Filed 3/24/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re ADAM LOZA,

on Habeas Corpus.

 B279566

 (Los Angeles County

 Super. Ct. No. TA087610)

ORIGINAL PROCEEDINGS; petition for writ of habeas 

corpus. William R. Chidsey, Judge. Petition denied.

Matthew Alger, under appointment by the Court of Appeal, 

for Petitioner.

Xavier Becerra, Attorney General, Kathleen A. Kenealy, 

Acting Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney 

General, Victoria B. Wilson, Supervising Deputy Attorney 

General, Viet H. Nguyen, Deputy Attorney General, for 

Respondent.
2

INTRODUCTION

A jury convicted petitioner Adam Loza of two counts of first 

degree murder and two counts of attempted robbery. The jury 

found true the Penal Code section 190.21special circumstance 

allegations that the murders were committed while petitioner 

was engaged in the attempted commission of a robbery or 

burglary. In accordance with the section 190.2 robbery/burglary

special circumstance findings, the trial court sentenced petitioner 

to consecutive prison terms of life without the possibility of parole

on his murder convictions.

On direct appeal, petitioner argued, among other things,

that insufficient evidence supported the jury’s robbery/burglary

special circumstance findings. We affirmed the judgment of 

conviction in an unpublished opinion, People v. Loza (May 7, 

2010, B212250) (Loza).

In 2015, the California Supreme Court held in People v. 

Banks (2015) 61 Cal.4th 788 (Banks) that, under section 190.2, 

subdivision (d), an aider and abettor of felony murder who lacks 

the intent to kill may be sentenced to a term of life without the

possibility of parole only if the aider and abettor was a “major 

participant” in the crime and acted with “reckless indifference to 

human life.” Relying on Banks, petitioner filed a petition for writ 

of habeas corpus in the Supreme Court challenging the 

sufficiency of the evidence supporting the jury’s robbery/burglary 

special circumstance findings. Citing Banks, the Supreme Court 

ordered the Secretary of the Department of Corrections and 

 

1

All statutory citations are to the Penal Code unless 

otherwise noted.
3

Rehabilitation to show cause in this court “why petitioner is not 

entitled to the relief requested.”

Having reviewed the record in light of our Supreme Court’s 

most recent guidance (namely Banks, supra, 61 Cal.4th 788 and 

People v. Clark (2016) 63 Cal.4th 522 (Clark)) concerning a 

defendant aider and abettor’s culpability along the so-called 

Enmund-Tison continuum (Enmund v. Florida (1982) 458 U.S. 

782 (Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison)), 

we hold that sufficient evidence supports the jury’s section 190.2

robbery/burglary special circumstance findings in this case. 

Accordingly, we deny the petition for writ of habeas corpus.

BACKGROUND

I. Factual Background

For purposes of our analysis, we repeat the factual 

background set forth in our unpublished opinion in Loza:

“During the early morning hours of November 4, 2006, 

[petitioner] was riding around in a red Ford Explorer driven by 

co-defendant Julio Perez. [Fn. omitted.] Co-defendant Eric 

Sanford, Gilbert Rivera, Christopher Perez (‘Christopher’) and 

Sara Graeff were passengers. Christopher is Julio Perez’s 

brother. He was dating Graeff at the time. They had been 

drinking beer.

“At some point, Perez saw co-defendant Sanford and 

stopped the car. [Fn. omitted.] Sanford came up to the Explorer 

and said, ‘I just shot someone in the head. Let me in the car. Let 

me in the car.’ The occupants of the Explorer thought Perez was 

kidding. Sanford got into the Explorer. At some point, he put the 

gun in the back of the Explorer.
4

“There was a discussion about stealing some beer. Sanford 

stated: ‘Let’s go get some beer, I’m down, I’m down.’ [Petitioner]

stated that he would hold the door for Sanford.

“About 4:00 a.m., Perez drove to a Mobil service station 

located at 22240 Avalon Boulevard in Carson (hereafter ‘Mobil’). 

The Mobil was open 24 hours a day and consisted of a gas station, 

automotive repair garage, and a Mobil mini convenience store. 

The Mobil sold beer, but the beer coolers were locked from 2:00 

a.m. to 6:00 a.m. At 4:05 a.m., [co-defendant] Perez purchased 

five dollars worth of gasoline. At 4:07 a.m., [co-defendant] Perez 

pumped the gasoline. He then drove the Explorer to the side of 

the Mobil.

“[Petitioner], Perez and Sanford got out of the Explorer. 

Perez gave a sweater to [petitioner], who put it around his head. 

Graeff told police that [petitioner] gave the gun to Sanford. 

[Petitioner] and Sanford walked towards the Mobil. Perez stayed 

behind inside the Explorer. About three minutes later, Sanford 

and [petitioner] ran back and got inside the Explorer. Perez 

drove away. [Petitioner] was hysterical and yelling, ‘You just 

shot them. You just shot them. You just shot them. I can’t 

believe you just shot them.’ Someone said to Sanford: ‘You shot 

them? Did you really shoot them?’ Sanford stated, ‘I counted 

down, and I told them to give me their money, and they didn’t—

they didn’t give it to me fast enough, so I shot them.’

“At 5:00 a.m., Ronald Hasty, the owner of the Mobil, went 

to the Mobil. There, he found the front door unlocked. Hasty 

looked for his two employees, Eduardo Roco and Ester Ortiega, 

who had been working the overnight shift. Roco had been 

working at the Mobil for a ‘few years,’ and primarily worked the 
5

overnight shift. Ortiega had been working at the Mobil for a 

couple of weeks and was being trained by Roco.

“Hasty did not see Roco and Ortiega. The window of the 

bullet proof glass booth was open about 24 to 30 inches. The cash 

register was inside this booth. Hasty walked to the clear bullet 

proof glass door of the booth and saw Roco and Ortiega lying dead 

on the floor. Hasty called 911.

“Los Angeles County Deputy Sherriff Tanya Brown 

responded to the call. Deputy Brown observed that the Mobil’s 

cash register was enclosed in a bullet proof glass booth, but the 

window to the booth was open. Behind the cash register, Roco 

and Ortiega were lying, dead. On the counter, there were three 

‘Slim Jims’ and a pack of ‘Apple Sour Candies.’

“Roco had suffered a rapidly fatal gunshot wound to the 

chest with an exit wound in his back. Ortiega had suffered a 

rapidly fatal gunshot wound to her upper left back with the bullet 

in the right side of her chest.

“Fingerprints were taken from the Slim Jims and Sour 

Apple gummy candies. Five latent prints were found on the Slim 

Jims. Sanford’s left middle fingerprint matched a print found on 

one of the Slim Jims.

“On November 11, 2006, [petitioner] was interviewed by 

Los Angeles County Sheriff’s Detective Dan McElderry and 

Sergeant Ken Perry. [Petitioner] stated that when Sanford first 

got into the Explorer, he showed them a revolver. Perez told 

Sanford to put the gun in the back of the Explorer and he 

complied. At the Mobil station, after Perez purchased gas, 

[petitioner] suggested that they do a beer run. Sanford stated: 

‘You gonna buy a beer, man you might as well just go in and rob 

them.’ [Petitioner] agreed to hold the door open for Sanford.
6

“[Petitioner] said that he ‘always comes over here to this 

gas station’ and that the clerk knew him and his family. Perez 

told [petitioner] to take his shirt. [Petitioner] used this shirt to 

cover his head. Sanford said to [petitioner]: ‘I’m going in there, 

you just hold the door.’ [Petitioner] waited outside the Mobil for 

about one minute, then went inside. He saw Sanford walk up to 

the register and say: ‘Give me the money.’ The male clerk said: 

‘[T]here’s no money. There’s a drop safe.’ Sanford said: ‘Man, 

you got five seconds.’ The male clerk said: ‘Shoot me.’

[Petitioner] heard ‘two soft little pops.’ Sanford said: ‘Let’s get 

out of here. Let’s get out of here.’ They ran back to the Explorer 

and got inside. The Explorer drove off.

“Sanford testified in his own defense at trial. He went into 

the Mobil to buy something to eat. He did not have a gun. As he 

was walking toward the Mobil, he asked the occupants of the 

Explorer whether they wanted anything. He saw Perez hand 

[petitioner] a shirt. While Sanford was in the Mobil buying food, 

[petitioner] came in the store and ordered the clerks to give him 

money out of the cash register. When the clerk stated that the 

money was in the drop safe, [petitioner] shot both clerks.

“[Petitioner] testified on his own behalf at trial. He stated 

that Sanford had a gun when he got into the car. [Petitioner] did 

not want to do a beer run, but agreed to hold the door for 

Sanford. He put his shirt over his head because he knew the 

male clerk. He did not see anyone with a gun. He did not know 

that Sanford was armed. He believed that Sanford was going to 

do a beer run, but Sanford instead brought candy to the counter. 

Sanford leaned on the counter and said: ‘Give me the money.’

The male clerk replied: ‘There’s no money.’ Sanford said: ‘I ain’t 
7

playing. You got five seconds.’ [Petitioner] ran back toward the 

Explorer. As he was running, he heard two ‘pops.’”

II. Procedural Background

A jury convicted petitioner of two counts of first degree 

murder (§ 187, subd. (a)) and two counts of attempted robbery 

(§§ 211/664). The jury found true the special circumstance 

allegations that the murders were committed while petitioner 

was engaged in the attempted commission of a robbery or 

burglary (§ 190.2, subd. (a)(17)) and that petitioner was convicted 

of more than one first degree murder (§ 190.2, subd. (a)(3)). The 

jury also found true the allegation that a principal was armed in 

the commission of the offenses. (§ 12022, subd. (a)(1).) The trial 

court sentenced petitioner to consecutive prison terms of life 

without the possibility of parole on his murder convictions, plus 

13 years and four months.

Petitioner appealed from the judgment of conviction, 

arguing, among other things, that the evidence was insufficient 

to support the jury’s robbery/burglary special circumstance 

findings and that the trial court erred in instructing on the 

multiple murder special circumstance allegations. We affirmed 

the robbery/burglary special circumstance findings, struck the 

multiple murder special circumstance findings, corrected 

sentencing errors not relevant to petitioner’s instant petition for 

writ of habeas corpus, and otherwise affirmed the judgment.

On June 17, 2010, petitioner filed a petition for writ of 

habeas corpus in the California Supreme Court (S183620) in part 

challenging the sufficiency of the evidence supporting the jury’s 

robbery/burglary special circumstance findings. On January 19, 

2011, the Supreme Court denied the petition.
8

On April 20, 2012, petitioner filed a petition for writ of 

habeas corpus in this court (B240643) arguing that defense 

counsel provided ineffective assistance in preparing for and 

defending petitioner at trial. On May 17, 2012, we denied the 

petition.

On June 11, 2012, petitioner filed a petition for writ of 

habeas corpus in this court (B241768) arguing prosecutorial 

misconduct and that the trial court erred in failing to give the 

jury a unanimity instruction concerning the target offense he 

allegedly committed for purposes of the felony murder guilty 

verdicts and the robbery/burglary special circumstance findings. 

On June 29, 2012, we denied the petition on the merits and as 

procedurally defaulted.

On October 1, 2012, petitioner filed a petition for writ of 

habeas corpus in the California Supreme Court (S204300) 

challenging the sufficiency of the evidence supporting the jury’s 

robbery/burglary special circumstance findings. On October 17, 

2012, citing In re Clark (1993) 5 Cal.4th 750, 767-769, the 

Supreme Court denied the petition.

On December 1, 2015, after our Supreme Court decided 

Banks, supra, 61 Cal.4th 788, petitioner filed a motion in this 

court to recall the remittitur and for leave to file a supplemental 

brief based on Banks. On December 10, 2015, we denied the 

motion on the grounds that Banks “does not represent a change 

in the law” and “provides no basis for relief under the facts of this 

case.”

On January 14, 2016, petitioner filed the instant petition 

for writ of habeas corpus in the California Supreme Court 

claiming he was entitled to relief under Banks, supra, 61 Cal.4th 

788. On April 20, 2016, the Supreme Court requested an 
9

informal response on the merits. After the Department of 

Corrections and Rehabilitation filed an informal response and 

petitioner filed a reply to the informal response, the Supreme 

Court ordered the Secretary of the Department of Corrections 

and Rehabilitation to show cause in this court why petitioner is 

not entitled to the relief requested.

DISCUSSION

I. Sufficient Evidence Supports the Jury’s 

Robbery/Burglary Special Circumstance Findings

Petitioner contends that insufficient evidence supports the 

jury’s robbery/burglary special circumstance findings because the 

evidence fails to show that he was a major participant who acted 

with reckless indifference to human life. We disagree.

A. Standard of Review

“The standard of review for a sufficiency of the 

evidence claim as to a special circumstance is whether, 

when evidence that is 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.)
10

B. The Enmund-Tison Continuum

Two United States Supreme Court decisions, Enmund, 

supra, 458 U.S. 782 and Tison, supra, 481 U.S. 137, help define 

the constitutional limits for punishing accomplices to felony 

murder. (Banks, supra, 61 Cal.4th at p. 806.) The defendants’ 

conduct in those cases represent points on a continuum, a 

spectrum of culpability for felony-murder participants. (Id. at pp. 

800, 802, 811.) At one end of this Enmund-Tison continuum is 

“‘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.’ [Citation.]” (Banks, supra, 61 Cal.4th at p. 800.) 

At the other end are the “actual killers and those who attempted 

or intended to kill. [Citation.]” (Ibid.) “Somewhere between 

them, at conduct less egregious than the Tisons’ but more 

culpable than . . . Enmund’s lies the constitutional minimum” 

showing required for the imposition of death or life without the 

possibility of parole. (Id. at p. 802.)

In Banks, supra, 61 Cal.4th 788, our Supreme Court 

summarized the conduct of the defendant at issue in Enmund, 

supra, 458 U.S. 782 as follows: “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. [Citations.]” (Banks, 

supra, 61 Cal.4th at p. 799.)
11

Our Supreme Court explained that in Enmund, supra, 458 

U.S. 782, the United States Supreme Court “found a broad 

consensus against imposing death in cases ‘where the defendant 

did not commit 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.” (Banks, supra, 61 Cal.4th at p. 799.)

In Banks, supra, 61 Cal.4th 788, our Supreme Court 

summarized the conduct of the defendants at issue in Tison, 

supra, 481 U.S. 137 as follows: “Prisoner Gary Tison’s sons 

Ricky, Raymond, and Donald Tison 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 
12

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. ([Tison, 

supra, 481 U.S.] 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 risk of . . . death.”’ (Id. at p. 142.) 

The Arizona Supreme Court denied relief. (Id. at pp. 143-145.)” 

(Banks, supra, 61 Cal.4th at pp. 799-800.)

Our Supreme Court explained that in Tison, supra, 481 

U.S. 137, “[t]he 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.) 

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 
13

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 [California] electorate codified in section 

190.2(d).” (Banks, supra, 61 Cal.4th at p. 800.)

As the codification of the principles set forth in Enmund

and Tison, section 190.2, subdivision (d) provides in relevant 

part, “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 felony enumerated in paragraph (17) of 

subdivision (a) 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 special 

circumstance enumerated in paragraph (17) of subdivision (a) has 

been found to be true under Section 190.4.”

2

 Section 190.2, 

subdivision (d) “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, 61 Cal.4th at p. 798, fn. omitted.) There is 

significant overlap between being a major participant and having 

reckless indifference to human life. (Clark, supra, 63 Cal.4th at 

pp. 614-615.)

 

2 Murder in the attempted commission of a robbery is a 

special circumstance under section 190.2, subdivision (a)(17)(A).
14

C. Petitioner’s Placement Along the Enmund-Tison

Continuum

Considering the “totality of the circumstances,” we find 

that the specific facts of petitioner’s case place his conduct and 

state of mind on that side of the Enmund-Tison continuum 

sufficient to support the section 190.2 robbery/burglary special 

circumstance findings. (Banks, supra, 61 Cal.4th at p. 802.)

1. Major Participant

In deciding whether a defendant was a major participant in 

a special circumstance felony under section 190.2, subdivision (d), 

our Supreme Court has identified the following factors for 

consideration: “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? [Fn. omitted.] What did the 

defendant do after lethal force was used? No one of these 

considerations is necessary, nor is any one of them necessarily 

sufficient.” (Banks, supra, 61 Cal.4th at p. 803; accord Clark, 

supra, 63 Cal.4th at p. 611.)

Substantial evidence of several factors relating to 

petitioner’s role in the attempted robberies supports the 

conclusion that he was a major participant. Evidence certainly 

supports the finding that petitioner participated in planning the 

robbery. Indeed, the record contains evidence that petitioner first 
15

came up with the idea to steal from the Mobil station by 

suggesting they do a “beer run”—i.e., grab beer and run out of the 

store without paying for it. When Sanford embellished on 

petitioner’s original plan by suggesting they might as well rob the 

Mobil station, petitioner not only agreed to do so, but additionally 

volunteered that he would hold the door open to make sure

Sanford could escape.

3

And while we recognize that the Mobil 

station robbery did not require particularly sophisticated 

planning, petitioner nonetheless played a significant and 

relatively equal role vis-à-vis the other participants (namely 

Sanford and Perez) who contributed to what planning was 

necessary to accomplish it.

Also, with respect to the planning and execution of the 

armed robbery, evidence supports the conclusion that petitioner

was responsible for making sure that Sanford had the gun. 

Graeff told the police that petitioner took possession of Sanford’s 

gun and put it in the back of the vehicle when Sanford first joined 

up with petitioner and his friends. Graeff also told police that, 

when it came time to prepare for the robbery, petitioner then 

handed the gun to Sanford. From this, the conclusion may 

reasonably be drawn that petitioner personally handled the 

 

3

The idea to hold the door open was important to the 

robbery plan. The jury heard evidence that Sanford had 

previously been briefly trapped inside a CVS Pharmacy from 

which he tried to steal liquor because someone locked the door on 

him. Similarly, Perez’s brother had been trapped in an AM/PM 

mini-mart during an attempted “beer run” when someone 

jammed the door shut. Notably, the jury could have found that 

petitioner fully appreciated the importance of holding the door 

open because he had been outside the AM/PM when Perez’s 

brother was previously trapped. 
16

murder weapon and was responsible for supplying it to the 

shooter for use in the robbery. Indeed, it is noteworthy that, to 

do so, petitioner necessarily took the additional deliberate step of 

retrieving the gun from the back of the vehicle in which it had 

been stowed away to ensure that Sanford would have it available 

to execute the planned robbery.

The evidence also supports the conclusion that petitioner 

possessed awareness of Sanford’s dangerousness and careless 

attitude toward killing. When Sanford approached Perez’s 

vehicle, Sanford told petitioner and the others that he had just 

shot someone in the head. And although Graeff testified that the 

vehicle’s occupants believed Sanford was kidding, the jury did not 

have to credit Graeff’s personal belief and speculation as to how 

everyone else—including petitioner—interpreted Sanford’s 

statement. Moreover, even if Sanford had not, in fact, just shot 

someone,

4

and even if petitioner did not entirely believe Sanford 

had just done so, Sanford’s statement at the very least revealed 

that petitioner 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—indeed, 

apparently in a kidding manner. From this, the jury could have 

concluded that petitioner was well aware of the particular 

 

4

Petitioner argues that Sanford’s “claim to have shot 

someone in the head was not shown to be of a character to be 

taken seriously” because the prosecution did not present evidence 

that someone in the vicinity of where Sanford entered Perez’s 

vehicle had been shot on the night of the murders. This is beside 

the point because the relevant focus is on whether petitioner 

knew Sanford had done so or believed Sanford had done so 

(whether or not Sanford actually had).
17

dangers posed by arming Sanford for the robbery they jointly 

planned.

We also find particularly significant in determining 

petitioner’s status as a major participant his physical presence at 

the scene, involvement in the actual robbery, and inaction either 

in attempting to prevent the shootings or in assisting the victims. 

In Banks, supra, 61 Cal.4th at page 803, footnote 5, our Supreme 

Court noted, “In cases where lethal force is not part of the agreedupon plan, absence from the scene may significantly diminish 

culpability for death. [Citation.] 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 a corollary, there may be 

significantly greater culpability for accomplices who are present. 

In Tison, supra, 481 U.S. at page 158, the defendants were found 

to be major participants because each “was actively involved in 

every element of the kidnapping-robbery and was physically 

present during the entire sequence of criminal activity 

culminating in the murder” of the victims. (See Banks, supra, 61 

Cal.4th at p. 803, fn. 5 [noting Tison’s emphasis on the 

defendants’ “physical presence and active involvement in every 

step”].)

Here, petitioner went to the Mobil station convenience

store with Sanford. He then held the door for Sanford to allow for 

an escape once the robbery was complete. Petitioner watched

Sanford walk up to the register and continued to hold the door 

open as Sanford demanded money, warned one of the clerks he 

would shoot, gave that clerk five seconds to turn over the money, 

and then shot both clerks. When Sanford told the clerk he had 
18

five seconds to give Sanford the money and began counting down, 

petitioner did not intercede in any way. Instead, by continuing to 

hold the door for Sanford, petitioner provided safe passage out of 

the store immediately after the shooting. Further, after Sanford 

shot both clerks, defendant fled with Sanford to Perez’s vehicle 

and instructed Perez to flee, exclaiming, “Man, just go, just go, 

just go, just get out of here, man. Just go.”

On this record, we conclude there was substantial evidence 

that petitioner was a major participant. Far from being akin to a 

minor participant “getaway driver, sitting in a car away from the 

murder” (Banks, supra, 61 Cal.4th at pp. 802-803), petitioner 

helped plan the robbery, provided the shooter with the gun even 

after the shooter boasted he had just shot someone in the head,

was on scene for the robbery and held the door open to guarantee 

an escape, stood by watching as the killer counted down to the 

murder, rendered no assistance to either victim, and instead fled 

the scene with the murderer while screaming at the getaway 

driver to “just go.” Considering such conduct in its totality, we 

hold that petitioner falls squarely on the “major participant” side 

of the Enmund-Tison continuum. (Cf. Banks, supra, 61 Cal.4th 

at p. 805 [defendant was not a major participant where he was 

“absent from the scene” and there was “no evidence” of defendant 

planning the robbery, “no evidence” of defendant procuring 

weapons, “no evidence” defendant or the other participants had 

previously committed any other violent crime, and “no evidence 

[defendant] saw or heard the shooting . . . or that he had any 

immediate role in instigating it or could have prevented it”].)
19

2. Reckless Indifference to Human Life

“[T]he culpable mental state of ‘reckless indifference to life’ 

is one in which the defendant ‘knowingly engag[es] in criminal 

activities known to carry a grave risk of death’ [citation] . . . .” 

(People v. Estrada (1995) 11 Cal.4th 568, 577.) “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.” (Banks, supra, 61 Cal.4th at p. 801.) “[I]t 

encompasses a willingness to kill (or to assist in another killing) 

to achieve a distinct aim, even if the defendant does not 

specifically desire that death as the outcome of his actions.” 

(Clark, supra, 63 Cal.4th at p. 617.)

Relying on the Model Penal Code definition of acting 

recklessly,

5

our Supreme Court in Clark, supra, 63 Cal.4th at 

page 617 explained that recklessness has both subjective and 

objective elements. “The subjective element is the defendant’s 

conscious disregard of risks known to him or her. But 

recklessness is not determined merely by reference to a 

defendant’s subjective feeling that he or she is engaging in risky 

 

5

“The Model Penal Code generally defines acting recklessly 

as follows: ‘A person acts recklessly with respect to a material 

element of an offense when he consciously disregards a 

substantial and unjustifiable risk that the material element 

exists or will result from his conduct. The risk must be of such a 

nature and degree that, considering the nature and purpose of 

the actor’s conduct and the circumstances known to him, its 

disregard involves a gross deviation from the standard of conduct 

that a law-abiding person would observe in the actor’s situation.’ 

(Model Pen. Code § 2.02, subd. (2)(c).) [Fn. omitted.]” (Clark, 

supra, 63 Cal.4th at p. 617.)
20

activities. Rather, recklessness is also determined by an 

objective standard, namely what ‘a law-abiding person would 

observe in the actor’s situation.’ [Citation.]” (Ibid.) “[A]lthough 

the presence of some degree of defendant’s subjective awareness 

of taking a risk is required, it is the jury’s objective determination 

that ultimately determines recklessness.” (Id. at p. 622.)

Our Supreme Court has identified the following factors to 

consider in determining whether a defendant acted with reckless 

indifference to human life: knowledge of weapons, and use and 

number of weapons; physical presence at the crime and 

opportunities to restrain the crime and/or aid the victim;

duration of the felony; defendant’s knowledge of a cohort’s 

likelihood of killing; and the defendant’s efforts to minimize the 

risks of the violence during the felony. (Clark, supra, 63 Cal.4th 

at pp. 618-623.) As with the factors identified in Banks, supra,

61 Cal.4th at page 803 for determining major participant status, 

no one of the factors for determining reckless indifference “‘is 

necessary, nor is any one of them necessarily sufficient.’ 

[Citation.]” (Clark, supra, 63 Cal.4th at p. 618.)

Substantial evidence supports the conclusion that 

petitioner acted with reckless indifference to human life. In this 

regard, we note that factors demonstrating petitioner’s role as a 

major participant are highly relevant to the analysis of whether 

he acted with reckless indifference. (Tison, supra, 481 U.S. at p. 

153 [“These requirements significantly overlap both in this case 

and in general, for the greater the defendant’s participation in 

the felony murder, the more likely that he acted with reckless 

indifference to human life”]; see also Clark, supra, 63 Cal.4th at 

p. 615 [noting Tison’s observation that although the requirements 

are stated separately, “they often overlap”].)
21

As discussed above, more than simply knowing Sanford 

would use a gun during the robbery, petitioner supplied Sanford 

with it immediately beforehand. This is a significant factor 

indicating petitioner’s reckless indifference because, as also 

discussed above, Sanford told petitioner that he had just shot 

someone in the head, which put petitioner on notice of the 

increased likelihood of Sanford’s willingness to use the gun. 

Indeed, evidence adduced at trial indicates that petitioner 

actually harbored concern about Sanford’s potential instability 

and readiness to use the gun, as petitioner wanted Sanford to put 

away the gun when Sanford initially approached petitioner in 

Perez’s car because Sanford appeared to be “a little jumpy, a little 

jitterish.” 

Further, to the extent there is doubt as to petitioner’s

reckless indifference when he put the gun back into the hands of 

a jumpy and jittery Sanford before entering the store, any

objective observer would have appreciated the grave risk to life 

once Sanford entered the store and demanded money from the 

clerk while counting down from five and threatening to shoot. 

(See Clark, supra, 63 Cal.4th at p. 619 [noting reckless 

indifference of an observing accomplice might be found where 

“the murder is a culmination or a foreseeable result of several 

intermediate steps, or where the participant who personally 

commits the murder exhibits behavior tending to suggest a 

willingness to use lethal force”]; People v. Smith (2005) 135 

Cal.App.4th 914, 927-928 [a jury may find that a defendant 

“gained a ‘subjective awareness of a grave risk to human life’” 

during the commission of the crime].) In this regard, it is 

noteworthy that the shooting was not spontaneous or accidental; 

rather, Sanford made clear his intent to shoot, which afforded 
22

petitioner the time to observe and react before the murder. (Cf. 

Banks, supra, 61 Cal.4th at p. 807 [finding no reckless 

indifference where the killing “was apparently a spontaneous 

response to armed resistance from the victim”]; see also Clark, 

supra, 63 Cal.4th at p. 619 [noting that, for a defendant who had 

the opportunity to “observe his cohorts,” it “is fair to conclude 

that he shared in their actions and mental state”].)

As with petitioner’s role as a major participant, we find 

particularly significant in concluding that petitioner acted with 

reckless indifference his physical presence at the scene and his 

failure to make any attempt to prevent the shootings or to assist

the victims. In Clark, our Supreme Court noted that the United 

States Supreme Court in Tison, supra, 481 U.S. at page 158 

“stressed the importance of presence to culpability.” (Clark, 

supra, 63 Cal.4th at p. 619.) A defendant who is present has “an 

opportunity to act as a restraining influence on murderous 

cohorts. If the defendant fails to act as a restraining influence, 

then the defendant is arguably more at fault for the resulting 

murders. [Citation.]” (Ibid.) A defendant who is present also 

has the opportunity to assist the victim. (Ibid.)

But petitioner neither intervened to dissuade Sanford from 

shooting either clerk nor came to either clerk’s aid after the 

shootings. Instead, petitioner manned the escape route while

Sanford shot the clerks and then fled to avoid being caught. 

Petitioner now claims he had no opportunity to intervene in the 

killings, arguing: “[The] record shows that Sanford demanded 

money and the male clerk said there was no money because there 

was a ‘drop safe.’ Sanford threatened to shoot the clerks, saying, 

‘I ain’t playing,’ and telling the clerks they had five seconds. The 

male clerk replied, ‘Shoot me,’ and Sanford shot him. This does 
23

not show that Sanford actually gave the clerks five seconds so 

that petitioner had time to intervene.” 

A rational jury could disagree with petitioner’s view of the 

evidence. During his interview with law enforcement officers, 

petitioner said Sanford told the clerk that he had five seconds to 

give Sanford the money. Graeff also testified that Sanford said 

he had “counted down” before he shot the clerk. Sufficient 

evidence thus supports the conclusion that Sanford counted down 

from five to one before shooting the clerks.6 And in those five 

seconds, petitioner could have done any number of things to 

intercede or assist the victims—e.g., yell at Sanford to stop, try to 

halt the countdown, demand that they leave, distract Sanford, or 

attempt to calm Sanford, to name a few. But instead petitioner 

did nothing during that crucial time period other than stand idly 

by with indifference—with reckless indifference to human life, to 

be precise.

Finally, petitioner argues that some meaning should be 

ascribed to his “hysterical” demeanor upon returning to Perez’s 

vehicle after the shootings when he exclaimed: “You just shot 

them. You just shot them. You just shot them. I can’t believe 

you just shot them.” According to petitioner, this reaction “was 

not consistent with a realization, before the shootings, that 

Sanford would shoot someone during the robbery.” We disagree. 

Petitioner’s reaction to the murder evidences that he may have 

been surprised Sanford ultimately killed the store clerks, but, as 

our Supreme Court observed in Clark, the majority in Tison was 

unconvinced that the defendants’ expressions of “‘surprise, 

 

6

Even Sanford testified that the shooter gave the clerk four 

seconds to get money from the safe—though Sanford testified the 

shooter was petitioner and not him. 
24

helplessness, and regret’ over their father’s shooting of the 

kidnap victim (Tison, supra, 481 U.S. at p. 166 [Brennan, J., 

dissenting])” was necessarily sufficient to prevent a finding of 

reckless indifference to human life. (Clark, supra, 63 Cal.4th at 

p. 623.)

Here, we must look at the totality of the circumstances. In 

so doing, we hold that sufficient evidence supports the jury’s 

finding that petitioner’s participation in and presence during the 

armed robbery exhibited a reckless indifference to human life, 

notwithstanding any surprise he may have exhibited after the 

fact.

II. Procedural Bars

The People argue that petitioner’s claim that insufficient 

evidence supports the jury’s robbery/burglary special 

circumstance findings is procedurally barred because: (1) the 

claim was raised and rejected on direct appeal (In re Waltreus

(1965) 62 Cal.2d 218); (2) the claim was raised in a prior petition 

for writ of habeas corpus and denied (In re Miller (1941) 17 

Cal.2d 734); and (3) the claim that evidence adduced at trial was 

insufficient is not cognizable in a habeas petition (In re Lindley

(1947) 29 Cal.2d 709). Because we agree with the People on the 

merits—i.e., that sufficient evidence supports the jury’s 

robbery/burglary special circumstance findings—we need not 

address the People’s asserted procedural bars.
25

DISPOSITION

The petition for writ of habeas corpus is denied.

CERTIFIED FOR PUBLICATION

KIN, J.

We concur:

KRIEGLER, Acting P. J.

BAKER, J.

 

 Judge of the Superior Court of the County of Los Angeles, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.