the
record would support a finding of the culpable mental state of reckless
indifference to human life.‖ (Tison v. Arizona, supra, 481 U.S. at p. 151.) The
Supreme Court thus made clear felony murderers like Enmund, who simply had
awareness their confederates were armed and armed robberies carried a risk of
death, lack the requisite reckless indifference to human life. The Court of
Appeal‘s equating Matthews‘s similar awareness with reckless indifference to
human life cannot be squared with Enmund and Tison.8
       Alternatively, the People highlight the United States Supreme Court‘s
recognition that ―there are some felonies as to which one could properly conclude
that any major participant necessarily exhibits reckless indifference to the value of


8      In People v. Lopez (2011) 198 Cal.App.4th 1106, the defendant was
sentenced to life imprisonment without parole after she lured a man into an alley
under the pretext of engaging in prostitution, whereupon he was robbed and
murdered by her accomplice. The Court of Appeal opined that evidence the
defendant knew her accomplice ―had a gun shows that she acted with reckless
indifference to the life of the man she lured into the alley.‖ (Id. at p. 1116.) That
the defendant may have acted with the requisite reckless indifference was
supported by other evidence as well, and we need not resolve whether Lopez was
correctly decided based on that other evidence. However, we disapprove People
v. Lopez, supra, 198 Cal.App.4th 1106 to the extent it holds the knowledge one‘s
accomplice is armed can, by itself, establish reckless indifference to human life
under section 190.2(d).
       In People v. Hodgson, supra, 111 Cal.App.4th 566, the Court of Appeal
upheld a robbery-murder special circumstance, reasoning in part that the defendant
―had to be aware use of a gun to effect the robbery presented a grave risk of
death.‖ (Id. at p. 580.) As with Lopez, there was other evidence to support the
special circumstance, but we disapprove People v. Hodgson, supra, 111
Cal.App.4th 566 to the extent it may be read to hold awareness a robbery
accomplice is armed, without more, establishes the necessary subjective awareness
of a grave risk of death.



                                         23
human life.‖ (Tison v. Arizona, supra, 481 U.S. at p. 158, fn. 12.) They argue
each crime listed in section 189 qualifies and thus Matthews, because he
participated in two such crimes, robbery and burglary, has automatically exhibited
reckless indifference to human life.
       Section 189 codifies the first degree felony-murder rule (People v. Harris
(2008) 43 Cal.4th 1269, 1294); participation in the crimes it lists subjects one to
liability for first degree murder. To make participation in such crimes also
sufficient, without more, to establish categorically reckless indifference to human
life would collapse the Tison inquiry into the felony-murder inquiry and treat all
felony murderers as equally culpable and eligible for death. But the central
holding of Enmund, and Tison after it, was that for purposes of the death penalty,
not all felony murderers are equally culpable and eligible for death. The People‘s
position embraces the very punishment—death eligibility for participation in
felony murder simpliciter—the Supreme Court has declared unconstitutional. (See
Tison v. Arizona, supra, 481 U.S. at pp. 147–150; Enmund v. Florida, supra, 458
U.S. at p. 797.)
       That one may infer the felonies listed in section 189 are those the
Legislature views as ―inherently dangerous‖ (People v. Cavitt (2004) 33 Cal.4th
187, 197) does not change the analysis. Whether a category of crimes is
sufficiently dangerous to warrant felony-murder treatment, and whether an
individual participant has acted with reckless indifference to human life, are
different inquiries. Section 189 cannot be read as attempting to conflate them, and
in any event under Enmund and Tison it would be impermissible for a state
legislature to declare all participation in broad classes of felony murders, such as
burglaries or robberies, punishable by death without further inquiry into each




                                         24
individual defendant‘s mental state. (See Tison v. Arizona, supra, 481 U.S. at
p. 149; Enmund v. Florida, supra, 458 U.S. at p. 798.)9
       Finally, the People note two case-specific features of the armed robbery
here that they suggest demonstrate reckless indifference to human life. First,
Matthews, Daniels, and Gardiner—but not Banks—were members of the same
gang. An expert testified their gang included 750 members, divided into cliques.
In a single line of testimony, the expert identified the primary activities of the
entire gang as ―narcotics sales, burglaries, robberies, shootings, attempted
murders, murders, gun—carrying guns.‖ No evidence indicated Matthews or his
two confederates had ever participated in shootings, murder, or attempted murder,
or even that any member of their clique had.10
       This evidence does not materially distinguish this case from Enmund or
bring it any closer to Tison. The evidence connecting Daniels and Gardiner
personally to past acts of violence was so attenuated as to be essentially non-
existent; as to Banks, the actual shooter, it was entirely nonexistent. The contrast
with Tison, where the Tison brothers freed and armed Gary Tison, who had killed
before in the course of a previous prison escape, is stark.



9       Tison does not specify those few felonies for which any major participation
would ―necessarily exhibit[] reckless indifference to the value of human life.‖
(Tison v. Arizona, supra, 481 U.S. at p. 158, fn. 12.) One could surmise a partial
list of crimes the United States Supreme Court might agree on—say, the
manufacture and planting of a live bomb. But we need not speculate. Even the
Tisons‘ prison break of two convicted murderers was remanded, rather than
treated as per se demonstrating the requisite reckless indifference. Plainly, armed
robbery does not qualify. (See id. at pp. 147–150.)
10    The only specific gang crimes the expert testified to were two firearm
possession convictions committed by other members uninvolved in the instant
robbery. (See § 186.22, subd. (e)(31) & (32).)



                                          25
       Second, the dispensary had a sally port, security cameras, and a guard. To
get through the sally port, the robbers had a medical marijuana authorization; to
deal with the guard and others, they brought zip ties to subdue employees.
Gonzalez‘s coworkers testified they believed he was an unarmed guard, and there
was no evidence Matthews believed otherwise, or even that he knew a guard
would be present. Because nothing in the record reflects that Matthews knew
there would be a likelihood of resistance and the need to meet that resistance with
lethal force, the evidence failed to show Matthews ―knowingly engag[ed] in
criminal activities known to carry a grave risk of death.‖ (Tison v. Arizona, supra,
481 U.S. at p. 157.)
       The insufficiency of these details to distinguish Enmund aside, a larger
consideration is at issue here. The actions of Earl Enmund, the Tison brothers,
and countless other nonkiller felony murderers fall on a continuum, a spectrum of
culpability. To ask whether there is any variation at all between Matthews‘s
conduct and Enmund‘s is certainly relevant, but in doing so we do not simply
assume Enmund‘s conduct represents a constitutional maximum, i.e., the most
culpable one can be and yet still be constitutionally ineligible for death, such that
any variation would move one into the death-eligible zone. Nationally, thousands
of armed robberies occur each year; per Enmund, only roughly 1 in 200 results in
death. (Enmund v. Florida, supra, 458 U.S. at p. 800, fn. 24.) If Enmund‘s
actions represented the outer limit of conduct immune from death eligibility, Tison
would have been an easy case. It was not. We do not view Enmund as defining a
maximum for ineligibility for the death penalty, any more than we view the
egregious actions of the Tison brothers as a constitutional minimum level of
culpability for death eligibility.




                                          26
      Because on the evidence in the record no rational trier of fact could have
found Matthews‘ conduct supported a felony-murder special circumstance, the
jury‘s special-circumstance true finding cannot stand.




                                        27
                                  DISPOSITION
      We reverse the Court of Appeal‘s judgment as to defendant Lovie Troy
Matthews and remand for further proceedings not inconsistent with this opinion.
                                                WERDEGAR, J.


WE CONCUR:


CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




                                       28
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Banks
__________________________________________________________________________________

Unpublished Opinion NP opn. filed 8/29/13 – 2d Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S213819
Date Filed: July 9, 2015
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Gail Ruderman Feuer

__________________________________________________________________________________

Counsel:


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

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

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Marc A. Kohm, Peggy Z. Huang, Keith H. Borjon and Paul M. Roadarmel, Jr.,
Deputy Attorneys General, for Plaintiff and Respondent.




                                                   1
Counsel who argued in Supreme Court (not intended for publication with opinion):

Danalynn Pritz
3625 East Thousand Oaks Boulevard, Suite 182
Westlake Village, CA 91362
(844) 805-3262

Paul M. Roadarmel, Jr.
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2396




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